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Can environmental law ever be saved from ruin?

The twin pursuits of environmental protection and economic development have made environmental law increasingly complex, and powerless. A shift to fundamental legal principles would change that.

Sinking plastics in the ocean

Environmental law is often compared to “the Law of the Horse,” a term used to describe an effort to bring together strands of law that have very little in common, aside from their subject matter. Thoroughbred regulations have little to do with those governing veterinary care for horses.

The comparison suggests that environmental law is a motley collection of rules lacking in coherence and any unifying principle. Environmental law emerged in the U.S. in the late 1960s, shaped by litigation strategies that relied heavily on judicial review of government agency decisions. The goal at the time was to halt undesired projects, but over time it led to a hodgepodge of formal rules without any common foundational values to support them. The question now is whether environmental law in its current state has a future, or if our reckoning with the Anthropocene will bring about its demise. A number of factors point in the latter 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. Biodiversity is destroyed at such a rate that we have entered the sixth mass extinction, a cataclysmic event on the geological scale. Climate change will soon reach thresholds beyond which the planet’s ecosystem might become fundamentally inhospitable to human life. The best environmental law can do in the most egregious cases is offer mild solutions — local habitat conservation, single-species protection, generic effluent concentrations, ad hoc licensing conditions, bans for some substances proven toxic beyond any doubt...

Put simply, environmental law in its current form is powerless and unsuited to the task.

Its failure to protect nature is evident in two ways. First, environmental law has turned the traditional approach to conservation on its head, in some cases by sanctioning environmental degradation.  An example of that is how endangered species legislation has led to de facto triage of species earmarked for extinction to save others. And nowhere is the corruption of the ideal of nature conservation more apparent than the promotion of geoengineering through the injection of aerosol pollutants in the atmosphere, to help us meet the goals of the Paris Agreement on Climate Change.

Second, environmental law’s main objective, increasingly, is to restore environmental quality by trying to reverse damage it failed to prevent in the first place. Under the Canadian Fisheries Act, the no-net-loss principle requiring compensation for the alteration or destruction of fish habitat can be implemented through the artificial creation of out-of-site habitat replacements. But the overall trend in fish habitat loss has continued unabated. In Alberta, the regime for the remediation and reclamation of oil and gas well sites faces a $100-billion shortfall preventing the cleanup of tens of thousands of abandoned and inactive wells. Reinforcing prohibitions to buck business-as-usual environmental degradation would have been more straightforward.

Ultimately the true culprit behind environmental law’s failings is a lack of political will. Governments in Canada tackle environmental challenges mostly with short-term, symbolic measures. But they are reluctant to intervene in ways that would address environmental degradation and ensure sustainability.

Complicating matters further is an attempt to shoehorn environmental protection into business-as-usual development, through mechanisms such as deregulation, procedural streamlining and market-based solutions. Moreover, the administrative discretion to authorize 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. When administrative discretion is not broad enough to accommodate political bias in favour of keystone projects, the legal constraints on development are often discarded. In Quebec, the Liberal government of Philippe Couillard adopted a special law exempting a cement factory from being subjected to an environmental impact assessment. It became the province’s largest GHG emitter.

The twin goals of pursuing environmental protection and economic development, coupled with a growing reliance on remediation and restoration, have made environmental law increasingly complex. Environmental law has long targeted low-hanging fruit, and it now faces the kind of intractable problems generated by the development-first approach — bee colony collapse syndrome, pervasive microplastic pollution, surface water eutrophication, widespread exposure to endocrine disruptors and carcinogens… Meanwhile, the State is in retreat, unwilling and unable to adequately finance, apply and enforce the increasingly burdensome and wide-ranging legal framework that could address these environmental issues. We rely on ever-more expensive solutions for ever-diminishing returns, until the costs of additional complexity finally outweigh expected benefits.

Confronted with this damning verdict of impotence, environmental law’s frontline appears to shift away from the sprawling regulatory model in favour of lodestone concepts. Litigants invoke Canadian Charter rights to force federal and provincial governments into action on climate change. Efforts are under way to substantiate fundamental principles such as public trust, common heritage and public custody. Ecological sustainability could evolve into an unwritten constitutional principle binding courts and governments. Others call for granting rights to elements of the natural environment like rivers, as some jurisdictions already do.

A shift to fundamental legal principles offers solutions to many current and emerging issues in environmental law. In a throwback to the discipline’s origins, it converges on potential legal recourses in a way that restores environmental law’s enforcement and binding character. It suggests an attempt at imbuing the discipline with guiding values. It also makes environmental law reliant on rules that are simpler, and more resilient than complex systems to abrupt changes or unforeseen crises and emergencies. Finally, it offers some promise that an absence of political drive for environmental protection will not go unanswered.

Perhaps most importantly, it will force political engagement at governmental level in the hope that serious, “collaborative policy making will deliver the rapid and systematic changes we need.”