[can.politics] Canada suing the US for pollution?

dave@lsuc.UUCP (02/22/87)

In article <234@pembina.alberta.UUCP> bjorn@alberta.UUCP writes:
>Has anyone looked into the possibility of suing the US in
>the US for damages resulting from pollutant originating in
>the US?  How about damages and controls?  I know it's possible
>for foreign entities to sue US entities (including the
>government) in US courts.  The law?  US law of course.
>
>So does someone (Dave Sherman can you help?) know enough about
>US pollution and/or liability legislation to answer these questions?

Liability for tort tends to be a matter of common law in the
U.S., as it is in Canada, though it's modified and refined by leigislation.

You don't define "suing the US". I don't think any cause of action
would lie against the US government, since the government isn't causing
the pollution. In general, if a government undertakes to provide a
certain measure of regulation or control, and then fails due to negligence,
there may be a cause of action, but there's no liability on the part
of government at any level for failing to legislate in a field.

(If there are existing US pollution laws which are not being enforced,
however, things would be a bit easier, though not much.)

Suing specific US polluters would also be problematic.
I can see some horrendous problems, some of them possibly
insurmountable. Examples:
	- jurisdiction: what court? the offender is in the US,
	  while the pollution complained of occurs in Canada
	- standing: who is the plaintiff? Individual Canadians?
	  What are their damages? The Canadian government? Perhaps.
	- what is the tort which gives rise to the cause of action?
	- evidentiary problems: demonstrating to the satisfaction of
	  a court the effects of a specific polluter on a specific
	  area of Canada
Don't bother giving answers to these; they're just examples of some
of the problems. This type of complaint is something more appropriate
to a non-legal body such as the World Court, perhaps, where issues of
jurisdiction and standing must be agreed on *before* anyone actually
gets to court.
-- 
{ seismo!mnetor  cbosgd!utgpu  watmath  decvax!utcsri  ihnp4!utzoo } !lsuc!dave

pptanner@watcgl.UUCP (02/23/87)

In article <1594@lsuc.UUCP> dave@lsuc.UUCP (David Sherman) writes:

>Don't bother giving answers to these; they're just examples of some
>of the problems. This type of complaint is something more appropriate
>to a non-legal body such as the World Court, perhaps, where issues of
>jurisdiction and standing must be agreed on *before* anyone actually
>gets to court.

The US does not recognize decisions of the World Court since the
Nicaraguan Government brought a complaint against the US to it.

dave@lsuc.UUCP (02/24/87)

In article <639@watcgl.UUCP> pptanner@watcgl.UUCP (Peter P. Tanner) writes:
>In article <1594@lsuc.UUCP> dave@lsuc.UUCP (David Sherman) writes:
>
>>Don't bother giving answers to these; they're just examples of some
>>of the problems. This type of complaint is something more appropriate
>>to a non-legal body such as the World Court, perhaps, where issues of
>>jurisdiction and standing must be agreed on *before* anyone actually
>>gets to court.
>
>The US does not recognize decisions of the World Court since the
>Nicaraguan Government brought a complaint against the US to it.

Which was precisely my point. The "World Court" isn't really a
court at all, since it has no power to enforce its judgments.
It's more like an arbitrator, which must have all issues of
jurisdiction and standing resolved by agreement between the
parties before it addresses the issue. Then its decisions are
binding (poitically, at lesat) in that the parties have agreed
beforehand to respect its decision.

This is similar, for example, to a civil dispute between two
Jews being resolved by a Beit Din, a rabbinic court. If the
litigants agree ahead to time to follow the judgment of the
Beit Din, the secular courts will then enforce the Beit Din's
judgment as between the parties. The same goes for any arbitrator.

David Sherman
The Law Society of Upper Canada
Toronto
-- 
{ seismo!mnetor  cbosgd!utgpu  watmath  decvax!utcsri  ihnp4!utzoo } !lsuc!dave