The democracy deficit in Canadian environmental policy making.

One of the chief criticisms of environmental and natural resource statutes in Canada is that they provide little, if any, policy direction to cabinets and individual Ministers. According to this critique, Canadian laws give government decision-makers too much discretion in not only establishing the content of environmental policy, but also in foregoing policy setting, and in choosing the tools to implement policy and deciding when to implement them.

Alberta's core environmental regulatory provisions, in the province's Environmental Protection and Enhancement Act (EPEA), area classic example of this made in Canada approach. Those provisions (in Part 2, Division 2 of the Act) prohibit the conduct of certain activities without an authorization by Alberta Environment. However, the Act itself does not prescribe the classes or categories of activities subject to this regulatory prohibition and authorization system, except to say that it applies to those activities "designated by regulations" issued by the Environment Minister. The Act then gives the Minister carte blanche authority to decide which sets of activities to designate under these regulations. In other words, the Alberta Legislature created an environmental protection system, but then left it completely up to the Environment Minister to decide the scope of activities to which the system should be applied.

The Legislature showed equal timidity in deciding how the system should be applied. EPEA provides no guidance, except a broad, feel good, kitchen sink-type statement of objectives at the Act's outset, on when Alberta Environment can issue or deny applications for authorizations for those activities that the Minister designates as subject to the authorization requirement.

The common justification for this hands-off legislative approach to policy making is that environmental harms are too complex, and arise from too many kinds of sources, to be defined and addressed in any detail through legislative policy making. According to this reasoning, legislation should simply empower expert agencies to address environmental harms, by giving them broad discretion to decide which harms to address, and when and how to address them.

The Supreme Court of Canada has used this justification at least twice. Once the Court used it as grounds for rejecting a claim that a provincial environmental statute was unconstitutionally vague. In the other case, the Court used it to reject a claim that a federal pollution control statute was so broad that it unconstitutionally infringed on provincial legislative jurisdiction (See Ontario v. Canadian Pacific Ltd. 1995 and R. v. Hydro-Quebec 1997). I have no qualms about the outcomes of these two cases. But, in reaching those outcomes, the Court incorrectly assumes that Canadian environmental legislation should, by practical necessity, forego providing concrete policy directions to environmental regulators.

US environmental laws, particularly federal laws, delegate considerable policy making discretion to administrative agencies in recognition of the complex nature of environmental problems. But those environmental laws still generally contain substantially more detailed guidance for US agencies' exercise of their discretion than comparable Canadian laws. One can debate the merits of these US legislative guides, but the guides show that the Canadian legislative model, of empowering but not guiding environmental regulators, is not an inherent or necessary result of the complexity of environmental problems.

The complexity justification is overstated in the additional sense that, while most environmental problems raise complex, multi-disciplinary issues, the choice of solutions is seldom based on purely technical analyses. Advocates at both ends of the protection/development spectrum frequently call for government decision-making based on good science. But most environmental decisions are ultimately based on non-technical, moral judgments.

Deciding appropriate levels of risk (e.g., [10.sup.-6] or [10.sup.-7]) for human exposure to carcinogenic pollutants is a good example of an environmental policy decision that appears scientifically complex, but has a core requiring moral or social, not scientific judgments. Thus, Alberta Environment is no better suited technically to determining acceptable health risks than the Alberta Legislature, and the Legislature is arguably better democratically suited to making that decision.

Provincial policy development regarding the Alberta oil industry's underground injection of increasingly scarce supplies of fresh water for "enhanced oil recovery," provides still another example. The acceptability of this practice no doubt raises complex issues relating, among other things, to the availability and cost of alternative methods of enhanced recovery, the effectiveness of various government incentives for the industry to use alternatives, the present and likely future amount of the province's surface and ground-water supplies, and the environmental effects of reducing those supplies for enhanced oil recovery. But, while Alberta's forthcoming policy will no doubt be informed by technical data and analyses on these issues, it will inevitably reflect a fundamental moral or social choice on the relative values of the oil produced from enhanced recovery and the likely irrevocable loss of the water used to produce it.

As with choices about acceptable health risks, the Legislature is just as technically capable as the Environment Minister in deciding the fundamental appropriateness of the water-for-oil trade off and again is arguably better democratically suited to making that choice.

Besides raising the apparent complexity of environmental problems, opponents of legislative policy making point to the sheer number of those problems, and the ad hoc nature in which many of them arise, as an additional reason for supporting a hands-off legislative approach to policy setting.

There is considerable merit to this argument, but it ignores the commonality of issues underlying many seemingly discrete environmental problems. Typically Canadian environmental legislation falls to address even these common issues at a meaningful or discernable level.

But even where the case can be made for legislative delegation of policy making functions to cabinets or individual ministers, legislatures should still be responsible for providing mechanisms to bold those executive policymakers publicly accountable for the timing, content, and implementation of their policy decisions. Canadian environmental statutes have varying degrees of accountability mechanisms, but as a whole, they generally fall miserably when compared to the US environmental laws in this respect.

Alberta regulations, like those discussed above designating the scope of activities that are subject to EPEA's authorization requirements, provide a good example of this lack of accountability. Under Alberta law, the cabinet (and individual ministers) may adopt regulations without first obtaining public comment on draft versions and the cabinet's exercise of discretion through regulations is effectively exempt from judicial oversight, given the lack of any meaningful legislative guides for courts to use in overseeing discretionary decisions. Regulations are also generally not required to be accompanied by any formal "decision document" explaining the cabinet's reasons for the regulations' content. Any public request for any documentary record of those reasons would likely face stiff government opposition on the basis of cabinet privilege in the province's restrictive access to information legislation. Under these circumstances, there is virtually no formal accountability for provincial regulation-making.

Provincial elections provide accountability, but citizens vote on how they feel parties and politicians perform generally on all issues, so additional mechanisms are necessary to hold cabinets and each minister accountable for individual regulatory decisions.

In short, there are few legislative tools for holding environmental policy makers accountable and only weak justifications for Canadian legislatures' typical reluctance to weigh in on environmental policy setting and implementation. These circumstances contribute to an unacceptable democracy-deficit in Canadian environmental policy making.

Michael M. Wenig is a Research Associate with the Canadian Institute of Resources Law and an Adjunct Professor with the Faculty of Law at the University of Calgary in Calgary, Alberta.