One of the most important and least scrutinized areas of environmental policy is the exercise of administrative discretion. Those committed to environmental action tend to focus on law reform, international treaties, and political commitments--for example, election proposals for carbon taxes and pipelines, or environmental protections in global protocols and trade agreements. Many proponents of stronger environmental protection have focused their attention on the goal of a constitutional amendment recognizing an explicit right to a healthy environment, (1) while others seek recognition of environmental protection within existing Charter rights. (2) As the rights conversation evolves, (3) advocates must continue to grapple with the day-to-day reality of how decisions that affect environmental preservation are currently made.
The daily reality of decision making in the environmental sphere most often turns on a group of public servants, working for federal, provincial, municipal, or Indigenous governments (or agencies, boards, and commissions) and exercising statutory discretion. Settings of statutory discretion arise where the statute empowers officials to make a judgment--whether to exercise a specific authority or not, and if so, in what ways and at what times. The judgment calls these officials make--which regulations will accompany environmental legislation, who will be appointed to environmental boards and regulatory agencies, which development proposals to approve, the nature and scope of mitigation requirements to put in place on those developments that are approved, whose voices will have input in the decision making, how statutory criteria will be interpreted, and more--have cumulatively come to define the state of environmental protection in Canada.
Because of the importance of discretion in so many critical areas for environmental preservation, we argue this area merits deeper scrutiny. We also see a compelling link between recognizing constitutional principles in the field of ecological sustainability on the one hand, and cohering the exercise of discretion around principles of environmental preservation on the other. Constitutional principles that guide administrative discretion may come from several sources. In this study, we focus on the potential of underlying or unwritten constitutional principles (UCP) to ensure environmental discretion is not exercised in ways that are inconsistent with the values of ecological sustainability.
This analysis will proceed in three stages. First, we explore the dynamics of discretion in environmental law in Canada. Second, we advance the view that ecological sustainability should be recognized as an underlying or unwritten constitutional principle, which could function as an effective constraint on environmental discretion. Third, we analyze the principle of ecological sustainability through the lens of reconciliation with Indigenous peoples and section 35 of the Constitution Act, 1982. (4) We conclude that ecological sustainability is an underlying principle of the Canadian constitutional order and that its recognition by courts and governments could be a meaningful step towards securing our common future.
DISCRETION IN ENVIRONMENTAL LAW
Canadian environmental law is characterized by profound and pervasive discretion at every level of decision making. (5) While some discretion is clearly necessary and important to the day-to-day decision making of environmental regulators, there is a deep tension between the salutary text of many environmental statutes and the troubling results of discretionary decisions on the ground. (6) In this section, we explore the sources and exercise of discretion in environmental contexts, and the relationship between the exercise of discretion and the rule of law.
THE SOURCES AND EXERCISE OF ENVIRONMENTAL DISCRETION
Discretion may arise in many ways that are relevant to environmental decision making, (7) but in this study, we focus on two contexts. First, the executive branch is empowered under statutes to make regulations for the implementation or enforcement of statutory standards. While statutes are the subject of parliamentary debate and public scrutiny, regulations tend to be issued with far less attention and oversight. Second, executive officials under both statutes and regulations are empowered to exercise discretion over particular decisions (to approve or reject proposals, to issue or refuse to issue permits, etc.). Each of these settings of discretion has the potential to undermine the environmental protections that Parliament or provincial and territorial legislatures have put in place.
Parliament and the provincial legislatures have enacted broad framework statutes that appear highly protective but are chronically "undermined by their broadly discretionary nature". (8) As David R. Boyd has explained, "[e]nvironmental laws are almost always drafted in such a way as to give Canadian governments the power to take action or meet specified standards but no duty to take action or meet those standards." (9)
The hallmark of discretion as a legal concept is that decision makers may exercise choice and apply judgment where it is present. Those choices and judgments are always demarcated by legal authority and are guided in broader ways by the purposes and goals (whether explicit or implicit) that the statutory authority is intended to advance. Moreover, as Jocelyn Stacey notes:
Many of the details and difficult trade-offs required by environmental statutes are left to regulations. This means that the executive has discretion both over whether to issue regulations and what those regulations should say.... [R]egulations issued by the executive exist in a legal black hole: The failure to issue regulations is not justiciable, regulations are subject only to vires review, and they are not subject to the requirements of procedural fairness. (10) Tensions emerge when the exercise of discretion appears out of alignment with the goals of the statutory authority. The discretion exercised through environmental regulations, for example, often appears inconsistent with the overarching goals of their enabling legislation. Consider the core charging provision of Ontario's Environmental Protection Act, (11) which states that "a person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect", (12) with "adverse effect" defined broadly to include, inter alia, "impairment of the quality of the natural environment for any use that can be made of it, injury or damage to property or to plant or animal life, harm or material discomfort to any person, [and] an adverse effect on the health of any person." (13) This provision would appear to provide meaningful protection for human health and ecological integrity in Ontario. However, under the regulation-making powers in the EPA, (14) the Lieutenant Governor in Council has authorized the discharge of a plethora of substances at levels that are known to cause serious harm to human health and the environment. (15) Indeed, the ministry even has the discretion to make regulations that set no emissions limit at all and make no attempt to reach health-based standards. (16)
In one of Canada's most polluted airsheds, the Indigenous community of Aamjiwnaang (near Sarnia), (17) for example, the Province of Ontario has negotiated a special technical standard with industry for the carcinogenic pollutant benzene. Instead of being required to meet the regular health-based standard that applies elsewhere in Ontario, the six petrochemical and petroleum facilities located closest to the Aamjiwnaang community are allowed "to install the best available technology that is 'economically achievable' rather than meet the health-based standard, regardless of the impact on Aamjiwnaang." (18) The new technical standard for benzene contains no hard limit on emissions of this highly toxic chemical. (19) As explained below, such regulatory decisions are difficult to challenge under public law and the EPA has also attempted to exclude liability under private law. (20)
In addition to the important discretion to make regulations, environmental regulators enjoy a whole suite of discretionary powers to issue and amend site-specific approvals and administrative orders (such as stop orders or control orders), and to decide whether to investigate and/or prosecute environmental violations. Taking up the Aamjiwnaang example once again, the Environmental Commissioner of Ontario has identified a number of reasons for this community's remarkably high levels of pollution, including the ministry's failure to include certain kinds of emissions (notably gas flaring) in its regulatory calculations and its inadequate treatment of cumulative impacts from the multiple sources of pollution in Aamjiwnaang. (21) The Commissioner explains that "Ontario regulates each facility's air emissions as if it were the only emitter". (22) In communities with one or two significant polluters, this legal fiction may have little practical significance. In a pollution hotspot such as Aamjiwnaang, it is literally a life-threatening defect in environmental policy. (23)
The phenomenon of framework legislation whose goals of environmental protection can be undermined by the broad discretion accorded to public officials is mirrored at the federal level. For example, section 35(1) of the Fisheries Act prohibits "any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery", (24) but section 35(2) permits the Minister to "authorize such harm pursuant to whatever terms and conditions he or she deems fit." (25) Even in the national parks, where one might reasonably expect environmental protections to be strongest, section 67...
IN SEARCH OF AN ECOLOGICAL APPROACH TO CONSTITUTIONAL PRINCIPLES AND ENVIRONMENTAL DISCRETION IN CANADA.
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