Environmental Liability in BC – Rarely Enough Lifeboats

When environmental laws are being crafted, there are as many approaches as there are jurisdictions. In BC, the legislature chose the ‘shoot, ready, aim’ approach. In environmental terms, this means there are two steps to determining who is responsible for a contaminated site. First, liability falls, by design, on almost everyone with an historical connection to the land. Second, those on the hook then have the chance to prove they should be ‘exempt’ from responsibility. So, initially, everyone is in the same boat, and only some will have lifeboats.

This ‘shoot first’ method applies whether it is a Ministry issuing a remediation order or a company suing to recover its costs after performing a cleanup. And once a person or company is named responsible, the onus falls on them to establish every element of one of the exemptions provided for in the legislation (EMA/CSR). That’s right, it is certainly not innocent until proven guilty, and the exemptions are not always so easy to prove.

Like most statutory regimes, however, there is a good dose of fairness built into BC’s. For the most part, fairness comes into play when a court is allocating the amount of liability to be shouldered by each responsible party. This allocation process will consider questions such as length of time on site, actual contribution to contamination, and failure to cleanup in a timely fashion. These are just some examples, because virtually any consideration that will lead to a fair allocation of cleanup costs may be considered.

Finally, there will always remain an arbitrary element to assigning blame for contamination, even the allocation process, because historic contamination rarely allows a clear view of ‘who did what, when’. Fairness may be ‘a’ goal under BC’s legislation, but ensuring contamination is ultimately cleaned up is ‘the’ goal.

If you have any questions surrounding responsibility, the exemptions, or allocation of cleanup costs, please contact Richard Bereti or Adam Way of Harper Grey’s Environmental Law group.