Environmental law’s escalation to fundamental concepts in the Anthropocene

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This text is a detailed and referenced version of the article published in CBA’s National Magazine, “Can environmental law ever be saved from ruin?”

Environmental law is often compared to “the Law of the Horse”.[i] The concept commonly refers to bodies of law bringing together rules and cases that share very little apart from their subject matter, as would rules pertaining to the sale of horses, race horses licensing or veterinarian care for horses.[ii] The comparison suggests that environmental law is a motley collection of rules lacking internal coherence and mostly devoid of unifying principles.[iii] It recalls the American origins of environmental law in the late 1960s and early 1970s as a “rule of law” litigation strategy reliant on the judicial review of government agency discretion to halt undesired projects.[iv] The haphazard emphasis on formal rules and a corresponding lack of foundational values also questions whether the legal field is bound to unravel in the future as the transient manifestation of an in-vogue subject matter. Such an outcome might be prefigured in the apparent fragmentation of environmental law into tangential domains such as water law and disaster law, or in calls to merge environmental law with other fields such as energy law.[v]

Against this backdrop, the advent of the Anthropocene could bring about the demise of environmental law. A number of factors point in that direction.

The primary function of environmental law is vanishing. Nature unspoiled by human development has disappeared, and law only protects an unnatural residue. The remotest corners of the world are affected by human activity pushing against planetary boundaries, threatening the resilience of the global ecosystem.[vi] Biodiversity is being destroyed at such a rate that we have entered the sixth mass extinction, a cataclysmic event on the geological scale.[vii] Climate change will soon reach thresholds beyond which the planet’s ecosystem might become fundamentally inhospitable to human life.[viii] To the relentless global dynamics of nature’s collapse, environmental law unsystematically opposes, in egregious cases, local habitat conservation, single-species protection, generic effluent concentrations, ad hoc licensing conditions on a project basis, bans for some substances proven toxic beyond any doubt, standards bilaterally negotiated between the industry and the government…[ix] In other words, environmental law’s traditional mechanisms appear powerless and unsuited to the task.[x]

Environmental law’s overall failure in protecting nature has resulted in a two-pronged evolution.[xi] On one hand, environmental law turns the traditional approach to conservation on its head by sanctioning environmental degradation in some cases, as with de facto species triage under endangered species legislation, a phenomenon whereby the extinction of some critically endangered species is allowed in order to save others.[xii] Environmental law forsaking its original ethos of nature conservation is nowhere more apparent than in the inclusion of “climate technology”, e.g. geoengineering through the injection of aerosol pollutants in the atmosphere, as an implementation mechanism for the Paris Agreement under the UNFCCC framework, the world’s foremost legal instrument to combat climate change.[xiii]

On the other hand, environmental law increasingly aims at restoring environmental quality. Legal mechanisms imposing the restoration of conditions close or equivalent to a natural state essentially require the human modification of the environment. Reinforcing and expanding prohibitions to buck business-as-usual trends in environmental degradation would have been more straightforward. Instead, a flight forward guided by the millenarian trust in scientific innovation and law’s reformative power resulted in environmental law attempting to reverse damage it failed to prevent in the first place.[xiv] For example, the ambitious European Water Framework Directive was adopted in 2000 with the aim of restoring degraded aquatic ecosystems to good ecological status.[xv] Yet, the Directive’s implementation has been marred by delays as well as daunting technical and organizational challenges.[xvi] As a result, the Directive has not only failed in restoring ecosystem quality but also in maintaining ecological status.[xvii] In England for example, water bodies at good or better status have fallen from 26% in 2009 to 22% in 2015.[xviii] Under the Canadian Fisheries Act, the no-net-loss principle requiring compensation for the alteration or destruction of fish habitat caused by development projects can be implemented through the artificial creation of out-of-site habitat replacements, but the overall trend in fish habitat loss has continued unabated.[xix] In Alberta, the regime for the remediation and reclamation of oil and gas well sites, so that they can support activities similar to those naturally occurring before the sites were disturbed, could face a $100 billion shortfall preventing the cleanup of tens of thousands of abandoned and inactive wells.[xx]

Whether born from the implicit relinquishment of conservancy or from the conceit of replacing nature by mimicry, environmental law’s failings can be traced to a lack of political will.[xxi] Governments in Canada approach environmental challenges mostly through short-term, one-time only symbolic measures, but are reluctant to intervene in ways that would address environmental degradation and ensure sustainability.[xxii] Environmental law has been impaired by a drive to shoehorn environmental protection into business-as-usual development, through mechanisms such as deregulation, procedural streamlining and market-based solutions.[xxiii] For example, the first Canadian Environmental Protection Act review in a decade only proposed minor improvements mindful of the Canadian economy to maintain the country’s competitive advantage in the global marketplace and avoid unnecessary trade barriers.[xxiv] Moreover, the administrative discretion to authorise projects or to regulate development, which is at the heart of Canadian environmental law, generally allows the executive branch to take decisions that circumvent statutory goals aimed at environmental protection, and authorise degradation without taking into account cumulative effects.[xxv] In fact, when administrative discretion is not broad enough to accommodate the political bias in favor of keystone projects, environmental law’s constraints on development are often discarded. In Quebec for example, the government adopted a special law exempting a cement factory that became the province’s largest GHG emitter from the applicable environmental impact assessment process, and regulations were tailored to exempt oil exploration at a candidate site for UNESCO word natural heritage from the applicable authorisation process.[xxvi]

The difficulty in simultaneously pursuing the two irreconcilable goals of environmental protection and economic growth coupled with the emphasis on remediation and restoration have led to a marked increase in the complexity of environmental law.[xxvii] Environmental restoration implies that law should take charge of ecosystem functions and processes in their unfathomable intricacies.[xxviii] Market-based instruments, tradeable pollution permits, responsive environmental taxation and administrative streamlining for developers also require an extensive regulatory apparatus with corresponding financial and human resources to be implemented effectively without compromising environmental quality.[xxix] Environmental law has long picked the low-hanging fruits and now faces the kind of intractable problems generated by the development-first approach: the bee colony collapse syndrome, pervasive microplastic pollution, surface water eutrophication, widespread exposure to endocrine disruptors and carcinogens…[xxx] Yet the State is in retreat and unwilling or unable to adequately finance the administration, application and enforcement of the increasingly burdensome and wide-ranging legal framework that could address these emerging environmental issues.[xxxi] To sum it up, environmental law’s reliance on ever-more expensive solutions faces ever-diminishing returns until the costs of additional complexity finally outweigh expected benefits.[xxxii]

Confronted with an increasingly damning verdict of impotence, environmental law’s frontline appears to turn away from the sprawling regulatory model and escalate to loadstone concepts. Some attempt to identify a grundnorm in the form of a legally binding overarching goal that would structure and orient international environmental law.[xxxiii] Efforts are made to substantiate fundamental concepts such as public trust, common heritage and public custody.[xxxiv] Ecological sustainability could evolve into an unwritten constitutional principle binding courts and governments.[xxxv] Canadian Charter rights are invoked to force the federal government into action on climate change.[xxxvi] Others call for granting rights to elements of the natural environment like rivers, as some jurisdictions already do.[xxxvii]

Environmental law’s turn to fundamental legal principles offers solutions to many current and emerging issues. First, in a throwback to the discipline’s origins, it converges on legal recourses in a way that counters excessive administrative discretion and refocuses on environmental law’s binding character and enforcement.[xxxviii] Along these lines, some emphasize the usefulness of private law remedies compared to statutory environmental law.[xxxix] Second, it suggests attempts at imbuing the discipline with guiding values. Calls are made to better define substantive goals such as sustainable development.[xl] Third, the turn to fundamental legal principles also makes environmental law reliant on simpler and more abstract rules that are more robust and resilient than complex systems to abrupt changes or unforeseen crises and emergencies.[xli] Fourth, it attempts to side-track the lack of political drive for environmental protection. Perhaps most importantly, by doing so it actually forces political engagement at governmental level in the hope that serious, “collaborative policy making will deliver the rapid and systematic changes we need”.[xlii]

[i] Dan Farber, “The Horse Manifesto: ‘The Law of the Horse’ is a disparaging term for a legal field. We should embrace it.”(June 24, 2015), online: Legal Planet <legal-planet.org/2015/06/24/the-horse-manifesto/>; J.B. Ruhl & James Salzman, “Climate Change Meets The Law of The Horse” (2013) 62:5 D.L.J. 975.

[ii] Frank Easterbrook, “Cyberspace and the Law of the Horse” (1996) University of Chicago Legal Forum 7, online: Chicago Unbound <chicagounbound.uchicago.edu/uclf/vol1996/iss1/7/> : “Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on “The Law of the Horse” is doomed to be shallow and to miss unifying principles.

[iii] See Dan Tarlock, “Is There a There There In Environmental Law?”, (2004) 19:2 Journal of Land Use & Environmental Law 213.

[iv] Dan Tarlock, “The Future of Environmental Rule of Law Litigation: Sixth Annual Lloyd K. Garrison Lecture on Environmental Law”, (2000) 17:2 Pace Envtl. L. Rev. 237, online: Pace Environmental Law Review <digitalcommons.pace.edu/pelr/vol17/iss2/1/>; For an historical overview of Canadian environmental law, see Jamie Benidickson, Environmental law in Canada, 2d ed., Alphen aan den Rijn, Wolters Kluwer, 2016 at 41-47.

[v] With respect to water law, see Jamie Benidickson, “The Evolution of Canadian Water Law and Policy: Securing Safe and Sustainable Abundance” (2018) 13:1 McGill International Journal of Sustainable Development Law & Policy 2017; with respect to disaster law, see Jocelyn Stacey, “Vulnerability, Canadian Disaster Law And The Beast” (2018) 55 Alta L.Rev. 853 (situating disaster law’s central concept of vulnerability at the intersection of ecological and social factors, p.861); with respect to energy law, see Jody Freeman, “The Uncomfortable Convergence of Energy and Environmental Law” (2017) 41:2 Harv. Envtl L. Rev. 339. J.B. Ruhl, “Climate Change Adaptation and the Structural Transformation of Environmental Law, (2010) 40 Environmental Law 363, at 434-435, speculates that environmental law might split into two branches, one to address pollution control and conservation, and the other devoted to mitigation and adaptation, but see also id. at 402 & ff.

[vi] Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, Summary for policymakers of the global assessment report on biodiversity and ecosystem services, advance unedited version, 6 May 2019; United Nations Environment Programme, Report, GEO 6, “Global Environment Outlook 6” (4 March, 2019). See also Donella Meadows, Jorgen Randers & Dennis Meadows, Limits to Growth: The 30-Year Update, Vermont, Chelsea Green Pulishing, 2004, as well as Will Steffen et al., “Planetary Boundaries: Guiding Human Development on a Changing PlanetScience 347:6223 (13 February 2015) 736.

[vii] See Gerardo Ceballos, Paul Ehrlich & Rodolfo Dirzoand, “Biological Annihilation Via The Ongoing Sixth Mass Extinction Signaled by Vertebrate Population Losses And DeclinesNational Academy of Sciences 114:30 (July 10, 2017) E6089; James Ming Chen, “The Fragile Menagerie: Biodiversity Loss, Climate Change, and the Law” (2016) 93 Ind. L. J. 303.

[viii] Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts, Adaptation And Vulnerability, Cambridge, Cambridge University Press, 2014, online: The Intergovernmental Panel on Climate Change <www.ipcc.ch/report/ar5/wg2/>; Will Steffen et al., ”Trajectories of the Earth System in the Anthropocene“ PNAS 115:33 (August 14, 2018) 8252, online: <doi.org/10.1073/pnas.1810141115>; Elizabeth Bush & Donald Lemmen, ed, Canada’s Changing Climate Report, Ottawa, Government of Canada, 2019, online (pdf): Environment and Climate Change Canada <changingclimate.ca/site/assets/uploads/sites/2/2019/04/CCCR_FULLREPORT-EN-FINAL.pdf>; David Wallace-Wells, The Uninhabitable Earth: Life After Warming, New York, Tim Duggan Books, 2019.

[ix] See Stepan Wood, Georgia Tanner & Benjamin Richardson, “What Ever Happened to Canadian Environmental Law?” (2010) 37 Ecol. L. Quarterly 981, at 988-ff.; David Boyd, Unnatural law: rethinking Canadian environmental law and policy, Vancouver, UBC Press, 2003, at 277; Mary Christina Wood, Nature’s trust; Environmental law for a new ecological age, New York, Cambridge University Press, 2014, at 9, 13. The traditional approach in environmental law has been dubbed the “permissive regulation paradigm”: Michael M’Gonigle et al., “Taking Uncertainty seriously…” (1994) 32:1 Osgoode Hall L.J. 99. More generally, see Jamie Benidickson, Environmental law in Canada, 2d ed., Alphen aan den Rijn, Wolters Kluwer, 2016, as well as Meinhard Doelle & Chris Tollefson, Environmental law: cases and materials, 2d ed., Toronto, Carswell, 2013, in particular at 278-303.

[x] See “What Ever Happened to Canadian Environmental Law?” supra note 9; Joseph Castrilli, “Canada’s Main Environmental Law Isn’t Working”, The Star (July 26 2016) online: The Star <www.thestar.com/opinion/commentary/2016/07/29/canadas-main-environmental-law-isnt-working.html>; Mark Winfield, “An Unimaginative People: Instrument Choice in Canadian Environmental Law and Policy” (2008) 71 Sask. L. Rev. 79; Shaun Fluker, “Ecological Integrity in Canada’s National Parks: The False Promise of Law” (2010) 29 Windsor Rev Legal Soc Issues 89

[xi] Many authors have explained why these two evolutionary strands in environmental law, conservation and restoration – as further developed in the following paragraphs –, lose their relevance in the context of the current environmental crisis: see Holly Doremus, “Adapting to Climate Change with Law That Bends Without Breaking” (2010) 2 San Diego J. Climate & Energy L. 45; Robin Kundis Craig, Stationarity is Dead”-Long Live Transformation: Five Principles for Climate Change Adaptation Law, (2010)34 Harv. Envtl. L. Rev. 9, 33-35; J.B. Ruhl, “Climate Change Adaptation and the Structural Transformation of Environmental Law”, supra note 5 at 394 (“The stationarity premise and all on which it is based, however, are going to fall to pieces in the era of climate change.”); Paul Emond, “The Greening of Environmental Law” (1991) 36:3 McGill L.J. 742 provides a typological perspective on the earlier stages of environmental law’s evolution. Writing at the beginning of the 1990s, Emond noted that: “Not much has worked very well in the environmental protection field up to this point. Granted there have been some notable successes, but the general consensus seems to be that we are slipping further and further behind.” (p.759)

[xii] See James Brazill-Boast et al., “A large-scale application of project prioritization to threatened species investment by a government agencyPlos One (August 14, 2018) online: <//doi.org/10.1371/journal.pone.0201413>; Kerrie Wilson & Elizabeth Law, “Ethics of Conservation TriageFrontiers in Ecology and Evolution (September 27, 2016) online: <doi.org/10.3389/fevo.2016.00112>; Leah Gerber, “Conservation triage or injurious neglect in endangered species recoveryPNAS 133:13 (March 29, 2016) 3563, online: <doi.org/10.1073/pnas.1525085113>; Ralf Buckley, “Triage Approaches Send Adverse Political Signals for ConservationFrontiers in Ecology and Evolution (April 19 2016) online: <doi.org/10.3389/fevo.2016.00039> ; Michelle Nijhuis, “Conservationists Use Triage to Determine Which Species to Save and NotScientific American 307:2 (August 2012); Peter Christie, “Triage in the wild: Is it time to choose which species live and which die out?National Post (October 31, 2015) online: <nationalpost.com/news/canada/triage-in-the-wild-is-it-time-to-choose-which-species-live-and-which-die-out>; Ruby Buiza, “With more species at risk than resources to save them, conservationists face hard choicesCBC Radio (September 7, 2018) online: <www.cbc.ca/radio/quirks/with-more-species-at-risk-than-resources-to-save-them-conservationists-face-hard-choices-1.4813305>; US, Bill HR 717, Listing Reform Act, 115th Cong, 2018; Julia Page, “Efforts to save woodland caribou in northern Quebec too costly, says provinceCBC News (March 9, 2018) online: <www.cbc.ca/news/canada/montreal/efforts-to-save-woodland-caribou-in-northern-quebec-too-costly-says-province-1.4569479>; Sharon Bernstein, “How a math formula could decide fate of endangered U.S. speciesReuters (June 19 2017) online: https://www.reuters.com/article/us-endangered-species-triage/how-a-math-formula-could-decide-fate-of-endangered-u-s-species-idUSKBN19A1DK; Katherine Dorey & Tony Walker, “Limitations of threatened species lists in Canada: A federal and provincial perspective” (2018) 217 Biological Conservation 259, online: <doi.org/10.1016/j.biocon.2017.11.018>; Hugo Tremblay, “On the triage of species: which ones do we want extinct?” (4 March 2011), online (blog): <waterlawblog.blogspot.com/search/label/Species%20at%20risk>; John Charles Kunich, “The fallacy of deathbed conservation under the Endangered Species Act” (1994) 24 Environmental Law 501; Douglas Linder, “‘Are all species created equal?’ and other questions shaping wildlife law” (1988) 12 Harv. Envtl. L. Rev. 157.

[xiii] See UNFCCC, COP 24th sess, UN Doc FCCC/CP/2018/L.7 (2018); Mark G. Lawrence, “Evaluating climate geoengineering proposals in the context of the Paris Agreement temperature goalsNature Communications 9:3734 (September 13, 2018) online: <doi.org/10.1038/s41467-018-05938-3>; Chiara Armeni & Catherine Redgwell, “International legal and regulatory issues of climate geoengineering governance: rethinking the approach” (2015) Climate Geoengineering Governance Working Paper 21; Meinhard Doelle, “Climate Geoengineering and Dispute Settlement under UNCLOS and the UNFCCC: Stormy Seas Ahead?”, in Randall Abate, ed., Climate Change Impacts on Ocean and Coastal Law: US and International Perspectives, New York, Oxford University Press, 2015, 345.

[xiv] See “The Fragile Menagerie: Biodiversity Loss, Climate Change, and the Lawsupra note 7 p.349: “If complex adaptive ecosystems are to regain their capacity to deliver services that humans prize, human institutions such as the law must work to sustain surviving ecosystems and to transform degraded ecosystems”.

[xv] Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJL 327, 22 December 2000, pp. 1–73, link here.

[xvi] See NikolaosVoulvoulis, Karl Dominic Arpon & Theodoros Giakoumis, “The EU Water Framework Directive: From great expectations to problems with implementationScience of The Total Environment 575 (1 January 2017) 358, online: <doi.org/10.1016/j.scitotenv.2016.09.228> .

[xvii] See European Environment Agency, European waters: Assessment of status and pressures 2018, EEA Report No 7/2018, Luxembourg, Publications Office of the European Union, 2018, online: European Environment Agency <www.eea.europa.eu/publications/state-of-water>.

[xviii] See UK, Update to the river basin management plans in England, National Evidence and Data Report, Environment Agency, 2015.

[xix] See Martin Olszynski, “From ‘Badly Wrong’ to Worse: An Empirical Analysis of Canada’s New Approach to Fish Habitat Protection Laws” (2015) 28:1 Env. L & Prac. 1; House of Commons, Review of Changes Made in 2012 to The Fisheries At: Enhancing The Protection of Fish Habitat And The Management of Canadian Fisheries: Report of the Standing Committee on Fisheries and Oceans (February 2017) (Chair: Scott Simms); Canada, Commissioner of the Environment and Sustainable Development Reports, 2009 Spring Report of the Commissioner of the Environment and Sustainable Development, Ottawa, Office of The Auditor General of Canada, 2009; David Harper & Jason Quigley, “No Net Loss of Fish Habitat: A Review and Analysis of Habitat Compensation in CanadaEnvironmental Management 36:3 (2005) 343, online: <doi.org/10.1007/s00267-004-0114-x> and Jason Quigley & David Harper, “Effectiveness of Fish Habitat Compensation in Canada in Achieving No Net LossEnvironmental Management 37:3 (2006) 351, online: <doi.org/10.1007/s00267-004-0263-y>; Canada, Commissioner of the Environment and Sustainable Development Reports, 2019 Spring Reports of the Commissioner of the Environment and Sustainable Development to the Parliament of Canada: Report 2—Protecting Fish From Mining Effluent, Ottawa, Office of The Auditor General of Canada, 2019.

[xx] See Alberta Energy Regulator, “Liability Management” (2019) online: <www.aer.ca/providing-information/by-topic/liability-management>; Mike De Souza et al., “Alberta regulator privately estimates oilpatch’s financial liabilities are hundreds of billions more than what it told the publicCanada’s National Observer (1 November 2018), online: <www.nationalobserver.com/2018/11/01/news/alberta-regulator-privately-estimates-oilpatchs-financial-liabilities-are-hundreds>; Sharon Riley, “The story of Alberta’s $100-billion well liability problem. How did we get here?The Narwhal (2 November 2018) online: <thenarwhal.ca/the-story-of-albertas-100-billion-well-liability-problem-how-did-we-get-here/>; Lucija Muehlenbachs, “80,000 Inactive Oil Wells: A Blessing of A Curse?” (2017) University of Calgary: SPP Briefing Paper10:3, online: <doi.org/10.11575/sppp.v10i0.42617.g30498>; Hélène de Beer, “Alberta’s end-of-life oil and gas liabilities” (Master, University of Calgary, 2016) [unpublished]; Benjamin Dachis, Blake Shaffer & Vincent Thivierge, “All’s Well that Ends Well: Addressing End-of-Life Liabilities for Oil and Gas Wells” C.D. HOWE Institute Commentary 492 (September 2017); Ronald James Thiessen, “Sequencing Abandoned Wellsite Reclamations” (Doctorate, University of Calgary, 2018).

[xxi] See Jason MacLean, “Striking at the Root Problem of Canadian Environmental Law: Identifying and Escaping Regulatory Capture” (2016) 29 Journal of Environmental Law and Practice 111; For insights on the gap between the goals of environmental legislation and its actual implementation, see Nigel Bankes, Sharon Mascher & Martin Olszynski,“Can Environmental Laws Fulfill their Promises? Stories from Canada” (2014) 6 Sustainability 6024.

[xxii] See “An Unimaginative People: Instrument Choice in Canadian Environmental Law and Policy”, supra note 10.

[xxiii] See “What Ever Happened to Canadian Environmental Law?supra note 9 at 987: “The function of environmental law, therefore, remains limited to mitigating the worst effects of the dominant model of economic development rather than fundamentally challenging or transforming it. It is rare for a major project, especially one that promises many jobs and other economic benefits, to be vetoed in the name of environmental protection. As will be shown later, this perceived tension between environmental protection and economic growth has been particularly salient in Canada because of the continuing primacy of extractive industries in its economy.”

[xxiv] See House of Commons, Healthy Environment, Healthy Canadians, Healthy Economy: Strengthening The Canadian Environmental Protection Act, 1999: Report of the Standing Committee on Environment and Sustainable Development, June 2017 (Chair: Deborah Schulte) at 5; Canada, Canadian Environmental Protection Act, 1999 Issues & Possible Approaches, Discussion Paper (Environment and Climate Change Canada, May 2016); Canada, Commissioner of the Environment and Sustainable Development Reports, 2018 Fall Reports of the Commissioner of the Environment and Sustainable Development to the Parliament of Canada: Report 1—Toxic Substances, (Ottawa, Office of The Auditor General of Canada, 2018. A timeline of CEPA’s reviews and links to official reports can be found online: Canadian Environmental Protection Act review <https://www.canada.ca/en/environment-climate-change/services/canadian-environmental-protection-act-registry/review.html>

[xxv] See Lynda Collins & Lorne Sossin, “Approach to Constitutional Principles and Environmental Discretion in Canada” (2019) 52 UBC Law Review 293, at 295-305; Andrew Green, ‘‘An Enormous Systemic Problem”? Delegation, Responsibility and Federal Environmental Law” (2017) 28:2 J Envtl L & Prac 155; Jocelyn Stacey, “The Environmental Emergency and the Legality of Discretion in Environmental Law” (2015) 52:3 Osgoode Hall L.J. 995 at 997-999; Bruce Pardy, “Environmental Assessment and Three Ways Not to Do Environmental Law”, (2010) 21 J Envtl L & Prac 139; Unnatural law, supra note 9 at 231-232, 269; Nature’s trust supra no/te 9 at 7, 10, 13, 57-64, 68-81. Compounding the problem of discretion, XY & AB find that:

“whatever effect judicial capacity constraints has on courts’ deference to administrative and governmental decision-making, it varies across different areas of the law, with the courts tending to pay comparatively extreme deference to administrative and governmental decisions concerning the development of natural resources and environmental protection.” (p.?)

[xxvi] See Martin Patriquin, “In Quebec, a cement factory encased in hypocrisyMacleans (28 July, 2018) online : <www.macleans.ca/news/canada/in-quebec-a-government-supported-cement-factory-encased-in-hypocrisy/>; Bill n°37, An Act to confirm that the cement plant and maritime terminal projects in the territory of Municipalité de Port-Daniel‒Gascons are subject solely to the authorizations required under section 22 of the Environment Quality Act, 1st Sess, 41st Leg, Quebec, 2012 (assented to 3 June 2015), c 12; Hugo Tremblay, “Développement des ressources minérales: oscillations entre le free mining et le développement durable”, (2015) 20 Droit Montréal 17, at 19; David Boyd, Cleaner, greener, healthier: a prescription for stronger Canadian laws and policies, (Vancouver, UBC Press, 2015) at 202-203, refers to countless examples of the industry’s negative effect on environmental law and policy. See also Jason MacLean, Meinhard Doelle & Chris Tollefson, “The past, present and future of Canadian environmental law: a critical dialogue” (2016) 1:1 Lakehead Law Journal 79 at 95.

[xxvii] David Boyd, Unnatural law: rethinking Canadian environmental law and policy, (Vancouver, UBC Press, 2003) at 275-276. On the irreconcilable character of economic development and environmental protection, see Mary Christina Wood, Nature’s trust; Environmental law for a new ecological age, (New York, Cambridge University Press, 2014) at 6 (“If environmental law, no matter how seemingly complex or sophisticated, becomes too detached from Nature’s own laws, it will become irrelevant.”). According to David Boyd, Cleaner, greener, healthier: a prescription for stronger Canadian laws and policies, (Vancouver, UBC Press, 2015) at 200, “environmental law and policy fails to recognize the laws of nature (e.g., laws of thermodynamics) and the fact that the Earth is finite.” Quoting the Brundtland Report, Boyd adds that “human laws must be reformulated to keep human activities in harmony with the unchanging and universal laws of nature.” With respect to the laws of nature, Hugo Tremblay, “Sustaining development in a thermodynamic universe: Raging against the dying of the light”, (2016) 28:3 J Envtl L & Prac 333 at 351, suggests that stringent prohibitions to alter the environment would conform most closely to the laws of nature (“the legal framework placing the most constraints on development is also the framework that most fosters sustainability.”).

[xxviii] The implementation of an ecosystem-based management approach in law is recognised as so complex as to require adaptive management, which is an iterative, endlessly shifting process reliant on a continuous stream of scientific information and monitoring: J. B. Ruhl, “The Pardy-Ruhl Dialogue on Ecosystem Management, Part IV: Narrowing and Sharpening the Questions” (2007) 24 Pace Environmental Law Review at 28-29.

[xxix] See “What Ever Happened to Canadian Environmental Law?supra note 9 at 990-991; Mary Christina Wood, Nature’s trust; Environmental law for a new ecological age, (New York, Cambridge University Press, 2014) at 65, 67 (“The modern environmental bureaucracy generates mountains of studies, technical reports, environmental analysis, proposed rule-making, and decision documents that prove useful only for destroying nature.”); Jason Dion, “Explaining Output-Based Allocations (OBAs)” (24 May 2017), online (blog): Canada’s Ecofiscal Commission <ecofiscal.ca/2017/05/24/explaining-output-based-allocations-obas/>; Chris Ragan, “There’s probably more consensus on output-based pricing than you think” (29 March 2019), online (blog): Canada’s Ecofiscal Commission <ecofiscal.ca/2019/03/29/output-based-pricing-consensus/>.

[xxx] See Jorge Casado et al, “Screening of pesticides and veterinary drugs in small streams in the European Union by liquid chromatography high resolution mass spectrometryScience of The Total Environment 670 (20 June 2019) 1204, online: <doi.org/10.1016/j.scitotenv.2019.03.207>; Damian Carrington, “Microplastic pollution revealed ‘absolutely everywhere’ by new researchThe Guardian (7 March 2019), online: <www.theguardian.com/environment/2019/mar/07/microplastic-pollution-revealed-absolutely-everywhere-by-new-research>; Albert Koelmans et al, “Microplastics in freshwaters and drinking water: Critical review and assessment of data qualityScience of The Total Environment 155 (15 May 2019) 410, online: <doi.org/10.1016/j.watres.2019.02.054>; Stephanie Wright & Frank Kelly, “Plastic and Human Health: A Micro Issue?Environ. Sci. Technol. 51:12 (2017) 6634, online: <pubs.acs.org/doi/abs/10.1021/acs.est.7b00423>; Madeleine Chagnon et al, “Risks of large-scale use of systemic insecticides to ecosystem functioning and servicesEnvironmental Science and Pollution Research 22:1 (January 2015) 119, online: <doi.org/10.1007/s11356-014-3277-x> ; Simon-Delso et al, “Systemic insecticides (neonicotinoids and fipronil): trends, uses, mode of action and metabolitesEnvironmental Science and Pollution Research 22:1 (January 2015) 5, online: <doi.org/10.1007/s11356-014-3470-y>; A. C. Gore et al, “EDC-2: The Endocrine Society’s Second Scientific Statement on Endocrine-Disrupting ChemicalsEndocrine Reviews 36:6 (December 2015) E1, online: <www.ncbi.nlm.nih.gov/pmc/articles/PMC4702494/>.

[xxxi] Lynda Collins, “Tort, democracy and environmental governance: the case of non-enforcement” (2007) 15 Tort L Rev 107, refers to epidemic levels of non-enforcement due to lack of resources and overbroad discretion, leading to substantive harm to the environment and to the rule of law itself.

[xxxii] See “What Ever Happened to Canadian Environmental Law?supra note 9 at 990-991.

[xxxiii] See Rakhyun Kim & Klaus Bosselmann, “International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements” (2013) 2:2 Transnational Environmental Law 285; Hélène Mayrand, “Déconstruire et repenser les fondements du droit international de l’environnement” (2018) Revue québécoise de droit international 35.

[xxxiv] See Bill C-634, An Act to establish a Canadian Environmental Bill of Rights, 2nd Sess, 41st Parl, 2014 cl 9(3) (as introduced to the House of Commons 29 October 2014); David Boyd, “Elements of an Effective Environmental Bill of Rights” (2015) 27:3 Journal of Environmental Law and Practice 201; Mary Christina Wood, Nature’s trust; Environmental law for a new ecological age, (New York, Cambridge University Press, 2014); Paule Halley, ed., L’environnement, notre patrimoine commun et son État gardien, (Cowansville, Yvon Blais, 2012);Act to affirm the collective nature of water resources and to promote better governance of water and associated environments, CQLR c C-6.2, s 3; Melissa Devost, “Le patrimoine commun de la nation québécoise au service de l’indemnisation du préjudice environnemental” (2012) 71 R. du B. 43; Jason MacLean, Meinhard Doelle and Chris Tollefson, “The past, present and future of Canadian environmental law: a critical dialoguesupra note 26 at 103 (on making the precautionary principle justiciable); Simard v. Ville de Baie-Saint-Paul, 2019 QCCS 857.

[xxxv] See Lynda Collins & Lorne Sossin, “Approach to Constitutional Principles and Environmental Discretion in Canadasupra note 25.

[xxxvi] ENvironnement JEUnesse v Attorney General of Canada , Motion for authorization to institute a class action and obtain the status of representative, 26 November 2018, Unofficial English translation, online: Trudel Johnson Lespérance <http://tjl.quebec/wp-content/uploads/2018/11/2018-11-26-ENJEU-unoffiocial-English-translation-final.pdf>; Nathalie Chalifour & Jessica Earle, “Feeling the heat: Climate litigation under the Canadian Charter’s right to life, liberty, and security of the person” (2018) 42 Vermont Law Review 689.

[xxxvii] David Boyd, Rights of Nature, (Toronto, ECW Press, 2017); Alberta Civil Liberties Research Centre, “Rights of Nature”, online: ACLRC <http://www.aclrc.com/rights-of-nature>; Whanganui River Deed of Settlement Ruruku Whakatupua – Te Mana o Te Awa Tupua, 5 August 2014, online: New Zealand Government <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/>; Maria Banda,” Why should trees have legal rights? It’s second natureThe Globe And Mail (1 June 2018), online: <www.theglobeandmail.com/opinion/article-why-should-trees-have-legal-rights-its-second-nature/>; Abigail Hutchison, “The Whanganui River as a Legal Person” (2014) 39 Alternative L.J. 179; this is not a new idea, and its longstanding critique – for example P. S. Elder, “Legal Rights for Nature: The Wrong Answer to the Right(s) Question” (1984) 22:2 Osgoode Hall L.J. 285 – remains valid: standing can be broadened through a substantive right to the environment in order to reach similar results, and lack of political will to protect the environment remains the central issue.

[xxxviii] See Lynda Collins, “Tort, democracy and environmental governance: the case of non-enforcementsupra note 31; Jerry deMarco, Marcia Valiante & Marie-Ann Bowden, “Opening the door for common law environmental protection in Canada: the decision in British Columbia v. Canadian Forest Products Ltd.” (2005) 15 J Envtl L & Prac 233

[xxxix] Nathalie Chalifour, Heather McLeod-Kilmurray & Lynda Collins, “Climate change, human rights and private remedies” in Sébastien Duyck, Sébastien Jodoin & Alyssa Johl, eds, Routledge Handbook on Human Rights & Climate Governance, (London, Routledge, 2018) at 380, 381: “First, compared to statutory environmental law, civil suits more frequently produce a financially significant result and/or effective injunctive relief.[…] Second, tort law does not depend for its enforcement on the political priorities of any given government.” However, David Boyd, Cleaner, greener, healthier : a prescription for stronger Canadian laws and policies, (Vancouver, UBC Press, 2015) at 216, sounds a note of caution (“the judicial system’s ability to ensure accountability is undermined by several factors, including the courts’ historical bias towards private rights rather than the public interest, the absence of effective environmental rights, limited access to the courts in some jurisdictions (e.g. Alberta), the high cost of litigation, judicial deference towards government decision-makers, unfamiliarity with environmental cases, and precedents imposing low penalties for environmental offences.”). See also Lynda Collins, “Material contribution to risk and causation in toxic torts” (2011) 11 J Envtl L & Prac 105.

[xl] See Jason MacLean, Meinhard Doelle and Chris Tollefson, “The past, present and future of Canadian environmental law: a critical dialogue” supra note 26 at 101: “environmental law research needs to develop more clear goals for environmental law, and to achieve this, it has to rethink or at least significantly refine the meaning of sustainable development. […]In short, we need much more clearly articulated goals for environmental law.”

[xli] See Bruce Pardy, “In Search of the Holy Grail of Environmental Law: A Rule to Solve the Problem” (2005) 1:1 JSDLP – RDPDD  29 at 52: (“complexity and uncertainty lead to interminable and costly litigation. Simplicity and clarity lead to the prevention and efficient resolution of conflict.”); Bruce Pardy, “The Unbearable Licence of Being the Executive: A Response to Stacey’s Permanent Environmental Emergency” (2015) 52:3 Osgoode Hall L.J. 1029: “The solution to environmental issues that the rule of law demands is better abstraction in rules of general application”; Eric Biber, “Adaptive management and the future of environmental law” (2013) 46:4 Akron L. Rev. at 958: “where dynamism and complexity might be so high that learning is impossible, we might again be better off with relatively rigid, inflexible standards based on front-end analysis.” See also supra note 11 as well as Eric Biber & Josh Eagle, “When does flexibility work in environmental law” (2015) 42:4 Ecology Law Quarterly 787.

[xlii] See Nathalie Chalifour & Jason MacLean, “Canada shouldn’t wait for the courts to litigate climate action. Only collaborative policy-making will deliver the rapid and systemic changes we needPolicy Options (21 December 2018), online: <policyoptions.irpp.org/magazines/december-2018/courts-not-decide-climate-change-policy/>

This content has been updated on May 8 2019 at 16 h 00 min.