In the past 25 years of developments in Canadian environmental law, there has never been a time quite like this. We have a once in a generation opportunity to think beyond the silos individual federal statutes create, to consider what an integrated approach to environmental protection and sustainable prosperity would look like in Canada.
We last had the opportunity to look at federal environmental law holistically in the late 1980s, when the federal government first passed CEPA, then CEAA, developed its Green Plan, ratified UN conventions on ozone layer depletion, climate change, biodiversity and desertification, and endorsed the 1992 Rio Principles and Agenda 21. However, back then, while CEPA and the Green Plan made some efforts at integration, law reform in Canada tended to happen one Act at a time, one issue at a time.
In 2017, the federal government is in the midst of an unprecedented law reform effort that already includes most key federal environmental statutes, including CEPA, CEAA, the Fisheries Act, the National Energy Board Act, and the Navigation Protection Act, with the Species at Risk Act likely to follow. Other federal statutes, such as the Oceans Act, are also due for law reform.
So what are the opportunities in considering federal law reform through the lens of integration rather than statute-by-statute? The issue was the subject of a one day session in March 2017 at York University entitled: The Federal Environmental & Regulatory Review: Integration or Disconnection? Otherwise, it does not appear to have received much attention to date. This is surprising, given the many potential benefits of taking a holistic approach.
There are significant opportunities to make environmental statutes and regulations more administratively straight-forward. There are opportunities to make then more consistent, so that as individuals and businesses that encounter laws in one area, can transfer the knowledge gained to other areas. There are opportunities to improve the effectiveness of environmental law, by ensuring that lessons learned, about what works and what does not, are applied across the spectrum, and by ensuring the various parts work together efficiently and effectively. In short, a holistic and integrated approach to law reform has every opportunity to improve the effectiveness, efficiency and fairness of federal environmental law.
In the remainder of this post, I will briefly discuss a couple of areas that to me seem to have particular potential as cross cutting issues to be considered in the current law reform efforts involving CEPA, CEAA, the Fisheries Act, the NEB Act, and the Navigation Protection Act. I am confident that there are other opportunities, and my hope is that others will contribute to this important discussion by helping to identify these opportunities. The time is now. Many of the reform initiatives are still in their early stages, though some (such as the CEAA reform) may advance rapidly over the next few months.
An Environmental Appeals Tribunal or Court
One idea that in my view perfectly illustrates the broader opportunity is the concept of a federal Environmental Appeals Tribunal or Environmental Court. An important starting point for this discussion is the recognition that environmental law often involves the application of technical information from a range of disciplines in the natural sciences and engineering, along with social science data, economic data, and societal values and priorities to make decisions about policies, priorities, and about the approval and regulation of specific human activities.
Current approaches in environmental law have ultimately left those decisions within the almost unlimited discretion of elected officials. Over time and with experience, environmental law has, at times, become better at developing principles and criteria to guide these decisions and try to narrow the discretion. Unfortunately, most courts have, with some exception such as in the context of species at risk, generally resisted the invitation to review the adequacy and appropriateness of substantive decisions, leaving discretion practically unbounded even in areas where significant progress has been made to develop principles and criteria to guide decision makers. At the same time, legislatures have been reluctant to enshrine principles and criteria in law in a manner that would encourage appeal courts and tribunals reviewing decisions to engage in the substance of the decision made.
One opportunity presented by the current law reform efforts under way is to explore the various needs for independent oversight of critical process and substantive decisions under all federal environmental statutes ,and to establish a central federal environmental appeals tribunal or court with the specialized expertise needed to carry out efficient and meaningful oversight of decisions across the spectrum of federal environmental law. This would serve to ensure decisions made are consistent with appropriate principles and criteria enshrined in law, are effective, and fair, and are consistent with the general goals of environmental protection and sustainable prosperity, while retaining an appropriate level of discretion in the hands of elected officials with accountability through the political process.
To illustrate, an effective, efficient and fair EA process that contributes to environmental protection and sustainable prosperity requires appropriate decisions on the application of the process, process design, scoping, information gathering, analysis, decision-making and follow-up. Critical decisions about the scope of the assessment, the process, and appropriate analysis to predict the various impacts, risks, benefits and uncertainties of a proposed activity all have a significant impact on the information put before the decision maker and the public, and thus shape our perception of whether a proposed activity is in our long term interest. Basing these decisions on established principles and criteria rather than on political considerations while retaining the political accountability for the final decision can do much to enhance the EA process. I have discussed the important role of an independent appeal body for an effective EA process in previous posts. Similar opportunities exist to enhance regulatory processes under CEPA, the NEB Act, the Fisheries Act, and other federal environmental laws.
The risk that elected officials will make decisions that overvalue short term economic benefits over long term social, environmental and economic considerations in making key decisions along the way is high. This can result in narrow scoping, limiting public participation, accepting inadequate analysis, and failing to properly justify decisions made. At the same time, the Federal Court has been clear that it is uncomfortable reviewing such decisions on judicial review, and has tended to defer to elected officials. A specialised environmental appeals tribunal would offer the opportunity to have such key decisions reviewed by judges who have the specialized expertise to assess whether decision made are consistent with legislative guidance and goals. It would ensure that the political decisions made at the end of an EA process are transparent, accountable, and the result of a fair and open process. Similar approaches in New Zealand, Australia and a number of Canadian provinces (such as Ontario) have proven quite successful.
Principles and Goals of Regulatory Design
Much has happened to our understanding of effective regulation since the last wave of federal environmental regulations in the 1980’s. We have transitioned from a focus on command and control approach to a consideration of voluntary measures and economic instruments as part of the toolbox, to smart regulation approaches and polycentric governance approaches to deal with the complexities of today’s regulatory challenges. In this post, I will only illustrate the opportunity.
A few years ago, I was involved in a regulatory reform initiative involving aquaculture in Nova Scotia. In that process, we identified a number of regulatory design principles that may warrant consideration for environmental and resource management regulations more generally. We identified a number of goals of effective regulations, and proposed that regulators be accountable for making decisions with written reasons that demonstrate conformity with these principles. The goals included the following:
- Environmental protection and sustainable use of resources and environmental services
- Fairness in allocation of public resources
- Productive use of resources toward low impact for high value
- Compatibility with other sectors of the economy
- Social and economic benefits proportionate to the value of the resources used
- Protection of wild populations
- Meaningful public participation in decision making
- Attentiveness to plans, objectives, needs and priorities of local communities
- Supporting the efforts of the industry to grow by combining business success with higher environmental performance
- Regulation that is achievable, is enforceable, incorporates incentives to comply, and is efficient, timely, predictable and affordable for taxpayers and for industry
We similarly concluded that the following guiding principles should guide the design and implementation of the regulatory framework:
One thing in particular we have learned through the past few decades of experience with regulatory decision making is that conflicts over regulatory decisions often arise when regulators either fail to understand or ignore the values and aspirations of communities affected by regulatory decisions. This has at times resulted in growing and unnecessary conflict over activities that seem to offer clear and important benefits at a societal level. At other times, it has resulted in approval of activities that are inconsistent with the values and priorities of those affected, sometimes to the point of approving activities that do not offer net benefits at any scale.
Of course, the issue of regulatory design and in particular the concept of goals and principles that are enshrined in law in a manner that makes the decision maker accountable for their good faith application is connected to the concept of a federal appeals tribunal, as it could be the function of the tribunal to ensure decisions made by regulators are consistent with the legislative goals, principles and criteria, thus supporting more consistent and effective approaches to environmental regulation that allow us to more effectively pursue the integration of environmental protection with sustainable prosperity, a goal that has proven elusive so far.
These are issues that warrant consideration across the spectrum of federal environmental laws. They have as much application to EA as to the protection of fish habitat or navigable waters, as much application to the regulation of toxic substances and the regulation of energy projects. We would do well to consider these and other opportunities to improve the effectiveness, efficiency and fairness of environmental regulation in the reform of federal environmental law.
Of course, the opportunities are not limited to the two issues raised here. Another that comes to mind is the opportunity to think more strategically about the linking and tiering of decision-making. This includes issues such as the connection between regional, strategic and project assessments, but also includes the connection between assessments and regulatory processes, cooperation among federal departments in pursuing collective goals of environmental protection and sustainable prosperity, and cooperation among levels of government.
Professor of Law,
Associate, Marine & Environmental Law Institute
Katia Opalka says
There is no need for an environmental court. Environmental protection is technical but so is a lot of other stuff that comes before the courts. If the courts have been reluctant to override the discretion afforded to elected officials by statutes, that’s not because the courts don’t understand environmental science. It’s because they do know how to read a statute and in Canada, environmental statutes say “the minister may (…).” Replace “may” with “shall” and your problem is solved (Massachusetts v. EPA, 127 S. Ct. 1438 – 2007).
Meinhard Doelle says
Interesting perspective, thanks for sharing your thoughts on this. I have a different view on the value of environmental courts and appeals tribunals for a number of reasons. First, I agree that environmental laws should be written in more mandatory language, particularly when it comes to our expectation of government. I also agree that courts have demonstrated their ability to deal with technical issues in other areas.
However, that does not mean courts have been efficient, effective and fair in dealing with reviews of environmental decisions. Courts have shown ever increasing deference even in the face of mandatory language, particularly since the SCC decision in Dunsmuir. There are some exceptions to this (such as some species at risk cases), but the general trend is not encouraging. Furthermore, experience in NZ and Australia have shown that the benefits are multiple. Environmental courts not only make more informed and more consistent decisions because of their expertise in the subject matter, but they can also be much more efficient. A federal appeals tribunal, for example, could offer expedited reviews of time sensitive decisions, something that general courts have generally not been able to do. Some provinces in Canada also have had very positive experiences with specialized appeals tribunals.