Environmental Claims – Common (Law) Sense

Property owners and developers faced with cleanup costs quickly turn their minds to recovering those costs from historic polluters. In BC, those seeking such recovery enjoy many advantages under the province’s Environmental Management Act. But, the Act is not suited to every situation. 

If your property is contaminated, consider employing the common law, a body of law that has historically provided recourse for losses arising from environmental damage. While the Act is designed to facilitate recovery of one’s ‘remediation’ costs, what if you don’t have any hard costs but your property value has been impacted? Or, what if you can’t access the contamination or an odour or vapour is the problem?

Before modern environmental legislation, such situations were addressed by ‘common law’ claims such as nuisance and negligence, and today such claims can still be made. The Act has not killed the common law, but rather augmented it. 

When considering the potential utility of a common law claim, one approach is to determine whether the losses you have suffered or continue to suffer are in fact ‘costs of remediation’ under the Act. If not, the cost recovery provisions of the Act may not get you everything you might be entitled to, but one or more common law causes of action may do just that. 

In short, one’s environmental remediation costs and related losses can be varied in nature. As such, it may be necessary to use the common law to bolster a claim under the Act, and to provide a proper legal basis for recovering all that has been lost. 

If you have questions about the Act’s cost recovery provisions or the utility of the common law in such cases, please contact Richard Bereti or Adam Way or any other Environmental Law team.