Why doesn't environmental law work in its current form?

This week I attended the People and the Planet conference, hosted by the Sierra Club of Canada and the Kingston Society of Conservation Biology at Queen?s University. Representatives from across the country were there to discuss a wide variety of environmental issues, and as a member of the Lake Ontario Keeper I was very interested in discussing the current state of environmental law and its track record protecting our environment. On Saturday morning I attended a very interesting workshop run by Bruce Pardy, an associate professor of law at Queen?s University, entitled Environmental Law: Why Doesn?t it Work?

Mr. Pardy demonstrated how in Canada we have plenty of laws that sound as though they protect our environment (such as the Ontario Environmental Bill of Rights and the Environmental Protection Act); however, in practice we rarely see the these acts enforced in our criminal courts. The workshop outlined two main reasons why environmental law needs to be reformed: first, environmental laws are not stated in the abstract, and second, enforcement is by and large carried out on a voluntary basis.

By abstraction, we mean that a law that covers a specific situation is stated in general terms. For example, ?thou shalt not kill? is a general rule that applies to all situations under the law. The specifics of how and why a killing took place are then discussed in a court, but all in the context that killing is illegal. One of the major problems with environmental laws in Canada is that they are not stated in terms like: ?do not dump toxic waste?, or ?do not dump sewage into a city?s supply of drinking water?. Law is about applying general rules to a specific set of effects, and once you take the general rules away then you take away the ability of the law to be enforced.

In the workshop we discussed some of the current wording in our environmental laws and why they sound great to read, but are very tough to enforce in the courts. For example, section 2 of the Ontario Environmental Assessment Act states that

?the purpose of this Act is the betterment of the people of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment?

Sounds great, but what do these terms mean in a legal sense? Is wise management building a development over a significant wetland as long as you plant some trees on the boulevard? Is protecting the people defined as .5 parts per million of X in the drinking water but not .6 parts per million?

By not having environmental laws stated in the abstract it makes the entire process very arbitrary and too much discretion and politics get introduced into the process. This brought Mr. Pardy to his second point, which was that change is needed to take the enforcement of environmental laws from a method of voluntary compliance to one which forces polluters to conform to legally determined standards. I was very pleased to hear Mr. Pardy speak on this topic, because it?s something that the Lake Ontario Keeper feels strongly about. Until it?s the independent investigators, and the independent courts, that are enforcing environmental laws we will continue to see intergovernmental agencies providing polluters with ?due diligence? exemptions so that they can continue to pollute.

To illustrate the direction that he would like to see environmental law move in Mr. Pardy took his chalk, drew a line on the table, and said, ?let?s call a spade a spade ? let?s draw a line in the sand and anything up to that line is fine, but once you cross that line it is not OK?.

I couldn't agree more.

-- Mark Mattson