One of the most wrenching questions in environmental law is who should pay for historic contamination which was legal at the time. There is no moral difficulty in holding today’s polluters responsible for the consequence of their acts. But historic contamination, the unintended result of perfectly lawful conduct, is different. Inco has been ordered to pay $36 million in damages for lost property value, after 2000, due to nickel emissions before 1984 that were legal at the time: Smith v. Inco 2010 ONSC 3790
Is this just?
The rule of law is an essential part of the fundamental bargain that . . . [more]