The Greening of Environmental Law

The Greening of Environmental Law

D. Paul Emond*

Environmental law in Canada has moved
through three distinct stages. The first, begin-
ning with the passage of the early environmen-
tal protection statutes, is described as symbolic
regulation. “Regulation,” because these laws
did purport to regulate activities that had dele-
terious effects on the natural environment, and
“symbolic” because the level and degree of
regulation was largely symbolic. By the mid
’70s and early ’80s these laws had given way
to two complementary developments. The first
involved the introduction of environmental
assessment (or audit) statutes and procedures;
the second involved a strengthening and
expanding of the traditional regulatory tools.
The clear thrust of this period was preventive
or how to anticipate and avoid potential envi-
ronmental problems before they arose. Neither
symbolic regulation nor preventive regulation
have been particularly successful in avoiding
or remedying pollution problems, however.
The approaches either proceed from a wrong
premise about the nature of the problem (mar-
ket or technological failure) or assume that the
solution lies in a process that is highly adver-
sarial and hence time-consuming, expensive
and unlikely to generate creative solutions to
difficult problems. Growing recognition of
these deficiencies has led to a third, greener
stage of environmental regulation: co-oper-
ative problem-solving. The premise behind
this approach is that all of society shares the
problem of environmental degradation and
hence all of society must work together to
solve the problem. This new and emerging
stage of “regulation” is not without its prob-
lems, but it clearly offers the promise of har-
nessing the creative energies of all sectors of
society to build co-operative solutions to envi-
ronmental problems.

* Osgoode Hall Law School, York University.

McGill Law Journal 1991
Revue de droit de McGill

Au Canada, le droit de l’environnement a 6vo-
lu6 en trois dtapes distinctes. L’adoption des
premieres lois sur ]a protection de l’environne-
ment marqua le d6but de la premiere dtape, qui
fut une p6riode de rdglementation symbolique.
Les lois adoptdes durant cette premiere phase
visaient h rdglementer des activit6s ayant une
influence nuisible sur l’environnement mais
leur contenu rdglementaire dtait, en grande
partie, minime et donc << symbolique. o Dis le milieu des anndes '70 et le ddbut des anndes '80, ces lois ont cdd6 leur place h deux ddve- loppements compl6mentaires. Le premier entraina l'introduction de procddures et de lois qui visaient I4 assurer l'exdcution d'6tudes d'impact environnemental; le deuxi~me se manifesta par un renforcement et un 6largisse- ment des outils rdglementaires traditionnels. La r6glementation environnementale durant cette pdriode a mis l'accent sur ]a prdvention: elle tentait d'anticiper et d'6viter les pro- blames environnementaux avant qu'ils ne sur- viennent. Toutefois, ni la r6glementation sym- bolique, ni ]a rdglementation prdventive a vraiment r6ussi h 6viter ou rdmddier aux pro- bl~mes de pollution. Ces approches sont fon- d6es sur de fausses pr6misses quant I ]a nature du probl~me (imperfection du march6 ou lacune technologique) ou prdsument qu'un processus extr~mement conflictuel, qui est long, cher et peu crdatif, produira une solution aux probl~mes environnementaux. Une plus grande reconnaissance de ces lacunes a mend Atla troisi~me 6tape de ]a rdglementation cana- dienne de l'environnement. Celle-ci est carac- t6risde par une approche plus << verte >> et plus
coopdrative au r~glement des probl~mes envi-
ronnementaux. Cette approche est fond6e sur
]a prdmisse que tous les membres de la socidt6
font face A la d6gradation environnementale et
donc que tous doivent travailler ensemble pour
rdsoudre ce probl~me. Cette nouvelle 6tape,
qui est encore aujourd’hui en voie de ddvelop-
pement, pr6sente elle aussi des problmes,
mais elle offre ]a possibilit6 que tous les
groupes de ]a soci6t6 vont se servir de leur
6nergie et cr6ativit6 pour formuler des solu-
tions coopdratives
de
l’environnement.

aux problmes

1991]

GREENING OF ENVIRONMENTAL LAW

Synopsis

Introduction
I.

Stage One: Symbolic Regulation
A. Definitions of the Problem
B. Process
C. The Lawyer’s Role
D. Failures of Symbolic Regulation
Stage Two: Preventive Regulation
A. Definitions of the Problem
B. Process
C. The Lawyer’s Role
D. Failures of Preventive Regulation

II.

M. Stage Three: Co-operative Problem-Solving

A. Definitions of the Problem
B. Process
C. The Lawyer’s Role
D. Problems and Prospects for Co-operative Problem-Solving

Conclusion

Introduction

***

Environmental law has changed dramatically over the last twenty years
since modem environmental protection statutes were first enacted in Canada.
While the word “greening” is perhaps somewhat over-used, it does, in my view,
describe the stages through which environmental law has “progressed” over this
period, and the levels of consciousness or frustration through which environ-
mental counsel have moved. This paper has two objectives. The first is to orga-
nize the development of environmental law into three stages of consciousness.
The labels that best describe each stage are: symbolic regulation; preventive
regulation; and mutual or co-operative problem-solving. The second objective
is to focus on the third stage, examine the ramifications of a more co-operative
approach to solving environmental problems and speculate about the implica-
tions of this approach for environmental lawyers.

REVUE DE DROIT DE McGILL

[Vol. 36

While there are a variety of ways in which one might trace evolving per-
ceptions of pollution and legal responses to those changing perceptions, I
believe that both fit nicely into the three distinct stages noted above. Each stage
is characterized by a unique perception or definition of the problem and that in
turn has prompted a particular response. Furthermore, each response has
encouraged a unique form of participation from the principal actors –
the reg-
ulatory departments, the corporations and the public interest groups. This paper
focuses on the representatives of each actor, the environmental lawyers, and
their roles in the environmental protection process. The stages are not mutually
exclusive. All three overlap as one set of perceptions and definitions fades into
another. Not all jurisdictions have adopted similar approaches to solving envi-
ronmental problems, although I believe that all are moving slowly or will be
forced to move towards the third, “greener,” more enlightened and more effec-
tive approach to the issues of pollution and environmental degradation.

I. Stage One: Symbolic Regulation’

The focus at this point in the regulatory cycle is on the obvious –

smoke-
stacks spewing black smoke into the sky, or outfall pipes discharging fibrous
sludge into lakes and rivers. Without trying to belittle these early regulatory
efforts, this form of regulation follows a predictable pattern. First, the regulation
usually responds to either an environmental “catastrophe” such as an Exxon
Valdez’ or to recent revelations about consumption practices and impending
environmental doom. The Club of Rome3 painted an especially vivid picture in
1972 of the environmental nightmare that lay ahead unless governments inter-
vened to curb growth and promote conservation. Notwithstanding the rhetorical
outrage of the public and crusading legislators, the regulatory legislation that
followed was flawed. It invariably vested enormous discretion in the regulator
and thus laid the foundation for a process in which the enthusiasm and zeal of

1I label this stage “symbolic” because although the legislation purports to prohibit pollution, it
does much to sanction and legitimize it. In this way an apprehensive public receives symbolic reas-
surance that pollution is under control while the regulated “polluters” receive government approval
for their activities.

2The Exxon Valdez is the tanker from which more than 10 million litres of black, thick north
Slope crude oil spilled into Prince William Sound, Alaska. The oil spill occurred on March 24,
1989 and is the worst oil spill in American history. Exxon Valdez has become synonymous with
major maritime oil pollution and is representative of the environmental devastation that can be
caused by a simple navigational error.
3The Club of Rome is the name given to a group of business people, officials and academics
who met in Rome in the late 1960s to consider the future implications of a course of world action
that seemed to threaten the world environment. The group’s report, D.H. Meadow, et al., Limits
to Growth: A Report for the Club of Rome’s Project on the Predicament of Mankind (New York:
Universe Books, 1972) and its successor, M.D. Mesarovic & E. Pestel, Mankind at the Turning
Point: the Second Report to the Club of Rome (New York: Dutton, 1974) generated great interest
from the business and academic community.

1991]

GREENING OF ENVIRONMENTAL LAW

the optimistic regulator could be converted into the comfortable working rela-
tionship of the cynical environmental manager. Dependent on the regulated for
information and legitimacy, both the regulator and the regulated had no real
option other than to strike a symbiotic balance in which each contributed to the
political well being of the other.

A. Definitions of the Problem

How a society responds to a problem depends very much on the way in
which it defines it. During the first stages of environmental regulation the prob-
lem is sometimes described in terms of market failure, sometimes technological
failure and sometimes both. The story that best describes pollution as a market
failure is told by Garrett Hardin’s “The Tragedy of the Commons.”4 Pollution,
according to Hardin, results from the over-utilization of a finite and “common”
or “public” resource such as air, water, or in some cases, land. According to
Hardin, the problem is not pollution per se –
indeed, some pollution is to be
expected. The problem is that the pollution generated by individuals pursuing
their own self-interest in an unregulated market economy always exceeds the
carrying or assimilative capacity of the receiving environment. This is due to the
fact that there are no countervailing market forces that would limit the level of
pollution generated to an “optimal” or “efficient” level.’ The market is like a
cancer. It facilitates growth and the production of pollution until the growth
chokes the “common” resource to death.

Hardin explains this phenomenon in terms of the market incentives and
disincentives facing each individual generator of pollution. Each unit of pollu-
tion creates both costs and benefits. The costs relate principally to the environ-
mental degradation of common environmental resources which are shared by all
members of society, or at least by all members of the community into which the
pollution is discharged. The benefits of pollution, on the other hand, derive from
the reduced production and pollution control costs that flow from untreated
waste discharges. These are enjoyed primarily by those associated with the pro-
duction process –
the owners of the process, perhaps the consumers of the
product in the form of lower prices, and possibly also the employees in the form
of higher wages. The result of this lack of symmetry between environmental
benefits and pollution control costs is predictable. Because the “cost” of the pol-
lution is bome more or less equally by all members of the community6 and
because the “benefits” of lax pollution control practices are concentrated in the
hands of the polluter, a rational, profit maximizing producer will always choose

1(1968) 162 Science 1243.
5″Efficiency” is generally understood to mean the point at which the marginal cost of pollution

control equals the marginal benefit of a cleaner environment.

61 say “more or less” because those who live upwind and/or upstream of the source may tem-

porarily avoid the grossest forms of pollution.

McGILL LAW JOURNAL

[Vol. 36

to pollute as much as possible. Only government intervention, according to Har-
din, will break the logic of doing that which imposes minimal, because shared,
costs on the environment and substantial, because not shared, benefits on the
actor.

The story that describes pollution as a technological problem is more com-
plicated. Barry Commoner tackled the question of the relative contribution of
technology to increased levels of pollution in his classic work, The Closing Cir-
cle: Confronting the Environmental Crisis.7 He concluded that while population
and affluence clearly accounted for some of the increase in pollution, it was
almost trivial compared to that brought about by new technologies. He wrote:

the kinds of goods produced to meet these [population] needs have changed dras-
tically. New production technologies have displaced old ones. Soap powder has
been displaced by synthetic detergents; natural fibres (cotton and wool) have been
displaced by synthetic ones; steel and lumber have been displaced by aluminum,
plastics and concrete; … On the farm, while per capita production has remained
about constant, the amount of harvested acreage has decreased; in effect, fertilizer
has displaced land. Older methods of insect control have been displaced by syn-
thetic insecticides, such as DDT, and for controlling weeds the cultivator has been
displaced by the herbicide spray … In each of these cases, what has changed dras-
tically is the technology of production rather than over-all output of the economic
good.8

The problem, according to Commoner, is not the quantity of waste generated,
although clearly “too much” is undesirable, but rather the quality of waste gen-
erated. Increasingly, the natural is replaced by the synthetic, labour is replaced
by technology, and finally, the relatively benign replaced by the persistently
toxic.

Each story or definition of the pollution problem evokes its own response
and its own solution. When pollution is described as market failure, it generates
a call for government intervention and regulatory action to correct the defi-
ciency or failure. Such intervention is usually cloaked in such principles as “the
polluter pays” or the need to “internalize all the costs of production.” Whatever
the principle, the public response is more or less the same –
a relatively sophis-
ticated regulatory regime designed to correct the failure by specifying appropri-
ate or optimal discharge levels. The “optimal” level is “found” by engaging in
the highly speculative and theoretical task of determining the level of pollution
that would be discharged if the polluter was required to pay all the environmen-
tal costs of the pollution. I say “speculative” because it is not clear what the
costs to the environment really are. Many are long-term, difficult to predict and
impossible to quantify. Even short-term quantifiable costs are bound to provoke

7London: Jonathan Cape, 1972.
81bid. at 144.

1991]

GREENING OF ENVIRONMENTAL LAW

lively debate, if only because it would be both inefficient and “irrational” not
to pollute up to the assimilative capacity of the environment.

When pollution is described as a technological problem, legislators’ atten-
tion turns from correcting market failure to finding appropriate technological
fixes. Here the focus is on prescribing the right technology. This is sometimes
described as the best available technology (B.A.T.), although it is more often
described as the best practicable technology (B.P.T.).9 The solution is technical
or scientific. Assimilative capacity is a relevant concept, but it no longer dom-
inates. The regulatory legislation is highly discretionary. Environmental quality
is generally cast in terms of “objectives,” rather than legally enforceable stand-
ards. After all, you cannot ask someone to do more than is technologically pos-
sible. Nor can you necessarily guarantee that a particular technology will
achieve a predetermined result. The focus is on prescribing the appropriate tech-
nological fix, rather than on achieving a particular result.

Whether a problem is defined in economic or technical terms is, of course,
important for purposes of selecting a solution. But the specific description of the
problem has a dramatic impact on the “solution.” Provincial efforts to find a
solution to toxic waste disposal problems provide a classic example of this
point. For most jurisdictions, the problem is defined in terms of siting, design-
ing, building and operating a state of the art disposal facility. When the problem
a Swan Hills”0 in
is described in these terms, the solution is predictable –
Alberta, or an Ontario Waste Management Corporation (O.W.M.C.) facility at
Smithville.” Both facilities offer the best “proven” toxic waste disposal technol-
ogy available. Both facilities are “adequately” sited from a hydrogeological and
land use planning perspective. Both assume some market failure or technolog-
ical shortcoming in the private sector. In other words, both assume and thus per-
petuate the continued existence of the problem. Neither approach, however,
attacks what I would describe as the root cause of the problem, namely, a pro-
pensity to focus on treating undesirable outputs rather than reorienting society’s
focus on inputs and production processes.

9An even better expression might be the “least worst technology.”
10Swan Hills is a small Alberta community, 125 miles northwest of the City of Edmonton. In
the early 1980s, the community volunteered to host a hazardous waste management facility and
was subsequently selected by the Alberta government as the site for the facility. The Swan Hills
siting exercise is described by A. Armour, “Facility Siting: A No Win Option, Pt. II” (1987) 3:1
C.E.M.N. 1.

ISmithville is a small fanning community in southwestern Ontario and has been identified by
the Crown corporation as its preferred site for the proposed facility. The proposed site, facility and
other aspects of the facility, including whether the facility is needed, are now the subject of a hear-
ing before the joint board, a body established under the Consolidated Hearings Act, O.R. 1981,
c. 20, to hear matters that relate to land use planning, environmental assessment and expropriation.
The Board is comprised of members from the Environmental Assessment Board and the Ontario
Municipal Board.

REVUE DE DROIT DE McGILL

[Vol. 36

Having committed enormous resources to site and build such a facility, a
strong economic and technological incentive develops to structure regulatory
policy in such a way that waste is actually created, transported, treated and then
disposed of. Completely missing from the analysis –
both in terms of the way
in which the problem is defined and the way in which potential solutions are
canvassed –
is any thought that the issues might be defined in terms of how
to avoid the creation of toxic substances in the first place, or how to recover and
reuse the constituent parts of these substances. Even the less radical alternative
of combining a reuse and recycling policy with an upgrade or retrofit of an
existing toxic waste disposal facility is not examined. By assuming steady
growth in the creation of toxic substances and recognizing the difficulty of sit-
ing major new toxic waste facilities, the solution is obvious –
a state of the art,
technically sophisticated, centrally located disposal facility. And, of course,
once a community has invested heavily in such a solution, the problem is des-
tined to continue.

B. Process

Because law is generally regarded as a process for regulating conduct, it
will come as no surprise that correlations extend between perceptions of prob-
lems, definitions of problems, solutions to problems and legal mechanisms or
processes for putting those solutions into effect. Thus, if a solution is character-
ized as regulating discharges of contaminants so as to achieve an economically
optimal or acceptable level of pollution, or the installation of suitable technol-
ogy to achieve an acceptable result, the legal role is to direct, control and pre-
scribe individual activity to that point. This will likely be achieved via permits,
licenses and orders, and the regulatory functions enforced through administra-
tive and quasi-judicial sanctions.

The pollution control process is, in my opinion, made up of three quite dis-
tinct parts. The first involves defining “optimal” levels of pollution (and hence
“optimal” levels of environmental protection). The second attempts to achieve
an “optimal” result through specific action. The third part of the process is con-
cerned with enforcing the regulatory actions taken. Dividing the pollution con-
trol process into its theoretical parts enables one to identify a policy making
part, a policy implementation part and finally a policy enforcement part. Else-
where I have argued that some processes are better designed to carry out some
tasks than other processes and that the failure of environmental regulations is
largely explained in terms of the failure to use a process appropriate for the task
at hand. 2 It is now possible to summarize this thesis and suggest that the early

12D.p. Emond, “Alternative Dispute Resolution: An Overview” in D.P. Emond, ed., Commercial

Dispute Resolution (Toronto: Canada Law Book, 1989) 1.

1991]

GREENING OF ENVIRONMENTAL LAW

failure of environmental regulation stems from two primary factors: the limited
way in which the problem was defined and “process misfit.”

There were other problems as well. Given the uncertainty and lack of
knowledge about pollution, it was inevitable that this early legislation would
treat pollution control as a “bargaining process” with negotiations usually initi-
ated by the regulatory department with the person responsible for the pollution.
Neither the department nor the polluter was able or prepared to implement a
credible solution on its own. The regulatory agency lacked the staff and the
expertise to fully understand the science behind the problem, let alone the solu-
tion. The polluter, on the other hand, lacked both the economic incentive to ini-
tiate solutions or the public confidence to put a solution into effect. A symbiotic
relationship developed between regulator and polluter. The regulators needed,
and hence became reliant upon, the industry’s knowledge of the problem; indus-
try needed the credibility of an apparently vigorous regulatory regime. Under
this symbiotic relationship, there was no room for the potentially disruptive par-
ticipation from either the general public or affected citizens. The result is sym-
bolic regulation.

C. The Lawyer’s Role

What has been the role of lawyers during this first stage of environmental
regulation? Regulatory counsel have been almost powerless. Legislation cast in
general objectives or guidelines is largely unenforceable, at least using tradi-
tional legal sanctions. Furthermore, because tough prosecutorial action would
clearly threaten the “good working relationship” that was continually emerging
between the regulator and the regulated, it was discouraged. Once a good
“working relationship” was established, the likelihood of successful prosecution
was seriously undermined by the prospect of the court finding that a prosecu-
tion, in such circumstances, would amount to an abuse of the legal process. 3
The result was that very early in the process, regulatory counsel turned to
the regulated industry for technical information, estimates of environmental
damage, and of course, advice on what was “realistic” as a goal. Assistance was
sought and received behind closed doors. Some tough bargaining clearly took
place, but most was designed to reconcile the competing objectives of environ-
mental protection and financial feasibility. Accommodation with industry usu-
ally meant that environmental objectives were sacrificed on the altar of political

13Abitibi Paper v. R. (1979), 24 O.R. (2d) 742, 99 D.L.R. (3d) 333 (C.A.). The Abitibi case
related to a situation in which the company and the Ontario Ministry of the Environment had exten-
sive discussions with regard to the terms of a proposed Ministry-issued control order. Before the
discussions resulted in a formal order, the Ministry prosecuted and the court subsequently held that
the prosecution was an abuse of process. The case raises the nice question of the extent to which
government industry negotiation will subsequently jeopardize the ability of government to use its
prosecutorial powers to enforce the provisions of a statute.

McGILL LAW JOURNAL

[Vol. 36

and regulatory expediency. Talk may have been tough, but actions were not. The
few prosecutions that did take place were usually responsive to sustained public
pressure, half-heartedly pursued, and often targeted on the weaker, less politi-
cally attuned members of the production sector.

Corporate counsel practised two quite different strategies during this early
stage of environmental law. The first has been to “deny, resist and defend” –
deny the problem, resist regulation and then vigorously defend prosecutions
given the inherent uncertainty of the pollution problem and the ambiguity of
most regulatory standards. This strategy has been surprisingly successful, at
least from the client’s point of view. By moving regulation into the judicial
forum, corporate counsel is also able to exploit the law’s preference for individ-
ual rights (usually of the polluter, but sometimes of those dependent on the
accused, such as employees) over community rights. Again, judicial safeguards
relating to the onus and burden of proof, 4 standing, 5 and the recent develop-
ment of the due diligence defence 6 have all helped ensure that polluters
received the benefit of the doubt.

A second strategy of corporate counsel has been to adopt a more
co-operative approach and to negotiate with the regulators. The essence of this
approach has been to concede that there is a problem and that some regulation
is inevitable and perhaps even preferable. After all, compliance with regulatory
standards generally immunizes one from prosecution. Once a problem is admit-
ted, corporate counsel’s role shifts first to defining the parameters of the prob-
lem and then to mapping out the components of a potential solution. If the prob-
lem is characterized in technical or scientific terms, the “solution” clearly lies
in the hands of the experts –
generally a group in the employ of the company
or more accurately “the industry.” Furthermore, technical solutions are invaria-
bly tempered not only by what is practical or feasible, but also by what is fair.
Mr. Justice Bergan’s often quoted phrase captures both concepts extremely well:
“[solution to] air pollution will depend on technical research in great depth; on
a carefully balanced consideration of the economic impact of close regulation;
and of the actual effect on public health.”‘7 Justice Bergan continued:

techniques to eliminate dust and other annoying by-products of cement making are
unlikely to be developed by any research the defendant can undertake within any
short period … [The rate of the research is beyond control of defendant. If… the
whole industry has not found a technical solution a court would be hard put to

of Standing (Toronto: Ministry of the Attorney General, 1989).

“See, e.g., Palmer v. N.S.F.L (1984), 2 D.L.R. (4th) 397, 12 C.E.L.R. 157 (N.S.S.C.TD.).
15For a discussion of the present law, see, Ontario Law Reform Commission, Report on the Laiv
16See R. v. Ellis Don (1990), [1991] 1 O.R. (3d) 193 (C.A.), Galligan, J.A.
17Boomer v. Atlantic Cement 257 N.E. 2d 870 at 871, 26 N.Y. 2d 219, 309 N.Y. 2d 312 (Ct. App.

1970).

1991]

GREENING OF ENVIRONMENTAL LAW

close down this one cement plant if due regard be given to equitable principles
(emphasis added).’ 8

Regulators are persuaded by the “logic” of the cost-benefit analysis, appeals to
“fairness,” concern about the economic impact of “close regulation” and the
persistent claim that there is no hard “proof’ of environmental damage. Courts
have merely served to reinforce these tendencies.

If the problem is characterized as economic or market failure, corporate
counsel are able to set the regulatory agenda by suggesting that regulatory pol-
icy should reflect “optimal levels” of pollution. Optimal is usually defined by
adherents of this approach as the point at which the amount of money spent on
pollution control (marginal cost or M.C.) equals the benefit received by the
environment (marginal benefit or M.B.). Corporate counsel’s contribution to the
process has been to characterize their client’s costs as high and the benefits of
increased pollution control as low. The result is exaggerated cost figures, and of
course inflated claims about lost jobs and business opportunities as a result of
these expenses, and trivial estimates of the environmental benefits of more pol-
lution control. This in turn does much to undermine the political and hence
administrative resolve to get tough on the problem.

Public interest counsel have been squeezed out of the process. As repre-
sentative of both a broader, environmental protection concern and “affected”‘ 9
citizens, they have not had a chair at the negotiating table. Attempts to force
their way to the table through the courts have failed. What value is there, the
courts have asked rhetorically, in public interest participation in the highly tech-
nical exercise of negotiating appropriate abatement technology, particularly
when the public interest is well represented by government regulators? When
public interest counsel have succeeded in winning a seat at the table,2 their con-
tribution has been modest at best. The problem has been defined by others, the
agenda has been set by others, and the information and analysis has been con-
trolled by others. Attempts to play a vigorous enforcement role by way of pri-
vate prosecutions in those jurisdictions where the right has not been fettered by
legislation have also been largely unsuccessful. The costs of such actions are
high and, although some legislation rewards the private prosecutor with a per-

‘lbid. at 373.
19″Affected” in the sense that regulation sanctions and legalizes approved pollution, even though

the pollution adversely affects the environment and its residents.

201n fact, there tends to be two “tables” – one where the real negotiation takes place and another
where public input is solicited. Recently, for example, regulatory departments, notably the Ontario
Ministry of the Environment, have formulated guidelines designed to encourage public involve-
ment in the regulatory process. While the guidelines are designed to solicit input, they do not give
“the public” a seat at the table where negotiations over the terms of an order or approval take place.
See, e.g., Ontario, Ministry of the Environment, Public Participation in Environmental Standard
Setting (Policy manual no. 16-00-01); Ontario, Ministry of the Environment, Public Consultation
(Policy manual no. 16-09-01) (February 16, 1989).

REVUE DE DROIT DE McGILL

[Vol. 36

centage of the fine levied, the financial incentives are far too modest to make
this course of action attractive to all but the most altruistic or principled pros-
ecutor. Finally, courts have done much to discourage the “officious intermed-
dler” by both questioning the private prosecutors standing and on one occasion
awarding costs against a successful private prosecutor.2

Furthermore, public attempts to participate in the process by way of civil
suits have been equally frustrating. Private litigation tends to be too costly, too
risky and generally comes too late in the decision-making process to provide
anything other than relatively modest, after the fact damages. When private
plaintiffs have successfully overcome restrictive standing and class actions, the
results have been disjointed and episodic.

Few public interest organizations have accepted such a limited role.
Instead of legitimizing and giving credibility by participating in a regulatory
and enforcement process so heavily stacked against their client’s interests, they
have turned to law reform. In this arena, public interest counsel have enjoyed
some success, although their success rests on the premise of a “rights” oriented
process and the appropriateness of judicial dispute resolution. Public interest
advocates, therefore, have attempted to redefine and extend legal rights to nat-
ural and inanimate objects, to overcome standing rules and to vest more
decision-making authority in the courts. For example, environmentalists in
Alberta and Ontario have been responsible for successive opposition parties and
private members introducing bills that would create an “Environmental Bill of
Rights”‘ or an “Environmental Magna Carta.”‘

Secondly, environmentalists have lobbied governments to “get serious”
about setting enforceable standards, expanding liability, and dramatically
increasing penalties for those who breach standards. Not only has the concept
of enacting an “Environmental Bill of Rights” that would expand the court’s
power to set standards and resolve disputes caught on in the Northwest Territo-
ries 4 and Ontario,’ but many of the other demands of environmentalists have
also been accepted and incorporated into recent legislative amendments.26

2 1R. v. Cyanamid Can. (1981), 11 C.E.L.R. 31 (Ont. Prov. Ct). For a detailed discussion of pri-
vate prosecutions see L.F. Duncan, Enforcing Environmental Law: A Guide to Private Prosecution
(Alberta: Alberta Law Foundation, 1990).

22Bill 222, The Environmental Bill of Rights, Ist Sess., 19th Leg. Alta., 1979.
23Bill 185, The Ontario Environmental Rights Act, 3rd Sess., 31 Leg. Ont., 1979.
24 Bill 17, The Environmental Rights Act, 7th Sess., 11th Leg. N.W.T., 1990 (assented to 6 Nov.

1990).

25Bill 12, An Act Respecting Environmental Rights in Ontario, 2d Sess., 34th Leg. Ont., 1989.
26Recent amendments to Ontario’s Environmental Protection Act are a good case in point. Envi-
ronmental Protection Act, R.S.O. 1980, c. 141, as am. S.O. 1990, c. 18; S.O. 1989, c. 30 & S.O.
1988, c. 54 [hereinafter E.P.A.].

1991]

GREENING OF ENVIRONMENTAL LAW

D. Failures of Symbolic Regulation

The structural problems with these early approaches to pollution control
can be summarized in the following way. First, the process is reactive rather
than anticipatory. Like the courts, the regulatory mechanisms do not “kick in”
until a problem has been identified. By then, most regulation comes too late to
solve all but the simplest of problems. Secondly, the process generally lacks
legitimacy. By assuming that “the government” speaks for the public; by
excluding public interest participation, the process is perceived as being little
more than symbolic reassurance for an apprehensive and increasingly cynical
public. Environmental regulation has become a convenient phrase to describe a
cosy relationship in which industry makes relatively minor reductions in their
pollution in return for government approval of their activities. A third problem
is that as site specific and technical regulation increases, liability begins to shift
from the regulated to the regulator. Ultimately, industry is able to demand that
government set the regulatory standards and write the specifications for the pol-
lution control equipment. If those standards are met, the fault then lies with the
standard and hence with those who set the standard, not with the polluter. The
fourth problem is that the definition of the problem – market and technological
failures –
destine the regulators to define success in terms of technological
fixes and market adjustments. Neither definition, however, addresses the under-
lying social problems that have lead to pollution. Finally, knowledge about the
problem is growing in more or less direct proportion to the level of regulatory
effort, with the result that the problem is continually being redefined in response
to increased regulatory effort. Regulatory solutions –
usually expressed in
terms of maximum permissable levels of pollutants –
are obsolete almost as
soon as the standard is announced. Finding a solution is like shooting at a mov-
ing target; with the trigger attached to the target. Each new regulatory initiative
changes society’s perception of the problem and the solution. The result? A
strategy focused on solving yesterday’s problems that is just not working.

II. Stage Two: Preventive Regulation

Both the pollution problem and its perceived causes change as society
moves into a second level of environmental consciousness. The problem is no
longer described as “gross pollution” –
blackened skies and sludge-filled
northern lakes –
it is now more subtle and insidious, and less obvious. Perhaps
the most frightening aspect of this new order of pollution relates to what has
come to be described as “exquisite toxics” –
odourless, colourless, tasteless
and deadly substances, such as dioxins, P.C.B.s and furans. The problem is often
described as one of “environmental risk” and surfaces as the deadly toll that is
documented in epidemiological studies exposing birth defects, allergies and
mutations. Many pollutants are bio-accumulative. Others are relatively harmless

McGILL LAW JOURNAL

[Vol. 36

on their own but when released into the environment combine with other toxins
to create a deadly synergy.

Another dimension of the problem centres around what has traditionally
been called land use planning or resource allocation decisions. At one level,
these planning problems are described by the neighbourhood battle cry of “Not
in My Backyard” (N.I.M.B.Y.). At another level they are described by the per-
sistent and unrelenting opposition to cutting last stands of old growth forests, to
committing last wild rivers to hydro-electric development, or to despoiling sig-
nificant natural landscape with transmission facilities. Both types of decisions
are irreversible, at least in the short to medium term, and both involve long term
impacts, with relatively little opportunity to remediate.

A. Definitions of the Problem

The paradigms that are used to define and explain these new order prob-
lems have changed markedly from the market and technological failure of past
models, although strong elements of the earlier models continue to be impor-
tant. “Environmental risk” and land use disputes challenge earlier beliefs that
humans may, indeed perhaps shall, dominate the earth. One of the first to tell
this story was L. White in his classic article, “The Historical Roots of our Eco-
logical Crisis.”’27 More recent versions have been told by L.L.N. Evemden s and
J.A. Livingston.29 The story can be told succinctly through the following
passage:

I personally doubt that disastrous ecologic backlash can be avoided simply by
applying to our problems more science and more technology. Our science and
technology have grown out of Christian attitudes toward man’s relation to nature
which are almost universally held … [A]ll the cosmos rotates around our little
globe. Despite Darwin, we are not, in our hearts, part of the natural process. We
are superior to nature, contemptuous of it, willing to use it for our slightest whim
… What we do about ecology depends on our ideas of the man-nature relationship.
More science and more technology are not going to get us out of the present eco-
logic crisis until we find a new religion, or rethink our old one.30

The experience of early, though largely symbolic, regulatory efforts has
helped us recognize environmental problems for what they are; problems of
conscience and problems that are highly complex, interdependent and polycen-
tric. Neither adjustments to economic incentives or disincentives, nor techno-

27(1967) 155 Science 1203.
28The Natural Alien: Human Kind and Environment (Toronto: University of Toronto Press,

1985).

(Bumaby, B.C.: S.F.U. Publications, 1989) 123.

29″The Ecological Imperative” in R. Bradley & S. Duguid, eds, Environmental Ethics, vol. 2
30Supra, note 28 at 1206.

1991]

GREENING OF ENVIRONMENTAL LAW

logical fixes will, by themselves, solve the problem. As White says, we need a
new religion or at least to rethink our old one.3

B. Process

The legislative and policy response to this new definition of pollution is
made up of four principal components: (1) increased regulatory activity, includ-
ing: extending liability for pollution to corporate officers and directors,
extending a court’s jurisdiction over future activities and clean-up matters and
increasing fines and other penalties; (2) new environmental impact assessment
legislation; (3) new legislative focusses on clean up and remediation; and (4)
private mechanisms by which the parties to a transaction may identify and avoid
environmental liability (environmental audits or risk assessments).

This second level response to environmental problems continues to rely
heavily, although not exclusively, on an adversarial model of dispute resolution.
Thus, modem environmental assessment and remedial legislation is based
largely on a competitive or adversarial model of dispute resolution. On the other
hand, privately initiated environmental audits and risk assessments rely more on
co-operative approaches to identifying and rectifying problems. One feature of
the legislative aspect of this preventive approach is that it substantially expands
the rights of affected persons, both from a substantive and a process standpoint.
Proponents of new activities are now required not only to assess potential envi-
ronmental impacts of new undertakings, but also to examine the relative impacts
of a broad range of alternative technologies and alternatives to a proposed
undertaking.

Most legislatively sanctioned assessment processes enable any person to
request a public hearing before a quasi-judicial board; to participate fully in the
hearing; and to insist that the matter be disposed of by the board according to
the purpose of the statute. This has dramatically shifted the balance of power in
favour of the public objector. No longer are proponents able to strike a deal with
regulators behind closed doors. If deals are struck, they are generally struck
with all affected parties. The most likely scenario though is that a proposed
undertaking simply plods forward, labouring under the weight of a detailed,
formal hearing destined to examine every potential problem in great detail,
without regard to relevance, expense or an efficient deployment of scarce inves-
tigative resources. In the end, decisions are made, proposed projects are mod-
ified or even abandoned, and the environment is undoubtedly better protected
because of such a process. But, as delays and costs rise, there is some concern
that the process is attracting far more resources than the environment.

31Ibid.

REVUE DE DROIT DE McGILL

[Vol. 36

One of the most important new developments in this area is the growing
popularity of privately initiated and conducted environmental audits or risk
assessments. Roger Cotton describes the impetus for the environmental audit in
the following terms:

It is clear that these liabilities [increased prosecutorial activity and fines] have
acted as an impetus to structure internal organization and transactions in a ‘pros-
criptive,’
‘proactive’ or ‘preventative’ manner, as opposed to the
reactive approach to environmental problems common in the past.

‘anticipatory,’

Audits enable a corporation to maximize opportunities for effective corporate
planning, set corporate priorities and design corporate strategy.

Some audits are initiated internally and are designed to identify whether a
firm is in compliance with existing or potential environmental laws, and
whether it is exposed to any liability. More often, however, the audit is per-
formed in response to a demand from one or more parties to a transaction to
ensure that the party is not assuming any undue environmental risk. Audits are,
therefore, principally transaction driven. Thus, they are now a common feature
of transfer of assets; financing, especially if assets are being offered as security;
transfer of possession (lease, license, easement); expansion of an existing facil-
ity –
often the audit is a first step toward an application for environmental
approvals of the proposed expansion; and receivership or bankruptcy of a busi-
ness where a receiver or trustee comes into possession of land or other assets.

The next logical step is to undertake audits as a condition precedent to pub-
lic share offerings, annual general meetings of public corporations and the
launch of a new product.

As a private process, the audit lacks much of the structure and rigour of a
formal hearing or even informal negotiations relating to a proposed permit or
licence. Audit procedures are, however, becoming regularized as experience
grows in this area. Most audits now include the following: explicit top manage-
ment support for environmental auditing and commitment to follow-up on audit
findings; an environmental auditing function independent of audited activities;
adequate team staffing and auditor training; explicit audit program objectives,
scope, resources and frequency; a process that collects, analyzes, interprets and
documents information sufficient to achieve audit objectives; a process that
includes specific procedures to promptly prepare candid, clear and appropriate
written reports on audit findings, corrective actions and schedules for imple-
mentation; and a process that includes quality assurance procedures to assure
the accuracy and thoroughness of environmental audits.

32R. Cotton, “Preventative Lawyering and the Environmental Audit” in D.P. Emond, ed., Com-
mercial Dispute Resolution: Alternatives to Litigation (Aurora, Ont.: Canada Law Book, 1989) 245
at 247.

1991]

GREENING OF ENVIRONMENTAL LAW

As public assessments and private audits evolve, I believe that the logic of
preventive regulation and the need for an efficient process will lead to two
important refinements. The first involves a convergence of the two processes,
so that public assessments will adopt some of the features of the private audit
and private audits will expand to mirror many of the attributes of the public
assessment.

Society simply cannot afford the “luxury” of committing every undertak-
ing to formal public review, particularly if that review offers either side the abil-
ity to require a lengthy public hearing. Activity will simply die under the weight
of a process that is inordinately expensive, promises marginally better decisions
and delivers uneven results, many of which leave all participants dissatisfied.
Measures are urgently needed to streamline the process. Conversely, privately
conducted environmental audits lack much-needed legitimacy. No matter how
hard a public profile company tries to “do the right thing,” if it continues to do
it in private, it will never win full public support for its activities. The
N.I.M.B.Y. syndrome will ensure that every new initiative, and many well-
established practices, will come under continual attack. The result of these two
pressures is that public assessment managers are actively exploring ways in
which affected parties can resolve their differences away from the adversarial
jousting of the public hearing,” while private audit managers are examining
ways of including all affected parties in the audit process.

The second trend is equally important, although much slower in coming,
at least at the public assessment level. Much of the impetus behind both assess-
ments and audits is the desire to anticipate, assess and avoid environmental
problems. To this end it makes sense to make decisions about potential impacts
and mitigative measures before proceeding. But try as we might, we can never
know everything before proceeding. Nor would we want to know everything –
the costs are simply too high and the likely benefits too low. It makes sense,
therefore, to conduct a more limited assessment or audit of potential environ-
mental impacts and a more detailed assessment of real or actual environmental
impacts. This philosophy is reflected in the growing demand that environmental
assessment include a monitoring component that involves those who must live
with the impacts, namely, affected neighbours. The same philosophy lies behind
the standing environmental audit committees of major Canadian corporations.
Both recognize the fact that many future impacts are unanticipatable, that con-

33Both the draft procedures for the Environmental Assessment Board (Ontario), The Hearing
Process: Discussion Papers on Procedural and Legislative Change (Toronto: Environmental
Assessment Board, September 1990) & Bill C-78, An Act to Establish a Federal Environmental
Assessment Process, 2d Sess., 34th Pan., 1989-90 [hereinafter referred to as Bill C-78] make pro-
visions for the parties to reach agreement, with or without a mediator. (While Bill C-78 died on
the order paper, it has been introduced in identical form as Bill C-13, An Act to Establish a Federal
Environmental Assessment Process, 3d Sess., 34th Parl., 1991).

McGILL LAW JOURNAL

[Vol. 36

tinuous vigilance is required and that there are no final answers to environmen-
tal problems.

C. The Lawyer’s Role

Regulatory counsel’s work has changed substantially under this model. No
longer are counsel involved in private negotiations with polluters over the terms
of a certificate, order or licence. Regulation is now practised according to much
more specific, well-defined criteria. Counsel’s role now is to assist all parties,
proponents and opponents, in understanding and participating more effectively
in the assessment and regulatory process.

Corporate counsel’s role has evolved into one in which less time is devoted
to responding to crises or defending accused polluters. Granted, increased levels
of investigative and prosecutorial activity have meant more work for the litiga-
tors, but this is a relatively small proportion of the total work involved. Coun-
sel’s work is now more creative, acting as the person who orchestrates or over-
sees a comprehensive review of client activities in the context of an audit, or
planning and preparing for an environmental assessment hearing in the context
of a new proposal. Counsel is now required to identify and bring together mem-
bers of a scientific/engineering team, and to co-ordinate, assimilate and analyze
the contributions from each member of the team.

The greatest changes have taken place for those who represent environ-
mental and public interest groups. The members of the public are now more or
less full participants in any public decision-making process, especially environ-
mental assessment processes. While their client’s interests may be different
from that of their “opposing friends,” the mode of participation is essentially the
same. At the hearing, it involves calling evidence, cross-examining witnesses
and presenting arguments. Because, however, the process continues to be adver-
sarial and highly confrontational, public interest groups tend to play a critical
rather than a creative role. They regard their function as opposing a proponent’s
plans –
rather than
attempting to facilitate solutions.

exposing weaknesses in its evidence and argument –

D. Failures of Preventive Regulation

While preventive regulation is clearly an improvement over earlier regula-
tory efforts, this approach continues to suffer from many of the earlier problems.
It continues to rely far too heavily on an adjudicative model of dispute resolu-
tion: adjudication is used to fashion environmental policy; adjudication is used
to put policies, to the extent that they are ever expressed, into effect; and, of
course, adjudication, in the form of prosecutions, is used to enforce policy.
There is little opportunity for the parties to seek out creative, innovative solu-
tions. In fact, given the uncertainty and unpredictability of the process, the

1991]

GREENING OF ENVIRONMENTAL LAW

incentives are all in the opposite direction. Proponents attempt to overwhelm
opponents with enormous quantities of largely irrelevant information, and oppo-
nents cross-examine witnesses on every conceivable issue. One side hopes to
win through exhaustion and attrition; the other, by stumbling across the “fatal
flaw” in the proponent’s case. The resources consumed in this “charade” are so
great that environmental assessments are saved for the “mega project”, leaving
the vast majority of problems to be dealt with through the less comprehensive,
and often ineffectual, approval process.

A further failure of the preventive approach is that because it loads up the
approval process for new projects with elaborate assessment and hearing
requirements, there is a built-in bias in favour of the status quo. In one sense,
this is environmentally sound. Procedures that slow down the rush toward new
activities by requiring a sober second thought cannot help but benefit the envi-
ronment. On the other hand, to the extent that the process prefers old problems
such as leaking toxic waste disposal sites, to new solutions, it imposes an enor-
mous cost on the environment.

Finally, recent amendments to the traditional environmental protection
statutes have done much to eliminate the last vestiges of the cozy relationship
between the regulator and the regulated. While this is certainly to be applauded,
there is now growing concern in corporate Canada that increased prosecutorial
activity undermines any incentive to work co-operatively with government and
the scientific community to solve environmental problems. Few still seek a
“sweet deal” from governments. What responsible corporations now want is
recognition that there are no simple solutions to pollution problems and that
society’s resources should be deployed to find solutions, not fight over
alternatives.

m. Stage Three: Co-operative Problem-Solving

Not much has worked very well in the environmental protection field up
to this point. Granted there have been some notable successes, but the general
consensus seems to be that we are slipping further and further behind. The prob-
lem is that the approach has generally been wrong. It has proceeded from an
adversarial, competitive, rights-oriented model that was destined to siphon off
creative energies in a contest of rights regulated only by the logic of justice and
due process. The focus has been on defining rights and fine-tuning the dispute
resolution process, rather than on solving environmental problems. What is
needed is a new model that will redirect these energies toward practical solu-
tions to real environmental problems. This model must be based on principles
that emphasize interdependence, connectedness, respect, obligation, and
co-operative approaches to problem-solving.

REVUE DE DROIT DE McGILL

[Vol. 36

A number of factors have made this approach possible. First, as we move
closer to the precipice of environmental calamity, values are converging. There
is no escape from a global warming trend as there once was from air borne par-
ticulate matter – move up wind. Secondly, some dramatic recent events have
served to remind us of the real costs of fighting over principle and process,
rather than solving problems. The now infamous Hagersville tire fire’ offers a
classic case in point. Historically, tires have simply been sent to landfills –
a
perfect example of an “out of sight, out of mind” “solution.” It is also a perfect
example of how ill-conceived “solutions” create long-term disposal problems.
However, with changing attitudes and the prospect of recycling and reusing
tires, a number of tire “dumps” have sprung up across the country. The theory
behind such facilities is that it is better to dispose of tires in a manner that per-
mits future recovery as recycling technology creates a market for used tires,
than simply to send the tires to a landfill. This is the point in the Hagersville
story at which the Ontario Ministry of Environment (M.O.E.) intervened to reg-
ulate the tire dump by issuing a control order that specified the way in which
the tires should be “stored.” The owner regarded the control order as ill-
conceived, expensive to implement and largely ineffective and “appealed” the
order to the Environmental Appeal Board. The appeal stayed the implementa-
tion of the order. Following a lengthy hearing, the Board imposed even more
stringent terms on the owner, and he, in turn, launched a further appeal to the
courts. Before this appeal was heard and before the control order, as strength-
ened and expanded by the Board, was implemented, arsonists started the fire
and the rest is history.

The tragedy of the case is not simply the fire, for I expect that the long term
impacts of contaminated air, soil and ground water are relatively minor com-
pared to the ecological time bombs oozing out of old liquid hazardous waste
dumps. The tragedy is that a resource, the tires, was not in some way recycled
and reused. Notwithstanding a special $5 per tire tax and a $30 million tire fund,
the Ontario Government did virtually nothing to co-operate with industry to
convert a potentially lethal resource into a beneficial resource such as new tires
or heat.

If Hagersville describes the costs to the environment of the parties not act-
ing co-operatively to solve problems, the recent mediated carbonated soft drink
regulations in Ontario is a testament to the benefits of co-operative action.
Ontario regulates carbonated soft drink containers under the litter provisions in
Part VIII of the E.P.A. In response to market demand, the soft drink industry has
come under increasing pressure to sell more and more of its product in recycla-
ble cans and plastic P.E.T. bottles, and less and less in returnable, reusable bot-

34Hagersville received widespread notoriety in 1989 when tires stored by Tyre Ring at a site out-
side Hagersville near Hamilton, Ontario were ignited by arsonists. The twelve million tire dump
burned out of control for more than two weeks.

1991]

GREENING OF ENVIRONMENTAL LAW

ties. The environmentalists objected to industry’s proposed response to these
market driven pressures. They believed that more cans meant more litter, more
energy and more waste. In an attempt to find a solution that addressed environ-
mental concerns while at the same time meeting public demand and industry
needs, the M.O.E. convened a meeting of all representatives in 1985, ostensibly
to win support for draft amendments to the soft drink container regulations. It
soon became clear, however, that few participants had been consulted about the
proposed changes and hence almost none of the participants were prepared to
accept them. The solution was to create a small representative group of govern-
ment, industry and public interest group participants who would attempt to con-
vert some vague general principles into an agreement that would form the basis
for new regulations. The result was not perfect. The agreement that emerged
after ten weeks of part-time negotiation was ambiguous in places and contradic-
tory in others. It did, however, have the support of the parties. In the end, it
became the basis for new regulations, and even more importantly, it became the
driving force behind Ontario’s blue box program.”

Under the terms of the agreement and the regulations, the soft drink com-
panies may convert from refillable bottles to recyclable cans, plastic P.E.T. and
glass bottles in direct proportion to the rate at which these products are recycled.
Thus, as recycling performance improves, the industry can reduce the percent-
age of refillable bottles. The challenge facing industry was how to improve
recycling performance –
something over which it had virtually no control. The
solution involved creating an association, the Ontario Multimaterial Recycling
Incorporation (O.M.R.I.), funding it with more than $20 million of industry
money, winning provincial support, and charging the association with the task
of introducing a curb-side recycling program. The recycling program has been
so successful that the M.O.E. announced in Spring 1990 that it was further
reducing the percentage of refillable bottles that the industry is required to offer
to the public.36

The lessons from these two recent episodes confirm the premise that lies
behind the co-operative model. Competitive, adversarial approaches tend to
divert creative energies away from potential solutions. Co-operative, problem-
solving approaches, on the other hand, tend to show that all parties have a com-
munity of interest in solving environmental problems, and that the public inter-
est groups must play a key role in finding and implementing those solutions.

35D.P. Emond, “Ontario Pop Law Mediation” (1986) 18 Resolve 12 [newsletter published by the

Conservation Foundation, Washington, D.C.].

36See Press Release, “Ontario Soft Drink Companies Must Meet Refillable Quotas” Environ-
ment Minister Ruth Grier, Oct. 15, 1991, N.R. #615/90. Since the election of the N.D.P govern-
ment in Ontario, the soft drink regulations have again come under close and critical scrutiny. The
new government’s policy is to encourage reuse, not recycling and thus we may well see a return
to a policy that demands a higher percentage of refillable containers.

McGILL LAW JOURNAL

[Vol. 36

The third factor driving this co-operative approach to environmental
problem-solving is the growing recognition that we cannot afford the delays, the
fights and the stalemates that have become characteristic of the previous two
models. The costs of fighting and inaction are simply too high.

A. Definitions of the Problem

The definition of pollution has not really changed under this model. It con-
tinues to be a combination of gross pollution and environmental risk. What has
changed, however, is the approach to solving the problem. Thus, from an earlier
preoccupation with correcting market failures and developing technological
fixes, to a more recent focus on anticipating and avoiding environmental future
problems, the latest approach is one that builds on these earlier initiatives in a
more consensual, co-operative problem-solving environment. It proceeds from
the premise that we are all “in this mess together” and we are going to have to
“solve it together.” The “we” includes not only the traditional protagonists, but
a much-expanded definition that encompasses everyone –
consumers, employ-
ees, affected residents and others.

B. Process

The process that will extricate us from this dilemma is one that is some-
times described as alternative dispute resolution but is more accurately labelled
co-operative or creative problem-solving. It is a multifaceted process. It starts
with a basic redistribution of rights, principally through legislative recognition
of basic environmental rights. Rights define power, and without the power that
derives from judicially enforceable rights, the public is not likely to be an effec-
tive participant in any form of co-operative problem-solving. The problem-
solving must, therefore, take place in the shadow of the law and the courts.

The principal approach to resolving environmental problems must be nego-
tiation. Roger Fisher and William Ury, in their book Getting to Yes,37 emphasize
that co-operative problem-solving or “win/win” solutions demand a principled
approach to negotiation. By this they mean negotiation that separates the people
and personalities from the problem at hand; focuses on interests, not on posi-
tions; invents options for mutual gain; and employs objective criteria.38

37Boston: Houghton Miffen, 1981. While there is much about this approach that is attractive, it
fails to, adequately account for either the unprincipled negotiator or for what may be described as
“distributional bargaining.” See J.J. White, “The Pros and Cons of ‘Getting to Yes’
(1984) 34 J.
Legal Educ. 115 and T.C. Schelling, The Strategy of Conflict (New York: Oxford University Press,
1960).

38Fisher & Ury, ibid.

1991]

GREENING OF ENVIRONMENTAL LAW

Because not all negotiations can generate agreement, the process must also
include mechanisms to enable the parties to employ the assistance of a facilita-
tor or mediator.

Howard Raiffa, in his book The Art of Negotiation, 9 succinctly outlines the
potential contribution of a mediator or neutral third party establishing a con-
structive ambience for negotiation; collecting and judiciously communicating
selected confidential material; helping parties clarify their values; deflating
unreasonable claims and loosening commitments; seeking joint gains; keeping
negotiations going and articulating a rationale for the agreement.4”

This process is multifaceted. It recognizes a policy or rule-making compo-
nent, a rule-implementation component, and an enforcement dimension. It rec-
ognizes that no one process is appropriate for all tasks. Nor is it a process that
naively suggests that the public can be a full participant in solving environmen-
tal problems without a fundamental redistribution of rights. It recognizes an
important role for the process designer. Just as adjudication will not solve all
problems, so too negotiation and mediation cannot be expected to solve all
problems. The trick is to know when and how to use each process and then to
sell that approach to the parties.

C. The Lawyer’s Role

Lawyers associated with environment ministries and departments are hav-
ing difficulty with the somewhat reduced roles that this approach implies for
them. Empowering the parties to fashion their own solutions comes largely at
the expense of departmental power. No longer is the department’s role to pre-
scribe permissible standards or required technology. No longer is the depart-
ment able to negotiate regulatory standards with the affected industry. The task
now is facilitative rather than prescriptive. Departments are increasingly being
called upon to manage the process, to provide the infrastructure for principled
negotiation and to ensure that solutions meet minimum standards of environ-
mental protection. Many departmental lawyers still cling to the old ways of pri-
vate deals, vigorous prosecution and competitive participation at administrative
hearings. Their role is clearly evolving, however, from one that imposes “solu-
tions” to one that facilitates co-operative problem-solving among the parties.
Indeed, often the solution is to delegate power to the parties.

Many government lawyers and policy-makers are not very comfortable
with this new role. Surely, they argue, it is better to resist all but a “perfect solu-
than to agree to some-
tion” –
thing that may, as knowledge increases, be found to involve some level of risk

something which by definition does not exist –

39Cambridge, Mass.: Belknap Press, 1982.
40 Ibid.

REVUE DE DROIT DE McGILL

[Vol. 36

and hence public unacceptability. The problem is that while we wait for the per-
fect reuse strategy or waste disposal solution, problems and risks continue to
mount. Also, the problem is that there are no perfect solutions. Time and expe-
rience will always expose some weaknesses in even the best conceived solu-
tions. The solution is not to seek perfection, but to recognize that all we can do
is our best, that this will never be good enough in the long term, and that we
must continually talk about what more can and must be done.

There is, however, a creative role for departmental lawyers. This group has
responsibility to manage the process, to ensure that all parties that have some-
thing to contribute are able to participate, to ensure that decision-making pro-
ceeds from a sound factual and scientific basis and to ensure that solutions are
consistent with public policy. Generally, this will mean that government must
be a party to the negotiations as well as process managers.

Corporate counsel generally fall into two categories. The first is made up
of those who resent the fact that “the public” is playing a larger role in the proc-
ess, especially if their client is required to fund public participation. This group
is somewhat suspicious of any process that denies the preeminence of adjudica-
tive dispute resolution, and is generally apprehensive about the impact of these
new approaches on its own bottom line. John Willms captured these concerns
very nicely when he wrote:

It is naive to expect the legal profession to unreservedly embrace environmental
mediation. Firstly, lawyers don’t unreservedly embrace anything that is without
precedent. Environmental and planning disputes have sufficient novelty to titillate
and alarm the most adventuresome practitioner…. One reason a lawyer believes
that mediation cannot possibly occur without prejudice to the client’s position is
that mediation forces a fairly direct and frank exchange of information and opinion
before the hearing, in a setting that is beyond the lawyer’s control. Lawyers have
a direct and inevitable conflict of interest when mediation is proposed. Loss of
control and an expanded role for the client may well reduce a lawyer’s involve-
ment, and time is the lawyer’s sole market commodity…. [T]he lawyer is loathe
to be displaced from a traditional and lucrative activity –
the conduct of lengthy
and litigious actions.4 1

The second type of lawyer accepts the role of environmental consultant/
solicitor and seeks to assist the client in a variety of “new” ways including:
identifying and correcting areas of potential liability; developing contingency
plans and employee training programs; retaining and working with environmen-
tal scientists and engineers to solve environmental problems and implement
new solutions; identifying (or creating) relevant public interest groups and
establishing round table negotiations on matters of public concern; and assisting
clients to put the environment first in corporate planning decisions.

41″Environmental Mediation and the Lawyer” (1986) 1:3 C.E.M.N. 3 at 4.

1991]

GREENING OF ENVIRONMENTAL LAW

The skills needed for this new role are the skills of all good corporate coun-
sel –
identifying and analyzing problems and potential solutions, negotiation
and communication skills. As one moves from an adversarial approach to dis-
pute resolution, to a co-operative approach to problem-solving, perspectives
change. Whereas formerly success was measured in terms of defeating an adver-
sary, now it is measured in terms of the extent to which counsel can solve her/
his adversary’s problems. Corporate counsel must also be sensitive to public
opinion and the politics of pollution control. Thus, an appropriate role for coun-
sel is to track trends in public attitudes toward the environment, and to antici-
pate and help shape new legislative initiatives.

Public interest counsel, like their corporate and government counterparts,
are having some difficulty adjusting to their new role. Simple opposition to new
proposals is becoming less and less credible. There is a time to be sceptical, and
there is a time to vigourously oppose ill-conceived and environmentally
unsound proposals. But there is also a time to participate in more creative,
problem-solving exercises.

There are a number of reasons why public interest groups are reluctant to
participate in environmental problem-solving. First, groups that lack the
resources, broadly defined, to participate effectively in consensus-seeking proc-
esses are reluctant to add credibility to the process by being part of it. What is
surprising, however, is that inadequate resources tend to characterize public par-
ticipation in all processes, not just negotiation. A lack of resources seldom pre-
cludes public participation in a public hearing. A further explanation, therefore,
may be that negotiation demands certain creative, problem-solving skills that
tend to be much more time consuming and resource intensive than, for example,
the cross-examination of a key proponent witness. Furthermore, intervenors can
usually expect some participant funding or a cost award at a public hearing. No
comparable funding is available for negotiations.

A second reason why interest groups and counsel are reluctant to partici-
pate in environmental negotiations results from the ambivalence a potential
negotiator often feels about negotiations, particularly as compared with partic-
ipation in some other process. This reluctance stems from a number of factors.
Although few public representatives have had any formal training as negotia-
tors, they are expected by their constituents or clients to achieve an optimal
result at the negotiating table. Furthermore, the very thing that makes negotia-
tion an attractive alternative to other pollution control processes, namely, the
ability to have a major influence on the final result, makes negotiation unattrac-
tive to the inexperienced or insecure. The potential and often real power con-
ferred on the negotiator creates enormous expectations and hence enormous
pressures. With a public hearing, an unacceptable decision can always be
blamed on an insensitive, ill-informed or ignorant panel. With government reg-
ulation the department and minister must accept responsibility for the result.

McGILL LAW JOURNAL

[Vol. 36

With negotiations, however, the result is acceptable to the parties and hence any
criticism must be borne by the negotiators. It takes a strong, persuasive person
with a solid mandate to compromise a group’s opening position in return for a
final agreement. Most would prefer a process in which blame can be appor-
tioned to someone other than those accountable to the concerned group.

The organizational structure required for effective negotiation is often
inconsistent with the organizational design of the public interest group. Effec-
tive negotiation demands the ability and authority to act quickly and decisively
on a broad range of issues. This is normally characteristic of a hierarchically
structured organization in which the negotiator is a key member of the executive
and enjoys the confidence of the group. Public interest groups, however, tend
to shun such hierarchical structures because they are thought to be inconsistent
with the objectives of the group. As the organization responds to the participa-
tory, non-hierarchial demands of the membership, its ability to negotiate effec-
tively decreases. As the organizational structure tries to adjust to facilitate effec-
tive negotiations, negotiators become increasingly detached and isolated from
the membership and this, in turn, discourages potential negotiators from
participating.

Parties, especially opponents of development, traditionally and persistently
overestimate the effectiveness of alternatives to negotiation, particulary public
hearings and/or litigation. This may inhibit the parties from ever sitting down
together. More often it will mean that over time and after intensive negotiations,
the negotiator’s position will soften as more is learned about the other side’s
needs. There is, of course, no corresponding softening of the group’s perspec-
tive or expectations. The result is a growing gap between the negotiator and the
client expectations.

There are two final reasons why the public is reluctant to negotiate. First,
negotiation suggests, indeed demands, compromise. For many environmental-
ists, there is no compromise. For them, it is better to lose a principled fight than
to have to concede anything to win agreement. Second, most negotiators natu-
rally, although perhaps irrationally, tend to engage in competitive or value-
claiming tactics rather than co-operative or value-creating tactics.42 Because the
co-operative negotiator is more vulnerable than her competitive counterpart,
and because the temptation to attempt to exploit the vulnerable is almost irre-
sistible, co-operative behaviour is soon discouraged and all parties soon “hunker

42This concept is developed in D.A. Lax & J.K. Sebenius, The Manager as Negotiator: Bar-
gaining for Cooperation and Competitive Gain (New York: Free Press, 1979). Value-creating
describes the process by which parties identify options for resolving a dispute, some of which
include ways in which the issues are broadened and in this sense the amount to be “won” in a res-
olution is increased. Value-claiming tactics describe the ways in which parties attempt to appro-
priate the increased value to themselves.

1991]

GREENING OF ENVIRONMENTAL LAW

down,” become self-protective, uncreative and even destructive, competitive or
distributional negotiators. The result is usually a breakdown in negotiations.

The obstacles to public interest participation can be addressed in a variety
of ways. First, government and proponents must be prepared to commit more
resources to public participation in the process. This might include better access
to government information and expertise or it might include financial assistance
to enable the group to acquire its own information. Second, subsidies that are
characteristic of traditional dispute resolution processes, including the cost of
the hearing room and decision-makers salaries, should also be extended to alter-
native or more consensual decision-making processes. Training programs would
also do much to boost the confidence of the public interest negotiator.

D. Problems and Prospects for Co-operative Problem-Solving

Any call for a new co-operative approach to solving environmental prob-
lems must address several problems or concerns. Stephen Goldberg, Eric Green
and Frank Sander ask:

Is there a danger that mediation, with its emphasis on accommodation and com-
promise, will deter large-scale structural changes in political and societal institu-
tions, that only court adjudication can accomplish, and that it will thus serve the
interests of the powerful against the disadvantaged? 43

Terry Ison expresses similar scepticism about the ability of negotiation to do
anything more than sanction existing problems.4

A second concern might be expressed in terms of the relationship between
process and result. Is it correct to assume, for example, that environmental dis-
putes can be resolved through a focus on dispute resolution process(es)? Is the
attempt to find a better process misplaced? At some point, one is bound to
become sceptical about the ability of seemingly “fair” processes to sanction and
legitimize “wrong” results.

Related to the general question about the role of process in solving more
specific environmental problems is the question about the role of negotiation
and co-operative problem-solving. Negotiation presupposes compromise. And
yet, as environmental issues are increasingly defined in terms of values and eth-
ics –
there is some
doubt about just how far negotiation can respond to the value demands of
environmentalists.

neither of which may be susceptible to compromise –

43Dispute Resolution (Boston: Little, Brown, 1985).
44Book Review of A Contract Model for Pollution Control (1985) 63 Can. Bar Rev. 859.

REVUE DE DROIT DE McGILL

[Vol. 36

Third, as has already been noted above, this approach to dispute resolution
presupposes a group of practitioners with a different orientation from those who
practice in the judicial system. As L.L. Riskin points out:

i.e. if one wins the other must lose –

The philosophical map employed by most practising lawyers and law teachers,
and displayed to the law students … differs radically from that which a mediator
must use. What appears on this map is determined largely by the powers of two
assumptions about matters that lawyers handle: (i) that disputants are adversaries
–
and (2) that disputes may be resolved
through application, by a third party of some general rule of law. These assump-
tions, plainly, are polar opposites of those which underlie mediation: (1) that all
parties can benefit from a creative solution to which each agrees; and (2) that the
situation is unique and therefore not to be governed by any general principle
except to the extent that the parties accept it.45
The result of the lawyer’s orientation and the litigation paradigm on which
it is based is that “lawyers tend not to recognize mediation as a viable means
of reaching a solution; and worse, they regard the kinds of unique solutions that
mediation can produce as threatening to the best interests of their clients.”46
Until lawyers accept a legitimate role for a co-operative approach to problem-
solving, environmental regulation will not move forward to generate the crea-
tive, innovative solutions we so urgently need.

Notwithstanding these challenges, the prospects for this co-operative
approach to solving environmental problems are very exciting indeed. Govern-
ment, however, must take a far more creative and pro-active role in terms of
facilitating such an approach to resolving environmental disputes –
perhaps to
the point of legislatively mandating negotiation and mediation.47

Conclusion

initially symbolic regulation –

By and large, this paper has focused on process. It has attempted to
describe the correlation between a problem –
or more precisely the way in
which a problem is defined –
and the process or processes for resolving that
problem. Thus, regulation –
describes a proc-
ess response to the problem of market and technological failure. Similarly, envi-
ronmental assessments and environmental audits are processes for anticipating
irreversible environmental problems. Finally, negotiation and co-operative
problem-solving are ways of addressing and solving highly complex, interde-
pendent, multi-party environmental problems. The first two processes are
largely, but not exclusively, adversarial in nature and assume that solutions will
emerge from a clash of rights –
that is, the right to participate in economic
activity versus the right to a clean environment. The third, however, follows

45″Mediation and Lawyers” (1982) 43 Ohio St. L.J. 29 at 43-44.
46Ibid. at 44.
47See the proposed mediation provisions included in Bill C-78.

1991]

GREENING OF ENVIRONMENTAL LAW

from the apparently novel premise that we are all in this mess together –
we are all part of the problem and thus we must all be part of the solution.

that

What is the role of law in all of this? Clearly, the plethora of new statutes
and regulations suggests a key role. Laws, however, do not solve problems.
Indeed, it sometimes seems that environmental problems are growing at more
or less the same rate as new laws are being passed. Laws create a complex of
rights, obligations, liabilities, incentives and disincentives –
a fi-amework
within which parties can or cannot solve problems. What environmental laws
must now do is: (1) recognize the legitimacy of negotiation, mediation and other
innovative means of problem-solving; (2) establish a regime of rights and obli-
gations that ensures that all parties are able to participate effectively in the proc-
ess; and (3) recognize the limits of co-operative problem-solving. Criminal pol-
lution is not a matter that is, in my view, susceptible of negotiation. It should
be prohibited and the prohibition enforced through appropriate sanctions.

Opportunities in the future will exist for persons with two quite distinct
skills. The first set of skills relate to process design and management. If the
challenge is to find new ways to redirect society’s creative energies toward
co-operative problem-solving, we will need people to design processes that
focus our attention on solutions rather than on discrediting opponents. The chal-
lenge, therefore, is to accommodate diverse interests in round table discussions
and consensus building, to facilitate independent fact finding, to help parties to
appreciate the legitimacy of other interests, and to build confidence through
skills training.

The second set of skills relates to strategic planning, particularly in the cor-
porate field, and especially on behalf of those who refuse to put the environment
first. Without environmentally sound strategic planning, corporations are des-
tined to become mired in a morass of public opposition and government pros-
ecution, unable to initiate new activities and ultimately, unable to even continue
existing activities.