Vol. 14 No. 6 (June 2004), pp.384-388
UNNATURAL LAW: RETHINKING CANADIAN ENVIRONMENTAL LAW AND POLICY by David R. Boyd. Vancouver: UBC Press, 2004. 488pp. Cloth $CAD 85.00. ISBN: 0-77478-10483-3. Paper $CAD 29.95. ISBN: 0-7748-1049-1.
Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University. Email: email@example.com
Over the 2004 Memorial Day holiday, the eco-disaster flick, “The Day After Tomorrow,” packing the wallop of a Hollywood marketing tsunami, burst onto the screens of cineplexes around the world. In this movie, a climatologist tries but fails to convince political leaders of an imminent environmental apocalypse that will bring on a new Ice Age, the readily foreseeable consequence of not coming to grips with the greenhouse effect and global warming. At the risk of seeming to make a facetious comparison, the scope of David Boyd’s new book, UNNATURAL LAW: RETHINKING CANADIAN ENVIRONMENTAL LAW AND POLICY, is nearly as ambitious as the film, both have web pages (the book’s is www.unnaturallaw.com), and even though their plot lines and dramatic devices obviously differ both are ecological cris de coeur (although Boyd focuses on environmental quality, not the end of the world as we know it).
The film, whatever its entertainment value, sounds cinematic alarms about the environment but fails to tell us what we should do—something Boyd conscientiously follows through on. A lawyer and former executive director of Canada’s Sierra Legal Defence Fund, Boyd has argued cases before the country’s Supreme Court. He is associated with the University of Victoria's POLIS Project on Ecological Governance and is an adjunct professor in the Environmental Management program at Simon Fraser University. According to his thumbnail bio on the POLIS website, Boyd’s work focuses on incorporating ecological principles into legal and economic systems. His book clearly has its root in this work and shows its influence; it reflects as well Boyd’s particular style of environmental activism.
Boyd divides his book into three parts: examination, diagnosis, and prescription. His examination of laws or policies dealing with water, air, land, and biodiversity takes up slightly more than one-half the book’s pages. In this part, Boyd tells stories of partial successes but larger failures, of high hopes and false promises, of achievements matched by shortcomings, of moments of heightened political concern followed by periods of neglect and disinterest, and of the yawning gap between problems, proposals, and politics. Boyd’s transnational comparisons show that Canada does not rank especially high on environmental league tables, and he questions Canadian complacency. Readers unfamiliar with Canada’s environmental track record will find these narratives succinct and informative, albeit understandably lacking dramatic punch. These tales also prepare the empirical ground for Boyd’s [*385] diagnosis of the problems and for his prescriptions. His compilation of institutional remedies, like the arrival of the Ice Age in “The Day After Tomorrow,” would alter dramatically Canada’s political landscape.
By “unnatural law,” Boyd means to say that Canada’s laws are not consonant with the demands of an imperiled ecosystem. The country’s policies among other things are plagued by excessive discretion, the absence of needed national laws, ineffective or inadequate implementation, and lack of public participation. While he points to external influences as hindering or blocking improvements to these policies, Boyd emphasizes how Canada’s system of governance interferes with and impedes the construction of policies required to grapple with the ecosystem’s problems. Let me suggest at this point that it seems to me an underlying assumption of Boyd’s book is the view that environmental problems trump other policies or political priorities. Less obvious at first glance but equally telling for me is a second implicit assumption that political institutions are fungible or transportable and that, while resistant to change, they nevertheless remain malleable and adaptive for the purposes at hand.
What are the institutional obstacles to environmental progress in Canada? One barrier is Canada’s penchant for constitutional hand-wringing and wrangling over the relative powers of Ottawa and the provinces. Regardless of the intent of Canada’s Founders or text of the British North American Act of 1867 (now the Constitution Act of 1867), tradition, convention, and interpretation have intermingled to mold contemporary Canada into a highly decentralized federal system. Provincial powers, whether de jure or de facto, are very significant vis-à-vis the federal government in Ottawa. Environmental policy, not surprisingly, is haltingly and incompletely, but sometimes redundantly, pieced together into a patchwork with many missing pieces across Canada. Boyd feels debates over Ottawa’s authority are often sleights-of-hand used by federal officials to fob off their responsibilities in return for short-term political gains at the expense of the environment. A second obstacle, conversely, is the concentration of power in the federal and provincial governments.
Within Canada’s devolved federal system, federal and provincial governments resemble “friendly dictatorships” in political columnist Jeffrey Simpson’s rather infelicitous coinage. On the one hand, cabinets combine and mix executive and legislative power in Canada’s version of Westminster government. On the other hand, power has become concentrated in the offices of the Prime Minister or of provincial premiers. Ordinary members with environmental interests have few legislative venues to press their issue, as public access to key policy makers is limited. The courts in this scheme of things offer slim leverage to those hoping to roll back these obstacles to policy reform. Canada’s courts tend to defer to governments. Private litigation along the lines of the “private attorneys general” in the U.S. stumbles over government opposition or cooptation, despite the opportunities created by judicial rulings broadening “public interest standing.” Finally, the costs of litigation discourage the litigation option [*386] because of the “loser pays” rule. Thus, the circle is closed. Ideas, interests, and institutions mesh in ways that diminish environmental values and impede public efforts to promote them.
In somewhat antonymous fashion, Boyd flips these political facts-of-life into prescriptions for institutional change. The constitutional prerogatives of Ottawa should be recognized, affirmed, and enhanced; the provinces’ sails presumably would be trimmed accordingly. Legislative powers would be disentangled from the executive’s to allow Parliament to perform its oversight function more effectively; a reform, of course, that also entails weakening prime ministerial and cabinet clout over the government’s backbenchers. In a passing comment, Boyd laments Canada’s feeble Senate, a sinecure for aging party warhorses appointed by the Prime Minister who additionally holds sway over federal appointments, including justices and judges, with little (in most instances, no) consultation with Parliament. An invigorated Senate thus joins Boyd’s recommendations. The courts are added to the list though reforms lowering barriers to citizen-initiated litigation that would be bolstered by entrenching environmental rights in Canada’s Charter of Rights and Freedoms.
Boyd’s global re-think of Canada’s environmental policies comes at the price of not thinking locally enough. His prescriptions are squarely located at the point where regional cleavages (the “Alienated West”) intersect with the enduring struggle between Quebec and the Rest of Canada. One example is Senate reform. Boyd does not say whether he favors the “Three E” proposal of the former western-based Reform Party (later Canadian Alliance) in which the Senate would be elected, equal, and effective. If so, any serious push for it would prompt vociferous objections by Quebec separatists and “weak federalists,” which is probably why the new Conservative Party, hoping to regain a national majority in Parliament and formed around the nucleus of the Reform/Alliance Party along with tattered remnants of the old Progressive Conservative Party, has downplayed the issue. For the moment, let us assume the Senate became an important veto point in the Canadian legislative process. It is not obvious (at least to me) how this would boost the environmental cause, since, given the centrifugal character of Canadian politics, provincial interests likely would be strengthened in the Red Chamber and hobble national action, not enhance it. (The fact that all of the provinces have unicameral legislative bodies is ignored altogether, but this is a common omission in Canadian conversations about Senate reform.)
A second example is Boyd’s complaint about “harmonization agreements” between Ottawa and the provinces, especially with Quebec, which suggests he believes they are somehow are out of kilter with Canada’s natural political order. As their name implies, the idea behind harmonization agreements was to reduce overlapping federal and provincial laws in Canada’s haphazard environmental policy quilt. The history of these agreements is complicated and begins before the Liberal Party won government in 1993. Still, for Boyd, the key reality is that the Liberals used the agreements to relinquish federal authority and to download this [*387] responsibility to the provinces. Quebec’s obstinate, stand-offish attitude toward any proposal that either nipped at the edges of its power or failed to broaden it cannot be ignored, however. As Boyd writes, the agreements were the products of three convergent forces: “the possibility of Quebec separating, provincial pressure on the federal government to reduce its role in natural resources management, and the federal government’s efforts to reduce the deficit” (p.262). It is difficult to see how Boyd’s institutional prescriptions would be accepted under these conditions.
This, in a way, brings me to one of Boyd’s chief priorities—a constitutional amendment that would endow Canadian citizens with environmental rights. Such an amendment, he claims, would enshrine a fundamental value in the Constitution, give citizens an effective legal tool to advance new environmental policies, and a stick to prod into action governments that are reluctant or refuse to enforce existing laws. The question of whether these rights would work in this way is obviously a large one. For me, the prior and unexamined question is why Boyd thinks such an amendment would be adopted, given the history and politics of Canada’s mostly unsuccessful efforts to amend its Constitution in the past. One could begin with the contentious history of previous efforts to amend the Constitution before 1982 when the Charter of Rights and Freedoms was adopted, include the lessons of the politics behind the entrenchment of the Charter of Rights and Freedoms, and go on from there. Under the current amendment process, what chance of success would an environmental rights amendment with any teeth have of getting the support of Quebec and the western provinces? Indeed, how do any of these reforms reflect the realities of the Canadian political landscape? The prospects for success look bleak at best. For, if Canada’s environmental laws are “unnatural” in the sense meant by Boyd, how equally “unnatural” are his prescriptions for institutional reforms for the Canadian political environment?
The theoretical and empirical rope bridge reformers need to cross the political abyss that separates diagnosis from prescription is missing from Boyd’s book. If my examples seem unconvincing on this point, perhaps this one will clinch my argument. Most of the institutional reforms Boyd urges would make Canadian politics look more like American politics: a more centralized form of federalism, enhanced separation of powers, less dominant executives and cabinets, stronger and more independent legislative parties, an upper chamber with muscle, and a policy-oriented judiciary egged on by rights-empowered citizens. But—and this is a big but—the environmental standing of the United States is even worse than Canada’s compared to other nations, as Boyd shows. In a move that approaches a bait-and-switch, Boyd closes his book by turning his attention to Sweden and its environment-friendly, clearly superior practices. Sweden, however, is governed in such very different ways from the United States or Canada, it is hard to know where to begin. Perhaps the best way is simply to point out that, contrary to Boyd’s hopes for Canada, judicial activism is not a Swedish tradition (Board 1988, 1991, 2002). Moreover, studies of clean air (Lundqvist 1980) and energy (Sahr 1985) politics in Sweden show that its [*388] courts are bit players in the policy process compared to the United States. Rights-bearing citizens active in litigation politics do not explain Sweden’s environmental policies. How does the Swedish experience square with Boyd’s wish for a constitutional amendment enshrining environmental rights for Canadians who are then suppose to use them in aggressive legal campaigns aimed at reforming the country’s policies?
Canadians, nevertheless, Boyd insists, are at a fork in the road. They can take the path traveled by the Americans, which leads to a dead-end (no pun necessarily intended), or they can take the road paved by the Swedes toward self-sustaining, prudential policies that make a difference. A very curious disjuncture in Boyd’s argument should be apparent by now. If institutions matter in law and policy, then, how do Boyd’s prescriptions, if Canadians followed them, improve the odds that Canadians will imitate the Swedes and not the Americans? If, however, because of culture, history, or some other factor, institutions matter little in shaping the policy decisions of nations, why worry about reforming them?
Board, Joseph. 2002. “Sweden.” In LEGAL SYSTEMS OF THE WORLD. Herbert M. Kritzer (ed.). Santa Barbara CA: ABC Clio.
Board, Joseph. 1991. “Judicial Activism in Sweden.” In JUDICIAL ACTIVISM IN COMPARATIVE PERSPECTIVE. Kenneth M. Holland (ed.). New York: St. Martin’s Press.
Board, Joseph. 1988. “The Courts in Sweden.” In THE POLITICAL ROLE OF LAW COURTS IN MODERN DEMOCRACIES. Jerold L. Waltman and Kenneth M. Holland (eds.). London: Macmillan Press.
Lundqvist, Lennart J. 1980. THE HARE AND THE TORTOISE: CLEAN AIR POLICIES IN THE UNITED STATES AND SWEDEN. Ann Arbor: University of Michigan Press.
Sahr, Robert C. 1985. THE POLITICS OF ENERGY POLICY CHANGE IN SWEDEN. Ann Arbor: University of Michigan Press.
Copyright 2004 by the author, Roy B. Flemming.