Unnatural Law: Rethinking Canadian Environmental Law and Policy
November 4, 2013
Review By Jeremy Rayner
FOR SEVERAL DECADES now, Canada has presented itself to the world as a country in the forefront of environmental stewardship and responsibility. The sheer size of our country, its relatively low population density, and the unsuitability of so much of the land for agriculture have combined to produce a popular image of pristine lakes and endless forests that can still be supported by adventurous photo -journalists and is sold at home and abroad as the official image of Canada. The reality, however, is rather different. In Unnatural haw, David Boyd joins his voice to a growing chorus of alarm about Canada’s “Potemkin village” approach to environmental law and policy. It is not necessary to press very far behind the glossy façade of official pronouncements to encounter a shocking record of failure and neglect that has seen Canadian environmental performance slip further and further behind the standards set by other wealthy countries in the world. And there is growing resentment of our hypocrisy in international environmental forums, as we continue to lecture everyone else on environmental responsibility while taking so little upon ourselves.
In the first and best part of his book, Boyd presents the evidence of our decline. He notes the findings of a recent University of Victoria study showing Canada ranking second to last (ahead only of the Americans) across a variety of environmental performance indicators compared with 28 other OECD countries. We waste water, pollute the soil and atmosphere, and guzzle nonrenewable energy with such profligacy that it’s a mercy there are only 30 million or so of us. He proceeds to analyze the problems in a series of chapters on water, air, land, and biodiversity that provide an exceptionally useful tour d’horizon of the state of contemporary environmental law and policy in Canada, rounded out with well-chosen case studies of particular industries and issues. These sections, which take up rather more than half the book, can be unreservedly recommended as a reliable and up-to-date introduction to the subject, supported by a solid bibliography of current sources. Boyd does not shirk the major problem of writing about Canadian environment policy – the. fact that so much of it is actually made by the provinces – and demonstrates an encyclopaedic knowledge of provincial policies and issues that is a corrective to the customary focus on the activities of the federal government.
The two remaining sections, which Boyd calls “diagnosis” and “prescription,” are rather less satisfactory. Boyd is an environmental lawyer by profession and the book is dedicated to a clutch of other lawyers, including the doyen of the BC environmental bar, Thomas Berger, who provides a characteristic foreword. In spite of dutifully repeating the awkward phrase “environmental law and policy” throughout, it’s clear that Boyd’s focus is on law rather than policy. His prescription amounts to a plea for more regulation expressed in clear, non-discretionary statutes to be enforced by a corps of legal activists with appropriate access to information and standing in the courts. They will be supported by sympathetic judges interpreting constitutionally entrenched environmental rights.
Legalism is certainly not the direction being taken in most of the countries that Boyd purports to admire and it sits uneasily with his interesting discussion of the non-regulatory approaches of countries like Sweden, which is singled put as a suitable comparison for Canada. There we learn that Swedish water use is reduced by full-cost pricing, air pollution by a “fee-bate” system, and greenhouse gas emissions by energy taxes – all market instruments rather than legal ones. Similarly, his discussion of the vexed question of how to reduce consumption in the face of our deeply entrenched beliefs about individual rights and lifestyle choices begins from the sensible premise of the National Roundtable on the Environment and the Economy that “it is much more likely that ten thousand small decisions, freely made each day, will sustain development than will the One Big Law flowing from government” (313). There follows an ail-too-short discussion of subsidies, perverse and virtuous incentives, and the relation of environmentally destructive behaviour to underlying issues of social justice, all of which merit much more serious and extended treatment than they receive here.
Of course there is a place for legal regulation in a sensible environmental policy. Market instruments, information, and education usually need to be supported by a framework of law that will punish non-compliance and will embody, rather than contradict, key principles like full-cost pricing and polluter pays. But, if we have learned anything from the last twenty years of policy failure, it is that electorates in wealthy democracies are unwilling to pay for the expensive apparatus of compliance and enforcement that reliance on regulation as a front-line environmental policy instrument requires. They are also increasingly willing and able to evade restrictions on what they see as their sovereign right to choose for themselves. In the end, Boyd’s prescription is a curiously old-fashioned one, running against the trend of the leaders in environmental policy in favour of the legalistic culture of that perennial laggard south of our border.