The Courts, the Politicians, and the Environment

A lot of government decision-making makes people who care about the environment want to tear out their hair. Sometimes they go further and sue. Does it help?

Suing the government can certainly draw attention to a decision. Sometimes, the subsequent negotiations can lead to a better result. Very occasionally, Canadian courts actually do force a government to to do a better job on an environmental matter. For example, they have required the federal government to actually come up with a plan for protecting an endangered species, as the Species at Risk Act specifically requires them to do. And in Oldman Dam, the Supreme Court of Canada put unexpected teeth into the Environmental Assessment Guidance Order, leading to the adoption of the recently repealed Canadian Environmental Assessment Act and to a somewhat meaningful federal environmental assessment regime.

More often, Canadian courts defer to the government on environmental matters. (American courts seem less deferential, and have a history of citizen suits that have had a significant impact on environmental protection in that country.) In one of the most flagrant examples, the Federal Court of Appeal refused to require the Harper government to comply with the Kyoto Protocol Implementation Act, even though it was a valid federal statute specifically passed by Parliament. They said that the requirements of the statute were “not justiciable” and the only remedy for the Conservatives’ defiance of the KPIA was to be found at the ballot box.

Despite the odds against them, two new cases have been launched recently, in the hope that better results are to be found in the courts than through the political system.

ForestEthics and Donna Sinclair are suing the federal government and the National Energy Board in the Federal Court, seeking:

  1. A declaration that new provisions in the National Energy Board Act, restricting public participation in natural resource project hearings, violate Section 2(b) of the Canadian Charter of Rights and Freedoms (“freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”);
  2. An injunction restraining the NEB from deciding on approval of the Enbridge Line 9B Project in Ontario and Quebec—the first pipeline project to come under the new rules—until this lawsuit has been concluded; and
  3. An order that the NEB accept all letters of comment from groups and individuals who seek to participate in the Line 9B Project proceedings.

The federal government adopted the new provisions, to shorten and focus environmental assessment hearings on major resource projects, especially those associated with Alberta oil. In particular, they object to hearings about particular infrastructure projects, such as pipelines, being used to raise issues about whether and how the Alberta oilsands should be developed, and the climate impact of the oil produced there. The government says these are independent policy issues that it has not delegated to the National Energy Board; opponents point out that opposing the individual projects is their only forum for being heard on these larger issues.

To implement its new rules, the National Energy Board has adopted a 10 page application form that would be participants must complete; this is a significant barrier for many people. In addition, the Board rejects, unheard, applications from those who wish to raise issues that the government has decided to scope out. The key issue will be: is this unconstitutional? Can the Board simply refuse to hear from those who oppose government policy when considering an individual project? Is this the type of decision that courts will prevent politicians from making?

Meanwhile, Ecojustice, Ontario Nature and the Wildlands League have launched a lawsuit against the Ontario government protesting a lengthy set of exemptions given to businesses under Regulation 242/08 of the Endangered Species Act. The industries that received exemptions include agriculture, forestry, energy transmission, housing, oil and gas pipelines, mineral exploration, mine development, transit and wastewater management companies.

For example, bobolinks and meadowlarks are musical birds in terrible trouble, precisely because of the frequent destruction of their habitat by agriculture. Haying times that are best for farmers are often the times most destructive for bobolinks and meadowlarks. Since July 1, 2013, farmers have been freely permitted to kill, harm or harass these birds, and to destroy their habitat, in the course of any agricultural operation. Good news for farmers, I presume; very bad news for meadowlarks and bobolinks.

To win this legal challenge, Ecojustice will have to persuade the courts that governments cannot make policy decisions, for political and economic reasons, that increase the danger to endangered species that they said they would protect. Again, is this the type of decision that courts will prevent politicians from making? And if so, should they?

The Ontario government presumably decided to weaken the Endangered Species Act in order to increase its chances of surviving the next election. It is already facing substantial anger in many rural areas over the Green Energy Act. If Tim Hudak’s Conservatives were to win the next election, they are certainly no friends of the Endangered Species Act; what would happen to the Act and its regulations then? Not to mention environmental regulation as a whole?

Both lawsuits are honourable attempts by good people to do the right thing against long odds, and to stand against the long slide of environmental destruction. I admire them, and I support them. But would judges really make better decisions on these types of questions than governments?


  1. David Collier-Brown

    Judges are very good at making decisions about whether a law is being evaded or not, it’s one of their specialties (:-))

    It’s harder if the judge has to implicitly make public policy decisions. If there is purely factual material to consider, plus a law, it’s likely to be logically valid to carry out. If it’s a matter of rights, it’s very desirable that the courts carry it out. If it’s a values decision, between groups engaged in an active debate, its probably just a bad idea.

    In these cases, there are significant questions of right, and I would expect the courts to hold the government to its word.

    It’s up to citizens to ensure we elect governments who will not just change the law and declare we have no right to be heard. That way lies tyranny. And supreme court cases.