Elizabeth Brubaker

Last week, as most environmentalists bemoaned the federal government’s decision to streamline environmental assessments, one expert shed no tears. Bruce Pardy, professor of environmental law at Queen’s University and member of Ontario’s Environmental Review Tribunal, told CBC Radio that “environmental assessment is not a great way to protect the environment.”

Environmental assessment, Pardy explained, recognizes no rights and relies on no standards, creating uncertainty for all involved. In a process that respects no hard and fast rules about what impacts are acceptable, “context is everything.”

In the end, Pardy added, “the government … has almost complete discretion about whether the answer is going to be yes or no.” He elaborated: “The error, I think, is in equating the public’s right to speak with having a say. Those two things are different. Yes, the public gets an opportunity to speak. That doesn’t mean they have any control over the outcome. The outcome is controlled by the government. And the criteria in the statute [are] wide enough so that the government can express whatever values it wants.”

The result? “Environmental assessment has become an almost ritualistic blessing of projects – even those that will, in fact, cause environmental problems.” It is a “pretence” – an “empty shell of a process.”

The politicization of decision making is “not fair on people who value environmental quality. It’s not fair on companies to put them through this long and expensive waste of time.”

Governments, Pardy proposed, should be rule makers rather than problem solvers. They should replace the environmental assessment process with firm rules specifying what impacts are permitted. “Rules provide certainty both for people interested in environmental quality and for companies who want to do projects. That way, everybody knows what the story is.”

In the CBC interview, Pardy advocated statutory rules, such as laws protecting water quality. Elsewhere, he has championed still more effective rules: those protecting individuals’ property rights. In a 2007 talk, Pardy contrasted property rights – including the “rights to be free from incursions, damage and unreasonable interference from others” – with regulatory schemes that “authorize officials to make discretionary decisions about resource use and pollution based upon assessments of public utility.” Utilitarian regulation has facilitated activities that both interfere with property rights and harm the environment. Pardy described three trends proceeding in lock step: “decline in the status of property rights, growth in discretionary utilitarian government, and increasing ecosystem degradation.”

In a 2005 paper, Pardy likewise criticized much environmental regulation as politicized, discretionary, arbitrary, incoherent, unpredictable, and ineffective. He contrasted this with an ideal vision of the rule of law – “a system of governance based upon generally applicable, abstract rules and limited state discretion, in which government entities are subject to the same law as the citizenry.” The rule of law, he continued (quoting the Austrian economist F.A. Hayek), “means that government in all its activities is bound by rules fixed and announced before-hand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances.”

Pardy described the common law (the source of individual property rights) as having abstract rules fixed in advance: “In traditional common law systems, conflicts are decided by decision-makers (judges and juries) who are supposed to be disinterested and uninformed: they have nothing personally at stake in the case, and know nothing about it other than what they hear from witnesses in the courtroom. They are to decide the case by applying general rules to the facts. Those rules are to apply in the same way regardless of the status, wealth, or popularity of the parties.”

Today’s politicized regulation – including the environmental assessment process – is incompatible with the rule of law. It is neither just nor effective. To better protect the rights of citizens, and to better preserve our lands, waters, and air, federal and provincial governments should, when feasible, do away with environmental assessments, enforce clear environmental statutes, and strengthen common-law property rights.

Click here to listen to Bruce Pardy on CBC Radio’s The Current.