What is the potential for law to adequately protect the environment when the complexity of ecosystems means that environmental problems are highly unpredictable and require rapid response? Are discretionary executive powers necessary to respond to ever-changing environmental issues? And does this in turn mean that effective environmental protection is outside the rule of law?
These are some of the questions motivating the work of Assistant Professor Jocelyn Stacey, who argues that we can gain important insight about environmental law by, paradoxically, thinking about environmental issues as constituting an ongoing state of emergency. Approaching environmental issues from this perspective reveals the untapped potential for the foundational concept of the rule of law to deliver environmental protection.
On the face of it, the concept of emergency may seem an unpromising point of departure for thinking about environmental law. Some theorists argue that emergencies cannot be governed by law because they are, by definition, unforeseeable and extreme threats. They therefore demand a swift and decisive response, which may not be permitted by pre-existing legislation. Emergencies are seen, therefore, to pose a particular challenge to the basic commitment to govern in accordance with the rule of law.
Yet, when viewed from the perspective of current ecological thinking, Professor Stacey stresses that environmental issues do indeed possess the relevant features of an emergency. Like other emergencies, we are unable to know in advance which environmental issues contain the chance of a catastrophe and how we ought to respond. Ecosystems are complex, adaptive systems, comprised of interdependent and dynamic rather than linear and casual relationships. And they contain tipping points, or the possibility of an extreme event, that will radically change the ecological system. In other words, the possibility of an environmental catastrophe is inherent to environmental problems and we will not always know in advance which problems contain the chance of catastrophe.
“This is why it is difficult to distinguish between benign policy choices and policy choices with catastrophic potential,” Professor Stacey explains. “One example is the mountain pine beetle epidemic – an unprecedented insect epidemic that we now know is the product of certain forest practices and climate change.”
The problematic uncertainty at the heart of environmental policy and regulation means that even our most forceful environmental laws will contain discretion, so that the government can respond to emerging environmental threats. At the same time, as Professor Stacey points out, discretion is not always used to respond swiftly to rapidly evolving environmental problems. In fact, it is all too often exercised in a way that delays meaningful action or undermines environmental protection outright. The challenge then is to understand how the rule of law can constrain the exercise of discretionary powers while also accounting for its inevitability given the possibility of an environmental catastrophe.
“For example, the Fisheries Minister might continue issuing fishing licenses (a discretionary power) long past when there are signs of a population collapse,” Professor Stacey notes. “The question, then, is what the rule of law requires in those cases. Are public officials free to exercise their discretion however they like? Or, even in the absence of specific statutory language, do they face certain rule-of-law constraints?”
Viewing environmental issues as emergencies opens up a rich body of work which argues that the common law is a repository of rule-of-law values. So even where the legislation confers discretion on the executive, the executive is always constrained by the common law. These requirements are the administrative law requirements of fairness and reasonableness. They provide the basis on which courts (or other reviewing institutions, such as tribunals) must intervene when the executive fails to make decisions that are fair and reasonable. Whether the executive acts in response to an extreme emergency, or through its everyday permitting and regulation-making capacity, it is subject to these rule-of-law constraints.
In her forthcoming article on “The Environmental Emergency and the Legality of Discretion in Environmental Law” (2016), Professor Stacey details how courts are reluctant to intervene in instances of environmental discretion, precisely because they are beholden to a conception of the rule of law that takes legislation as the sole source of legal norms. Courts therefore tend to be very hands-off when it comes to environmental decision-making, allowing decisions that undermine environmental protection.
To correct this, Professor Stacey argues that emergency perspective forces us to accept the necessity of discretionary power in environmental law while also pushing environmental law scholars to provide a theory of law that can account for this. She develops a conception of the rule of law in which common law values are understood to constrain every public official – a theory already broadly accepted in other areas of Canadian public law.
“Every environmental decision must reflect rule-of-law values,” Professor Stacey argues. “The challenge, in light of the courts’ historical unwillingness to intervene, is to elaborate what those values ought to look like in the environmental context and the best institutional design to ensure they can be realized.”
Professor Stacey’s work has important implications for some of the most pressing environmental issues facing Canada. Even in an adverse political climate, the common law provides legal resources that can resist attempts to undermine environmental protection – at least to a point. Take, for example, the controversial role of the National Energy Board in approving interprovincial pipelines. Changes to its governing legislation gave the Board a greater scope to approve controversial pipeline proposals. But, when we understand the common law as the source of a vital rule-of-law obligation on the Board to justify its decisions – that is, demonstrate its decisions are fair and reasonable – it cannot simply fall back on the ambiguous, discretionary language in the legislation as it fast-tracks pipeline approvals. Rather, it must comply with the rule of law for its decisions to have legal authority and, in this instance, the common law requirements are far more rigorous than the legislation, giving a basis on which courts are entitled to intervene.
Acknowledging that there is a diverse range of perspectives that scholars bring to environmental law, Professor Stacey notes that one of the strengths of the environmental emergency perspective is to show how a certain measure of environmental protection is intrinsic to the rule of law. As she puts it: “Our public officials – legislators, NEB members, judges – should not have to be environmentalists to affect environmental objectives. Rather, our foundational commitment to democratic governance under the rule of law supplies concrete and rigorous legal requirements that govern all environmental decisions.”
PROFESSOR JOCELYN STACEY
Jocelyn Stacey is an Assistant Professor at the Peter A. Allard School of Law, University of British Columbia. Her research focuses on Canadian environmental and administrative law and theories of the rule of law. She is completing her doctorate at the McGill Faculty of Law and has a LLM from Yale Law School. Prior to completing her graduate work, Jocelyn clerked for the Honorable Justice Marshall Rothstein at the Supreme Court of Canada.