Public Participation, Federalism and Environmental Law

Abstract

To the surprise of many Canadians, environmental regulation in Canada has been much less stringent than that in the U.S. since at least the 1970s. The principal reason given for this difference in stringency has been the process by which environmental law has been formulated. Canadian environmental law has typically been made in a very closed and informal fashion, providing industry with considerable power to influence policy but denying the public significant access to policy-makers. In the U.S. the system has been much more open and formal and provides greater opportunities for public participation. This rationale has lead to an increase in public participation rights in the environmental area in Canada. This paper examines the potential effect of increasing public participation rights. Such rights should result in greater information to and pressure on policy-makers. However, as such rights tend to lower costs of access for both the public and for regulated parties, it is not immediately clear how they will affect the relative stringency of environmental law. A factor which has greater impact on the ability of the public or public interest groups to act is the (increasingly) de-centralized nature of environmental regulation in Canada relative to the U.S. This tends to decrease the relative power of public interest groups to apply pressure on legislators by increasing their costs of action, reducing the ability of regulators to deal with extra-territorial effects and increasing the relative power of industry. In addition, while there has been an increase in public participation in Canada, it is not an unquestionable benefit in all cases. The public and regulators may have different views of environmental priorities. These differences may be due to either public attention to qualitative aspects of risk which are not apparent to regulators or to "rationality" problems of the public in perceiving relative risks. As a result, to the extent that increased public participation in Canada in the formulation of environmental law leads to regulation based on "irrationalities" by the public, such increase may actually lead to less optimal environmental regulation. A new institutional structure may be required to mitigate such concerns.