Environmental Law

In commemoration of their 50th anniversary, this chapter examines the Federal Courts’ role in shaping environmental law in Canada. The chapter uses well-known environmental principles – the precautionary principle, sustainable development and access to (environmental) justice – as focal points for examining environmental law as well as the legal culture of the Federal Courts. The chapter identifies four distinct interpretive roles that the Federal Courts have ascribed to the precautionary principle and it argues that three of these roles have the potential to generate more coherent and transparent doctrine that upholds the rule of law in the environmental context. In contrast, chapter argues that the Courts have struggled to provide any legal meaning to the principle of sustainable development. Further, it identifies how the Courts have improved access to environmental justice through their standing and costs doctrines. Finally, the chapter critically examines a notable example of how the Federal Courts actively avoid engaging with environmental principles

The Environmental Emergency and the Legality of Discretion in Environmental Law

This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: They reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework of the environmental emergency, this article offers a critique of the current understanding of discretion in environmental law and suggests how an alternative conception of the rule of law can both constitute and constrain the state’s regulative authority over the environment

The Environmental Emergency and the Legality of Discretion in Environmental Law

This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: they reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework of the environmental emergency, this article offers a critique of the current understanding of discretion in environmental law and suggests how a

The Environmental Emergency and the Legality of Discretion in Environmental Law

This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: they reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework of the environmental emergency, this article offers a critique of the current understanding of discretion in environmental law and suggests how an alternative conception of the rule of law can both constitute and constrain the state’s regulative authority over the environment

The Promise of the Rule of (Environmental) Law: A Reply to Pardy\u27s Unbearable Licence

This short reply clarifies and defends the argument presented in The Environmental Emergency and the Legality of Discretion in Environmental Law. It responds to the arguments that were made, and that could have been made, in Pardy\u27s critique An Unbearable Licence

The Deliberative Dimensions of Modern Environmental Assessment Law

Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision making about major development projects with implications for environmental protection and the rights and title of Indigenous peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern environmental assessment can be understood through three public law frames: procedural fairness, public inquiry, and framework for the duty to consult and accommodate. It further argues that these three public law frames share features of deliberative decision making that can and should inform the implementation and interpretation of new design features in British Columbia and Canada’s reformed EA legislation

The Deliberative Dimensions of Modern Environmental Assessment Law

Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision-making about major development projects with implications for environmental protection and the rights and title of Indigenous Peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern EA can be understood through three public law frames: procedural fairness, public inquiry, and the framework for the duty to consult and accommodate. It further argues that these three public law frames share features of deliberative decision-making that can and should inform the implementation and interpretation of new design features in British Columbia and Canada’s reformed EA legislation. L’évaluation environnementale est une pierre angulaire du droit de l’environnement. Elle fournit un cadre juridique pour la prise de décisions par les instances publiques relatives aux grands projets de développement ayant des conséquences pour la protection de l’environnement et les droits et titres des peuples autochtones. Malgré l’existence d’une importante littérature soutenant que la consultation et la délibération constituent le mode d’engagement privilégié avec les personnes visées par les décisions touchant les évaluations environnementales, les exigences juridiques spécifiques de la législation en matière d’évaluation environnementale restent peu développées. Le présent article propose un fondement juridique pour l’évaluation environnementale délibérative. Il fait valoir que l’évaluation environnementale moderne peut être comprise à la lumière de trois cadres de droit public : l’équité procédurale, l’enquête publique et l’obligation de consulter et d’accommoder. Il fait également valoir que ces trois cadres de droit public partagent des caractéristiques de la prise de décision délibérative qui peuvent et doivent éclairer la mise en œuvre et l’interprétation des nouvelles caractéristiques de la législation sur l’évaluation environnementale en Colombie-Britannique et au Canada

The Environmental Emergency and the Legality of Discretion in Environmental Law

This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: they reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework of the environmental emergency, this article offers a critique of the current understanding of discretion in environmental law and suggests how an alternative conception of the rule of law can both constitute and constrain the state’s regulative authority over the environment

Vulnerability, Canadian Disaster Law and The Beast

This article is the first step in a major research project on Canadian disaster law. As such, the article\u27s first objective is to map the terrain of the law in Canada that governs disasters. To provide context for this exercise in mapping, the article focuses on the circumstances surrounding the 2016 Fort McMurray wildfire (\u27the Beast\u27). Focusing on the \u27the Beast\u27 also gives rise to the article\u27s second objective: a critical examination of the ways in which Canadian disaster law fails to reflect foundational social science research on disaster harm. The article argues that the current framework of Canadian law lacks nuance in its understanding of vulnerability and fails to identify and address communities that are especially vulnerable to disaster harm. It also argues that the implementation of the relevant law to disasters fails to adequately incorporate legal mechanisms that can connect disaster law with the underlying drivers of disaster vulnerability. The outcome is that Canadian disaster law currently leaves Canadians unnecessarily susceptible to disaster harm

The Public Law Paradoxes of Climate Emergency Declarations

Climate emergency declarations occupy a legally-ambiguous space between emergency measure and political rhetoric. Their uncertain status in public law provides a unique opportunity to illuminate latent assumptions about emergencies and how they are regulated in law. This article analyzes climate emergency declarations in Canada, the United Kingdom, Australia and New Zealand. It argues that these climate emergency declarations reflect back a set of paradoxes about how emergencies are governed in law—paradoxes about defining the emergency, its relationship to time and who gets to respond to the emergency and how. These paradoxes productively complicate long-held and over-simplified assumptions about emergencies contained in public law. They allow us to see the complex ways in which public law regulates emergencies—a necessity in a climate-disrupted world