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Environmental impact assessment : a comparative study of the effect of federal institutional arrangements… McCallum, Sandra Kathleen 1974

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ENVIRONMENTAL IMPACT ASSESSMENT A comparative study of the e f fect of federal i n s t i t u t i o n a l arrangements u environmental impact assessment procedures in Canada and the United State by SANDRA KATHLEEN McCALLUM B. J u r i s , L L . B . , Monash Univers i ty A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in the Faculty of Law We accept th is thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA August, 1974. In presenting th i s thes is in p a r t i a l fu l f i lment of the requirements for an advanced degree at the Univers i ty of B r i t i s h Columbia, I agree that the L ibrary shal l make it f ree l y ava i lab le for reference and study. I fur ther agree that permission for extensive copying of th is thesis for scho la r l y purposes may be granted by the Head of my Department or by his representat ives . It is understood that copying or pub l i ca t ion of th is thes is for f i nanc ia l gain sha l l not be allowed without my wr i t ten permission. Department of The Univers i ty of B r i t i s h Columbia Vancouver 8, Canada , i i ABSTRACT This paper examines the ef fect of i n s t i t u t i o n a l arrangements upon environmental impact assessment procedures. The short introduct ion discusses the need for a planning tool in the nature of an environmental impact assessment which focuses upon environmental considerations at the e a r l i e s t stage of the decis ion process. Chapter I analyses some of the procedures suggested for implementing an assessment procedure h igh l ight ing the strengths and weaknesses of each. It i s recognized that because many questions of soc ia l choice are involved the need fo r a broadened decision base incorporating publ ic input into each stage of the process i s des i rable . The basic problem of any procedure i s i d e n t i f i e d as one of e n f o r c e a b i l i t y . Chapter II examines the Canadian proposal which was announced in the House of Commons ear ly in 1974. The weaknesses of the proposal are discussed within the context of the p o l i t i c a l system. Chapter III discusses the impact of the National Environmental Po l i cy Act in the United States . Much of the success of th i s l e g i s l a t i o n i s at t r ibuted to the role of the courts as enforcers of the l e g i s l a t i o n and c l a r i f i c a t i o n of the goals of Congress. Chapter IV discusses the di f ferences between the Canadian and United States governmental structure which make the wholesale t ransfer of i i i l e g i s l a t i o n in the form of the United States Act inappropriate. The procedural and doctr inal d i s t i n c t i o n s are discussed. F i n a l l y the issues which a Canadian l e g i s l a t u r e w i l l need to address in order to implement l e g i s l a t i o n which w i l l be as e f fec t i ve as the United States model are i d e n t i f i e d . i v • TABLE OF CONTENTS PAGE INTRODUCTION . . . ' 1 CHAPTER I. ENVIRONMENTAL IMPACT PROCEDURES. 5 A. Publ ic P a r t i c i p a t i o n 5 B. When Assessment i s Required 7 (a) the proponent 8 (b) government minist ry 9 (c) an independent screening board 9 C. The Preparer and the Contents 13 (a) Department of the Environment 14 (b) A New Agency 14 (c) Indiv idual Departments 14 (d) Or ig inator or Proponent 15 D. The Nature of the Review Process 18 CHAPTER I I . THE CANADIAN PROPOSAL 22 A. Background • 22 B. The Framework For Decision 26 C. The Nature of Federal Decision Making 34 D. Environmental Po l icy Within The Context of Canadian Federal P o l i t i c s . 40 E. The L i k e l y Impact of the Review Procedure 46 ' CHAPTER I I I . THE NATIONAL ENVIRONMENTAL POLICY ACT 50 A. The Background 50 B. NEPA: Its Provisions 52 C. The Role of the Jud ic ia ry 57 D. The Role of the C i t i z e n 61 V PAGE E. The Council on Environmental Quality 64 F. The Federal Agencies 67 G. NEPA to Date - Problems and Prospects 70 CHAPTER IV. ENVIRONMENTAL ASSESSMENT . . .• 77 A. Introduction 77 B. The Procedural Problems 77 C. The Doctrinal Issues 86 D. The Problems Defined 94 BIBLIOGRAPHY 9 8 INTRODUCTION During the l a s t century man's a c t i v i t y on the earth 's surface has enormously i n t e n s i f i e d . If one views the momentum of a c t i v i t y over the l a s t century against the perspective of the preceding centuries i t i s obvious that exp lo i ta t ion and use of the natural resources has accelerated and the potent ia l fo r a l t e r i n g the environment in a short period i s now staggering. Together with the increased a c t i v i t y has evolved a greater knowledge of the physical surrounds. This knowledge has brought many to question the l i m i t s of the e l a s t i c i t y of our ecosystem to to lerate unchecked growth . and unplanned developments. The increase in knowledge about the envi ron-ment in which we operate has resulted in a growing awareness that most elements of the ecosystem are in te r re la ted so that one seemingly innocuous a c t i v i t y may set of f various side e f fec ts with detrimental consequences. During the l a s t decade, in response to demands to control the way in which resources are u t i l i z e d , the governments (both federal and p rov inc ia l ) have enacted l e g i s l a t i o n aimed at abatement and restorat ive measures.^ The r e a l i z a t i o n of the in te r re la ted aspects of a c t i v i t i e s has h igh -l ighted the need for a more comprehensive consideration of environmental 1 There are many federal and prov inc ia l statutes dealing with regulat ion of natural resources; e .g . Clean Air Act, S.C. 1971, c. 47, Water Act, R.S.B.C . 1960, c. 405. P a r i s i e n , R. and Reuben, F. in t h e i r report Evaluation of Environmental Pre-assessment of Existing Federal Legisla-tion, Environment Canada 1972, l i s t 37 federal statutes deal ing in some way with regulat ion of the environment. - 2 -consequences of actions at the e a r l i e s t possible stage of decis ion making processes. From these r e a l i z a t i o n s has developed a planning tool by the t i t l e of environmental impact assessment. I t has been said that the assessment pro-cedure i s the next step in the evolutionary process from abatement and res to ra t i ve measures to preventative ones. I t i s the b e l i e f of proponents of impact assessment that increased before the fact inves t igat ion w i l l sub-s t a n t i a l l y diminish the need for abatement and restorat ive measures by b r ing -ing an ear ly awareness from an environmental view point which has h i ther to been ignored. The purpose of th is new planning tool i s to attempt an integrated con-s iderat ion of the consequences of actions at the e a r l i e s t possible stage of planning in order to e luc idate the consequences of a p a r t i c u l a r a c t i v i t y while options are s t i l l open to reconsider the d e s i r a b i l i t y of the act ion or the d e s i r a b i l i t y of the mode of operation before i r r e t r i e v a b l e commitment i s made. In the past natural resources have been regulated by various government agencies whose mandate i s r e s t r i c t e d to a pa r t i cu la r resource. The new process demands a h o l i s t i c approach which acknowledges the i n t e r r e l a t e d nature of a c t i v i t i e s . I t therefore w i l l traverse t r a d i t i o n a l departmental boundaries and require greater cooperation among departments. 2 Min is t ry of the Environment (Ontar io) , Green Paver on Environmental Assessment, September 1973, 3. - 3 -The interrelatedness of a c t i v i t i e s has a lso led to a much wider d e f i n i -t i on of environmental impact than one which describes physical features and impacts upon them. Generally when the term i s used i t i s in the sense of the human environment and covers a wide range of soc ia l and economic . 3 i ssues . Because the term has developed into such a comprehensive one many of the issues which any proposed procedure i s designed to deal with w i l l be involved with questions of soc ia l choice and the making of value judgments which a f fec t diverse in te res t groups. The breadth of the issues and the d i f f i c u l t y inherent in resolv ing them has led to the b e l i e f that any pro -cedure must provide opportunity for publ ic input to the decis ion making process. There have been many proposals put forward for environmental impact assessment procedures and these w i l l be discussed i n Chapter I. Although there are numerous a l te rnat i ve procedures which could be implemented i t i s c lear that common to a l l i s the need fo r publ ic involvement in the process and a means for ensuring that the procedures are adhered to by those respons-i b l e fo r implementing them. In dealing with proposals for implementing procedures i t i s therefore of v i t a l importance to give careful consideration to the means which w i l l The National Environmental Po l i cy Act of the United States use the term "human environment". The Green Paper, op. cit., recognizes "that env i -ronmental concerns are interconnected often causal ly with concerns and decisions in the economic and soc ia l system." , p. 6 . - 4 -be available to enforce compliance with the procedure. The inst i tut ional arrangements available for implementing the procedure wil l have a substan-t i a l influence on i ts effectiveness. In choosing a procedure the potential of the inst i tut ional framework in which i t wil l operate, to frustrate or to expedite the purpose, should be a major concern in choosing between modes of procedure. An analysis of the governmental structure in which the policy is to operate is part of this paper. - 5 -CHAPTER I. ENVIRONMENTAL IMPACT PROCEDURES The procedure i s designed to regulate decis ion making processes in order to provide a framework in which environmental matters may be cons id -ered at the e a r l i e s t possible stage of the planning process so that the trade of fs made, i f a decis ion to proceed is taken, w i l l be c l e a r l y seen and weighed against the t r a d i t i o n a l concerns of economics and technology. The decision making process can be divided into three stages: f i r s t l y the threshold question of when an impact assessment i s requi red ; secondly who should prepare i t and i n what manner; t h i r d l y who should review the adequacy of the assessment. At each stage of the process i t has been recognized that there i s a need to give the publ ic an opportunity to par-t i c i p a t e in the process. A. PUBLIC PARTICIPATION The fo l lowing purposes for encouraging publ ic p a r t i c i p a t i o n in an assessment procedure were i d e n t i f i e d by the Federal Task Force appointed by the Department of Environment to study environmental impact po l i cy and procedure as fo l lows : ( 1 ) Interests that are l i k e l y to be affected by environmental impacts of ac t ions , but that are un l ike l y to be represented in the assessments and decis ion process are provided with an opportunity to p a r t i c i p a t e . This i s consistent with the democratic objective of an increased c i t i -zen ro le i n publ ic decis ion making and with the idea that every ind iv idua l - 6 -has a "right" to a healthy and attractive natural environment. (2) The decision-maker i s provided with additional information. This information i s especially relevant and useful when values are involved that are not readily quantified so that the decisions to be made are ess e n t i a l l y value judgments. (3) Greater accountability i s fostered i n p o l i t i c a l and administrative decision-makers. Decisions (and therefore r e s p o n s i b i l i t y ) may tend to be forced higher i n the policy decision hierarchy scrutiny through pub-l i c p a r t i c i p a t i o n . Scrutiny through public p a r t i c i p a t i o n also helps ensure that required procedures are followed by decision-makers. (4) Members of the public are given some assurance that a l l relevant issues have been considered as thoroughly as reason and good sense require. Therefore public confidence i n the decision-maker or reviewer and his p o l i c i e s i s enhanced.^ There are various means of involving the public i n an assessment pro-cess. The public hearing i s a well-known device but not the only one. One writer has i d e n t i f i e d other devices as including perception and attitude surveys, written representations, on-the-spot community monitoring and 2 "independent" advisory bodies. It i s apparent that f l e x i b i l i t y of p a r t i c i -patory procedures may be necessary to f u l f i l l the diverse needs of various 1 Environment Canada, Task Force on Environmental Impact Policy and Procedure, August, 1972. 2 Lucas, A.R., "Environment Impact Assessment: Legal Perspective" i n Proceedings of National Conference on Environmental Impact Assessment: Philosophy and Methods, Agassiz Centre for Water Studies, Manitoba, November, 1973, 46. - 7 -assessments and one method may not serve a l l purposes. It i s however neces-sary that some form of publ ic input should be a mandatory requirement and the mode of that input be t a i l o r e d to d i f f e r i n g circumstances. [P]ubl ic p a r t i c i p a t i o n i s an a l te rnat i ve to legal act ions f o r ensuring that publ ic o f f i c i a l s charged with the administrat ion of the environmental impact assessment process fo l low the proper procedure in a l l cases.3 For th i s reason the requirement f o r publ ic p a r t i c i p a t i o n should be mandatory although the actual mode may vary i n d i f fe ren t s i tua t ions to ensure that the most appropriate means i s employed. B. WHEN AN ASSESSMENT IS REQUIRED It i s a r e l a t i v e l y straightforward task to i d e n t i f y those kinds of projects which t y p i c a l l y have p o t e n t i a l l y s i g n i f i c a n t environmental e f fects and therefore require an Environmental Assessment document. S i m i l a r l y there i s no great d i f f i c u l t y in developing a categor izat ion of kinds of undertakings which have no p o t e n t i a l l y s i g -n i f i c a n t impact and thus should be exempted from the environmental assessment requirement. However, betv/een these extremes there i s a large gray area comprised of projects which have s i g n i f i c a n t impact in some circum-stances and not in others.4 As i t i s not possible to categorize the actions which w i l l require an assessment an element of d i sc re t ion i s necessary. I t i s always desi rable 5 that a d iscret ionary element i s l imi ted as much as possible by at least 3 Ibid.,43. 4 Green Paper, op. cit., 10. 5 The problems associated with uncontrolled d iscret ions are explored by Davis, K.G. , Discretionary Justice: A Preliminary Study, Louisiana State Univers i ty Press , 1969. - 8 -del ineat ing the areas where an assessment w i l l always be required. It i s suggested that such an area could be any project which w i l l have obvious physical e f f e c t s , e .g . a dam, a highway, a factory . Such projects w i l l have what have been ca l led primary e f f e c t s , i . e . physical impacts. The more d i f f i c u l t decisions involve secondary ef fects which may not r e s u l t from the s p e c i f i c project i t s e l f but be consequent upon i t . Examples of t h i s type may be a decis ion to require returnable bott les which may r e s u l t i n decrease in bot t le manufacture and increase in t i n cans. This l a t t e r type which produces secondary impacts not obviously connected with the actual act ion w i l l often be connected with p o l i c i e s , l e g i s l a t i o n and actions rather than with physical projects or developments. There i s a need for some type of screening mechanism. I t has been sugges-ted that there are three p o s s i b i l i t i e s : ^ (a) the proponent Under the National Environmental Po l icy Act in the United States the r e s p o n s i b i l i t y i s upon the proponent of an act ion to decide whether or not the impact of a proposal w i l l have s i g n i f i c a n t environment impact. I t has been noted that the experience to date with th i s approach indicates that publ ic disagreement with the decisions of o r ig ina t ing organizations has given r i s e to a large number of lengthy and expensive cases.7 This i l l u s t r a t e s the resu l t of mixing the s c i e n t i f i c and soc ia l i ssues . 6 . Green Paper, op.cit., 11. 7. Loc. cit. - 9 -When a proponent decides whether the impact is signif icant he is making a value judgment. It is suggested that the proponent should identify the impact and a wider body should evaluate the "signif icant" factor. (b) government ministry A government agency could delineate projects through regulations or by review of each project. This shifts the decision factor from the proponent to the government agency. The agency must decide two things, what is the impact and is i t s igni f icant . This ensures that questions of social choice arise in the government c i r c l e . These issues can be given a broader basis depending on the procedural requirements adopted by the department, i . e . whether other agencies and the public are involved or not. (c) an independent screening board As many projects and policies may emanate from government departments i t has been suggested that i t should be open to concerned cit izens and groups to invoke a procedure that would require the Review Board to determine in public whether an environmental assessment document is required, when the exemption of a project from compliance is contemplated by either a project proponent or the screening body. ° It is suggested that (b) and (c) are preferable to (a) as they both entail an element of objectivity and disinterest not possible in (a). Nonetheless there is s t i l l inherent in (b) and (c) the poss ib i l i ty that proposals w i l l be presented in such fragmented form that no impact w i l l be evident, e.g. a ten mile stretch of highway which in fact is part of a much 8. Canadian Environmental Law Association, Principles of Environmental Impact Assessment, Ontario, October, 1973, 17. bigger proposal. I t i s necessary therefore to have a procedure which w i l l ensure that s p e c i f i c proposals are not only viewed for environmental conse-quences but also viewed wi th in the broad framework of which they are a par t . This problem brings into focus the need to review the po l i cy proposals rather than merely s p e c i f i c act ions . At the po l icy stage there are more a l ternat ives open for consideration than when a po l icy has been determined and s p e c i f i c projects wi th in that po l icy are implemented. I f one considers the question of impact at the po l icy stage rather than at the more s p e c i f i c project stage the tool i s being used to i t s f u l l p o t e n t i a l . One wr i te r has suggested that "the ent i re subject of environmental impact assessment in advance of proposed projects i s fa r less important in decis ion making than the publ ic has been led to b e l i e v e . " The important word he uses i s 'p ro jects ' fo r i t i s suggested that s l i g h t l y d i f fe ren t considerations are involved with pro-jects than with proposals and p o l i c i e s . By the time a proposal or po l i cy has reached the stage of implementation through a project many of the a l t e r -natives have been forec losed. It i s important therefore to d i s t ingu ish between these stages of decis ion making. On the one hand there i s the broad po l icy and at t h i s stage the proponent s i f t s through various means of implementing the p o l i c y ; when a means of implementation has been selected th is i s the project stage; when t h i s stage has been reached many a l te rnat i ves have been discarded and the ambit fo r assessment is considerably narrowed to a choice of the least detrimental course or design. I f assessment i s invoked 9 Peterson, E .B . , "Environmental Considerations in Northern Resource Development", Centre for Continuing Education, Univers i ty of B r i t i s h Columbia, March, 1973, 2. - n -at the e a r l i e r planning stage then the focus i s not upon one p a r t i c u l a r project but several project a l te rnat ives capable of achieving a desired goal . It must be r e a l i z e d that from the date of government adoption of an assessment process several years w i l l elapse before i t s f u l l potent ia l can be u t i l i z e d . This i s because of the substant ial lead time which elapses from po l i cy proposal to commencement of project development^ which w i l l resu l t i n many proposals being already underway to an extent where substant ia l a l t e r a t i o n i s forec losed. In the ear ly stages a f te r a procedure i s adopted i t w i l l be used in many cases where a l ternat ives have already been fo re -closed and the only issues which can be influenced w i l l a f f e c t design modi-f i c a t i o n s or a l t e r a t i o n s . There are many examples in the United States where assessments have become mandatory several years a f te r planning had been i n i t i a t e d . ^ The problems during the t rans i t ionary period have been substant ia l i n the United States and indicate that there are many considera-t ions which are more eas i l y dealt with at the po l icy stage and become 12 extremely d i f f i c u l t to assess once the project has been agreed upon. The United States experience provides an excel lent example of the need f o r varying 10 It has been estimated that th i s time lapse could be at l eas t ten years i n some instances, see Kess ler , J . J . , "The Federal Highway Administ ra -t i o n " in Ditton and Goodale (Eds. ) , Environmental Impact Analysis: Philosophy and Methods, Univers i ty of Wisconsin, 1972, 47. 11 This point i s discussed by Lawyer, D.E. , "The U.S. Army Corps of Engin-eers" in Ditton and Goodale, ibid, 55. 12 The problems encountered in the United States s i t u a t i o n are f u l l y d i s -cussed by Anderson, F .R. , NEPA in the Courts: a legal analysis of the National Environmental Policy Act, John Hopkins Press , 1973, Chapter V. - 12 -procedures to deal with f i r s t l y , broad po l icy questions at an ear ly stage and secondly more s p e c i f i c procedures to assess ind iv idual projects once a project has been assessed as the most preferable of a l te rnat ives for act ion . I t has been suggested that the government should es tab l i sh an independ-ent screening board with the power to demand assessments and publ ic hearings 13 where i t deems appropriate. An independent screening board appears preferable to u t i l i z a t i o n of a government department which has a l i m i t e d area of in terest and j u r i s d i c t i o n and i s subject to departmental pressures and bias where i t s own projects are involved. I f the pol icy i s to r e a l i z e i t s f u l l potential then there should be provis ion for publ ic input at t h i s stage where the board decides that an assessment i s not necessary. As t h i s decis ion i s a value judgment i t s e f f i cacy should be scrut in i zed by the broadest spectrum of opin ion. A decis ion, to require assessment w i l l enable publ ic input at the review stage but a decis ion to by-pass assessment w i l l foreclose further input unless i t i s guaranteed at th i s juncture. Possibly a two stage process may evolve where the i n i t i a l assessment can cover a wider spectrum of issues before a po l icy i s committed to the project stage. Whatever procedure i s adopted the need fo r a public voice i n the de te r -mination of whether a proposal i s one of such s ign i f i cance that an assessment 13 Environment Protect ion Board, Proceedings: Workshop on the Philosophy of Environmental Impact Assessment in Canada, Winnipeg, October, 1973, 51 . - 13 -i s necessary i s very apparent. C. THE PREPARER AND THE CONTENTS It has been suggested that there are f i v e opinions ava i lab le concerning 14 the question of who should be responsible for preparing the assessment. The f i r s t a l t e r n a t i v e proposed in the "Green Paper" discusses the p o s s i b i l i t y of u t i l i z i n g the services of independent consultants . The advantages inherent in- the use of consultants are severa l . F i r s t l y the consultant i s not committed to proceeding with a p a r t i c u l a r project and therefore should have no p a r t i c u l a r bias in favour of proceeding which would unduly s lant his perspect ive. Secondly the employment of independent experts may provide an outside input which could produce innovative approaches. Th i rd ly ind iv idual proponents and government agencies would not be faced with the enormous overheads connected with expanding s t a f f s neces-sary to deal with an i n t e r d i s c i p l i n a r y assessment. The disadvantages tend to counterbalance the advantages. F i r s t l y i t could be that consultants w i l l wish to r e f l e c t the bias of t h e i r employer for fear of los ing the contract . Secondly the existence of numerous consu l t -ing f irms would resu l t in implementation of as many methodologies. Th i rd ly the employment of outside consultants would i s o l a t e the environmental cons id -erations from the other aspects of the planning process. 14. Green Paper, op. cit. , 18ff . - 14 -It would seem l i k e l y that as applied environmental science becomes more establ ished consultants w i l l be used to some degree no matter which of the a l ternat ives i s chosen. It w i l l therefore be assumed that there are r e a l l y only four a l te rnat ives and whichever of these i s chosen the l ikelyhood of some independent consultant input in the assessment process w i l l be taken for granted. The degree of input w i l l depend on both the nature of the proposal and the resources of the preparer to research i t . (a) Department of the Environment If the Department prepared the assessments there would be consistency in methodology and the expert ise would tend to be centra l i zed wi th in one government department, preventing dupl icat ion of s k i l l s in other departments. This option s t i l l has the disadvantage of removing the assessment requirement from the other planning stages so that the environmental considerations remain outside the contemplation of the proponent. (b) A New Agency I t has been suggested that a new agency could v i t i a t e the tendency of the Department of the Environment to be biased against any development projects because of i t s c o n f l i c t i n g ro le in r e l a t i o n to them. The e s t a b l i s h -ment of a new agency for t h i s purpose would fur ther fragment the responsi -b i l i t y of government fo r environmental protect ion and there may be c o n f l i c t s with ex i s t ing dupl icat ion of expert personnel. (c) Individual Departments This option contemplates that any department which required an approval for a project or project stage would prepare an assessment before granting the necessary approval. This option places a heavy demand on ex i s t ing - 1 5 -departments and requires that they widen the i r perspectives i f they are to produce a sa t i s fac to ry integrated approach. Most statutes do not presently enable departments to consider a l l that would be required of them. It would 15 seem therefore that statutory amendment would be e s s e n t i a l . Often permits or approvals are granted la te in the planning process and t h i s would not 1 g enable the early consideration contemplated to be undertaken. This option would a lso tend to fragment any assessment and could resu l t in c o n f l i c t i n g at t i tudes in d i f fe rent departments. Some provision for co -ord inat ion of departmental permits and approvals would seem necessary, (d) Or iginator or Proponent Where the proponent i s required to prepare the assessment the most s i g n i f i c a n t benefit would seem to be that i t forces him to d i r e c t his a t ten -t ion to environmental matters and as he is in the best pos i t ion to inf luence the decision-making a newly acquired environmental awareness could be very s i g n i f i c a n t . In the United States the federal agency i s responsible fo r the assessment and i t has been found that "where agencies have hired new personnel with new s p e c i a l i t i e s , t h e i r presence has been l i k e a f resh breeze down must bureaucratic c o r r i d o r s . " ^ This i s an important p o s i t i v e element fo r not only does i t promote a development of environmental expert ise wi th in an agency but i t tends to create a new i n s t i t u t i o n a l viewpoint which i s 15. Par is ien and Reuben, op.cit. , discuss th i s issue. 16. This i s i l l u s t r a t e d by the Utah Mines controversy which i s analysed by Lucas, A.R. and Moore, P.A. in "The Utah Controversy: a case study in Publ ic P a r t i c i p a t i o n in Po l lu t ion Cont ro l , " (1973) 13 Natural Resources Journal 36. 17. Lake, W.T., "The National Environmental Pol icy Act" in Environment Protect ion Board: Proceedings, op. cit., 22. 16 -necessar i ly more sympathetic to environmental concerns. The broadened agency focus w i l l be an inev i tab le resu l t of u t i l i z i n g an i n t e r d i s c i p l i n a r y approach. One d i f f i c u l t y of requir ing a proponent to prepare the assessment i s that ind iv idua l departments are set up with cer ta in ob ject ives . I t would seem an almost impossible requirement to ask that these agencies question the very premise on which they e x i s t , e . g . i t would seem natural f o r Hydro to assume that i t needed to meet the demand for power. Whether one should curb the demand i s probably outside the a b i l i t y of those involved to adjudge. The careful development of procedures for the guidance of agencies in the preparation of the i r assessments could probably overcome th is d i f f i c u l t y by i n s i s t i n g upon input of those outside the agency on th is type of i ssue . The other d i f f i c u l t y with t h i s option i s whether i t should apply a l i k e to publ ic and pr ivate sectors . One wr i te r has suggested that the procedures and methodology that are to be developed for preparing environmental impact assessments for publ ic undertakings may be inappropriate to the pr i vate s e c t o r . ^ Whereas i t may be considered benef ic ia l to require government depart -ments to increase the i r s t a f f s to provide an i n t e r d i s c i p l i n a r y team to con-s ider the i ssues , i t may be impract ical to expect the same of small businesses accustomed to h i r i n g independent consultants to determine questions of economics and technology. 18. P a a v i l a , H.D., "Environmental Impact Assessment: Industr ia l Perspect ive" in Natio-al Conference Proceedings, op. cit., 56. - 17 -It may also be benef ic ia l to vary the ro le of government departments depending on whether they are the sole proponents or regu lators ; a d i f f e r e n t format may be appropriate where several departments are involved. There would seem to be no d e f i n i t i v e answer to the question of who should prepare the assessment which would be appropriate in every case. As noted e a r l i e r d i f f e r e n t procedures may be necessary depending on whether the proposal emanates from the publ ic or pr ivate sector . It would therefore seem desi rable to formal ize procedures with s u f f i c i e n t f l e x i b i l i t y to ensure that the person or body most able in the circumstances car r ies the r e s p o n s i b i l i t y fo r the assessment. The data which should be contained in an assessment document has been 19 the subject of much l i t e r a t u r e . This i s an important issue because i t would seem c lear that there is a need for deta i led information to aid whoever prepares the assessment. The i n i t i a l question of what should be evaluated in the assessment requires some decis ion to be made on what i s important or s i g n i f i c a n t . The answer to th is may vary depending on the perception of the person asking the quest ion. The need fo r deta i led information to a s s i s t the person preparing the study i s obvious. The development of such information w i l l depend on which body is given the task of deciding when an assessment is required. There may be circumstances 19. L i te ra ture inc ludes: Leopold et al.-, "A Procedure fo r Evaluating Env i -ronmental Impact", Geological Survey Circular 645, Washington, 1971; Sorensen, Jens, Proposed Guidelines for the Preparation and. Evaluation of Environmental Impact Statements Under the California Environmental Quality Act of 1970, Sec. for Resources, Scaramento, 1971; Environmental Control M in is t r y N.S.W., Guidelines for Application of Environmental Impact Policy in New South Wales, 1973. - 1 8 -when various departments may wish to develop the information and re la te i t to s p e c i f i c p ro jects . In preparing the assessment i t must be decided whether the assessment should be directed to the s c i e n t i f i c community, a reviewing body or the general publ ic as each of these groups has an in terest in the data of the assessment. The most useful assessment w i l l provide the s c i e n t i f i c reports and ca lcu la t ions on which the data i s based and i d e n t i f y the assumptions made and the personnel responsible . Conclusions w i l l be in a summary form understandable by the layman so that he can evaluate the trade o f fs to be made between the proposal and i t s a l te rna t i ves . D. THE NATURE OF THE REVIEW PROCESS It i s necessary f i r s t to estab l ish the purpose of the review process. A d i s t i n c t i o n must be drawn between a review process which establ ishes whether the assessment is adequate, i . e . whether procedural guidel ines have been adhered t o , and a review process which evaluates whether the net bene-f i t s of any project outweigh the net costs and whether the environmental ef fects r e f l e c t the least harmful trade offs poss ib le . The review process can serve both functions or one only . I t can provide a means for evaluation of the arguments or a weighing of values and i t can test adherence to procedural requirements. The l a t t e r funct ion presup-poses published gu ide l ines ; i t i s a checking process to ensure that the guidel ines have been adhered t o , that the f u l l e s t inventory has been made - 19 -and the most thorough consideration of effects has been explored. If the procedure adopted for preparing the assessment has given every opportunity for the airing of confl ict ing views and for the f u l l considera-tion of a l l consequences of a proposal i t would seem necessary that the review stage should be concerned only with the question of whether the procedural requirements have been met. Thus the review process would give an opportunity to any interested person to allege that the assessment was not adequate because i t had omitted some step which was required. This challenge may arise before an independent board or a court. There would appear to be opportunity for review by various departments also because i t is d i f f i c u l t to imagine a project which could proceed without some departmental permit or approval. As mentioned previously, the permit approval state is at present late in the planning stage. Consideration could be given to changing this timing by statute and also to amending statutory powers to require departments to review environmental matters either on their own or in conjunction with other departments as a condition precedent to issuing permits and approvals. The purpose of the assessment process is to improve decision making. Thus the process should ensure that decisions cannot be made without due consideration of environmental matters. In the United States the ultimate decision of whether to proceed or not is le f t with the proponent of the action. There is no legal requirement to - 2 0 -force him to weigh his decis ion against the facts of the assessment . Any coersion i s external to him and may mater ia l i ze in the form of permit r e f u -s a l s ; i f he can obtain his permits then although more desi rable a l te rnat i ves may have been demonstrated he is not required to act on them. The only recourse i s through the courts where his actions may be delayed or a l tered not because he f a i l e d to act on his evaluation but because his evaluation was not adequate. The goal of the United States l e g i s l a t i o n i s to improve the decis ion process by requir ing assessment but i t does not go the fur ther step of seeking a method of d i c t a t i n g the correct dec is ion . It i s suggested that t h i s i s the preferable approach. The previous discussion i l l u s t r a t e s that there are many procedures which could be u t i l -ized and i t may be necessary to develop d i f fe rent procedures for d i f f e r e n t circumstances. Whatever procedures are adopted they should f i r s t l y provide the opportunity to the publ ic to partake in each of the decis ion stages. Secondly, they should require the publ icat ion of regulations or guidel ines which must be followed and t h i r d l y they should provide the means whereby any interested person can challenge an assessment on the ground that the procedure has not been fol lowed. The United States experience, which w i l l be discussed in Chapter I I I , bears witness to the fact that much of the success of any assessment procedure i s large ly dependent upon a means to enforce compliance. I t i s not s u f f i c i e n t merely to announce a procedure without providing any enforcement mechanism as Chapter II which analyses the Canadian federal proposal w i l l revea l . - 21 -In adopting a procedure i t i s therefore important to d i rec t at tent ion to the means which can be u t i l i z e d to enforce compliance with the procedure. Much attent ion has been given to the enforcement mechanisms of the courts in the United States . The parliamentary system rests on p r i n c i p l e s d i f fe rent in nature from the Congressional system. It i s l i k e l y therefore that solut ions to the problems of enforcement found successful in the United States may not necessar i ly be appropriate to the Parlimentary system. These issues are the subject of Chapter IV. - 22 -CHAPTER I I . THE CANADIAN PROPOSAL A. BACKGROUND The federal government has not been unaware of the potent ia l of an environmental impact assessment procedure. Impact assessment was one of the s i x goals stated as departmental objectives when Environment Canada was establ ished in 1971^ and in March 1972 a cross mission task force was estab-l i shed wi th in the Department of the Environment to report to the management committee on environmental impact assessment with a view to placing a pro-2 posal before Federal Cabinet to launch an inter im phase. During i t s f i v e month existence the Task Force spent one month as an information gathering period during which discussions were held with e n v i -ronmental author i t ies in the United Kingdom, Hol land, the U .S .A . , the Pro-v inces , and in other federal government departments. In the U.S.A. the Task Force consulted with the Council on Environmental Qua l i t y , the Env i -ronment Protect ion Agency, Committee s t a f f s of the House of Representatives and the Senate, L ibrary of Congress Environmental Po l i cy D i v i s i o n , legal counsel fo r c i t i z e n s ' groups, the Army Corps of Engineers, the Bureau of Reclamation and others . Po l i cy formulation was i n i t i a t e d at a two day work-shop in May. This phase continued through June with inputs from two consul -tants . Procedure development took place from June to August with inputs 1 Environment Canada: Its organization and objectives, Information Canada, Ottawa, 1971. 2 Management Committee, Environment Canada, memorandum February 18, 1972. - 23 -from consultants on the technology of environmental impact assessment and 3 in procedure simulation exercises held at department headquarters. The f ina l report is in the form of a specif ic proposal for adopting a procedure. The basic features of the proposal were that the proponent would be responsible for preparation of the environmental impact assessment on the basis of guidelines provided by a newly established and independent Environment Review Board. The Review Board v/ould administer the procedure and make recommendations, but not render decisions on proposed actions. The Board's role would also be to ensure that statements were made public and that the public have the opportunity to part icipate. The need for the Board to be independent, disinterested and f lex ib le was stressed. It was envisaged that the procedure would be a two stage process. A preliminary screening one which could indicate that there would be no s igni f icant impact and a more detailed procedure for actions where i t appeared a s igni f icant impact may result . The proposal of the Task Force viewed against the c r i t e r i a set forth in Chapter I f u l f i l l s the requirements desired. It separates the three decision stages in that the independent Review Board decides the significance of the action and the adequacy of the assessment but i t leaves to the pro-ponent the f inal decision of whether to proceed or not. It del iniates the technical from the value judgments by widening the decision base where the values are placed, by introducing public input by publishing the decision 3 Task Force on Environmental Impact Policy and Procedure, Final Report, Environment Canada, August 30, 1972. - 24 -not to prepare statements and by inc luding the public in the review pro -cess. I t can be said in terms of es tab l i sh ing a c r i t e r i a for environmental impact assessment the Task Force proposal represents good po l icy in that i t r e f l e c t s the considerations considered necessary to achieve the po l i cy object ive of improving decis ion making by making environmental cons idera -t ions an integral part of the decis ion process. When the Min is ter for Environment announced the introduct ion of a Fed-eral Environment Assessment and Review Process in the House of Commons on 4 14 March 1974 he departed quite s i g n i f i c a n t l y from the Task Force proposal . The Min is ter announced that beginning 1 A p r i l 1974 federal government projects w i l l be screened to ensure that they do the least possible damage to our environment. Federal departments, crown agencies and pr ivate compan-ies with government cont racts , grants and loans w i l l have to prepare e n v i -ronmental impact statements. The statements w i l l be screened by a panel of experts w i th in the department who w i l l make recommendations to the M i n i s t e r . The proponent w i l l be responsible fo r the preparation of the statement f o l l o w -ing guidel ines to be issued by the department. The wr i t ten assessments of the expert panel w i l l be publ ished. In cases of broad publ ic in te res t the Min is ter may appoint a review board from outside the publ ic serv ice to hold publ ic hearings and publish recommendations,. Viewed against the c r i t e r i a set fo r th in Chapter I and imbedded in the Task Force proposal t h i s procedure has several weaknesses. F i r s t l y , i t would appear that the c r i t e r i a of what 4 House of Commons Debates, Vo l . 118, No. 12, 2nd sess ion , 29th Parliament 499-500. - 25 -amounts to s ignif icant impact on the environment v/ill be decided within the department and the perceptions of the department on the impact of a project wil l be published, so that the facts wi l l be presented to the public with the values already decided. Secondly, public participation wil l be limited to projects which evoke a broad public interest. It is d i f f i c u l t to v isual -ize how the public interest wil l be assessed when the public is not given any opportunity to know which projects are planned; the discretion in the Minister to decide when a project is of broad public interest is v i r tual ly a non sequiter. Thirdly , the proposal deals only with projects and there-fore completely omits to deal with other types of actions which the Task Force ident i f ied as pol ic ies programmes, legis lat ive proposals and opera-tional practices. The proposal does not heed the advice of the Task Force that this project by project approach is not adequate to solve the problem of environmental impact.5 The proposal does not face the real i ty that Information is l ike ly to have i ts greatest impact early in the planning process while the need for an airport , highway, dam, power plant or pipeline is s t i l l being discussed, and before a s i te is selected. Once the issue has been placed in a context, the decision maker wi l l follow routine patterns and l is ten to regular sources.6 Fourthly, the only provision for an independent review board is in cases of broad public interest . As already noted the l ikelihood of public interest developing is thwarted by a lack of information. In nearly a l l cases the 5 Task Force Report, op. cit., 5. 6 Ingram, H.M., "Information Channels and Environmental Decision Making", Natural Resources Journal, Vol. 12, 1973, 150 at 157. - 26 -entire procedure w i l l be carried out in the secrecy of departmental admin-i s t r a t i o n where factual data w i l l be given values without the benefit of a widened or disinterested body influencing the process. In fact the Minis-ter stated that the process w i l l be put into effect " i n close consultation with the provinces and with industry";^ this i s far short of an optimum result. An analysis of the workings of government w i l l be informative in understanding why the proposal of the Task Force was not adopted by the Q Minister and why instead he chose to "toss good wishes i n the a i r " rather than implement the proposal as recommended by his own Task Force. B. THE FRAMEWORK FOR DECISION From the beginning of Canadian s e l f government the parliamentary form of government has constituted the framework i n which decisions are made both at federal and provincial l e v e l s . Canadian government inherited from B r i t a i n the p r i n c i p l e of executive authority emerging from the l e g i s l a t i v e 9 authority instead of independently and separately as in the United States. The Cabinet i s the key feature of the parliamentary system i t l i n k s together the Governor-General and the P a r l i a -ment. I t i s for v i r t u a l l y a l l purposes the real execu-t i v e . It formulates and carries out a l l executive p o l i -c i e s ; i t i s responsible for the administration of a l l 7 Op. cit., The need for close l i a i s o n between government and industry was also Stressed in Environment Canada: Its organization and Objectives, op. cit. 8 House of Commons Debates, op. cit. 9 Epstein, L.D., "A Comparative Study of Canadian Parties". American P o l i t i -cal Science Review, Vol. LVIII, No. 1, March 1964, 46 at 49. - 27 -government departments; and also prepares by far the greater part of the l e g i s l a t i v e programme and exercises almost exclusive control over f inance.10 Cabinet ministers are a l l members of the Privy Council and as a Cabinet the ministers carry out the functions of the C o u n c i l . ^ Members of Cabinet must hold seats in one of the Houses of Parliament and are responsible to the House of Commons. The special features of the Cabinet are unity of po l i cy and secrecy in d e l i b e r a t i o n . The conventions of the Parliamentary system d i c t a t e that i f a Cabinet i s defeated in a proposal then e i ther i t resigns or the House d i sso l ves . As the government of the day general ly commands a majority in the House i t can be assured of continuance in o f f i c e so long as i t remains united i n i t s decis ion making. If at any time a substant ia l number of the majority party members cease to remain in accord with t h e i r fel lows or i f t h e i r a l leg iance to t h e i r leader i s ser ious ly weakened the resu l t ing adverse vote or even perhaps a mere abstentation from voting may bring the Prime Min is ter and Cabinet to humil iat ing defeat . The fa r reaching consequences of such act ion or inact ion however w i l l in themselves operate as a powerful check on party members set t ing up the i r ind iv idual opinions against t h e i r leaders for in order to a t ta in what admit-tedly may be a minor good they are forced to face the 10 Dawson, R. MacGregor, The Government of Canada, 4th E d i t i o n , Univers i ty of Toronto Press , Toronto, 1963, 181. 11 The Pr ivy Council s ince i t s inception has met only twice once in 1947 to receive the formal announcement by the King of his consent to the marriage of Princess El izabeth and again in 1952 to hear the proclama-t ion of the accession of Queen E l i zabeth . (Dawson., op. cit., 184 -5 . 28 p o s s i b i l i t y of the disasterous defeat of a Government with which they are general ly in whole hearted sympathy.12 The enormous stakes involved i n disagreement on one issue ensure that invar iab ly members w i l l be prepared to compromise to work out agreement on issues i n order to achieve s u f f i c i e n t unity to remain in o f f i c e . Remaining i n o f f i c e always being a greater good than the success or f a i l u r e of an ind iv idua l p o l i c y . The system of Cabinet government on party l i n e s gives a necessary s t a b i l i t y to government. This s t a b i l i t y however r e l i e s on the Cabinet's a b i l i t y to reach agreement on the government's p r i o r i t i e s and p o l i c i e s . Party cohesion accompanied by a majority in the House ensures the s t a b i l i t y of the Cabinet. This system i s in marked contrast to the system i n the United States where the purpose of primaries i s to make leg is -13 la tors independent of p a r t i e s . The cabinet system af fects the manner in which p o l i c i e s are made f o r i t leaves no room for working out ind iv idual preferences in the House but ensures that by the time an issue reaches the House the government w i l l be united i n i t s approach to the minutest d e t a i l of a po l icy proposal . The federal nature of Canadian government has necessitated the adop-t i o n of cer ta in p r inc ip les of composition not present in i t s B r i t i s h coun-t e r p a r t . ^ T ^ w s o n , R. MacGregor, "The Cabinet Pos i t ion and Personnel" Canadian Journal of Economics and P o l i t i c a l Science, Vo l . X H , Mo. 3 , 261 at ^bb. 13 Epste in , L .D . , ov. cit., 339. - 29 -The most notable characteristic of the Canadian cabinet is the representative nature of i ts membership: the Cabinet has become to a unique degree the grand co-ordin-ating body for the divergent provincial , sectional, re l ig ious, racial and other interests throughout the Domini on.14 Provincial representation in Cabinet is accorded to the Provinces in proportions dictated by the numbers of electors. Beside provincial repre-sentatives the Cabinet composition reflects racial and religious interests. It has also been noted that over the years certain provinces have estab-15 lished claims to particular departments. The composition of a Canadian federal Cabinet i l lust rates the strong preference for representing interests rather than selecting members on ab i l i t y or expertise relating to a particular department. This practice is in contrast to that of the United States where the President has a much wider choice of Cabinet personnel.^ The representative nature of the Cabinet in Canada has meant that in deliberations ministers are not merely representing their particular depart-ments and resolving issues between departments but are formulating policy amidst a myriad of interests. An individual minister may be called upon to represent one or several aspects of provincial or ethnic interests. In a country as large and as diverse as Canada i t is obvious that the influences upon policy w i l l be more diverse than the influences in a unitary government 14 Dawson, R. MacGregor, The Government of Canada, op. ait., 193. 15 Corry, J.A. and Hodgetts, J . E. , Democratic Government and Polities, 3rd edition rev. 1959, University of Toronto Press, Toronto, 174. 16 Dawson, R. MacGregor, The Government of Canada, op. cit., 210. - 3 0 -where unity i s a matter that i s taken fo r granted. In the federal system f a r from being taken for granted i t i s constantly sought, often at the cost * • +• 17 of i n a c t i o n . Given that there are inf luences and interests at work beside depart -mental ones i t i s i ns t ruc t i ve to examine the nature of the dec is ion pro -cess in the Cabinet system. The secrecy of de l iberat ions makes i t impos-s i b l e to pinpoint pressures involved i n p a r t i c u l a r issues but the process w i l l ind icate the leverage points where pressures can be exerted. When a department wishes to submit a po l i cy proposal i t i s forwarded to the Cabinet Secretar iat i n the form of a memorandum signed by the respon-s i b l e m i n i s t e r . The cabinet may wish to obtain more information and seek t h i s through consultat ion with groups, the appointment of a Royal Commission or a Task Force. The Trudeau government has preferred to use Task Forces a device seemingly character ized by i t s c loser a t t a c h -ment to the p o l i t i c a l executive i t s greater mixed use of intragovernmental and extra governmental advisers and i t s apparent speedier and less cos t l y methods of o p e r a t i o n J 8 The recommendations of a Task Force may not be acceptable to the Cab-inet who w i l l view the po l icy proposal not on i t s merits alone but against the competing and c o n f l i c t i n g in terests which they c o l l e c t i v e l y represent. It may wel l be that t h i s i s one reason fo r preferr ing the Task Force to the 17 Epste in , op. cit., at 58. 18 Wilson, V. Seymour, "The Role of Royal Commissions and Task Forces" in Doern, A .B . and Aucoin, P. (Eds. ) , The Structure of Policy Making in Canada, MacMil lan, Toronto, 1971, 115. - 31 -Royal Commission. Although the government is not committed to follow the advice of either, the publication of the Royal Commission report and the independent nature of i t s membership may cause interests whose hopes have been defeated to bring unwanted pressures to bear on the government. The secrecy of Task Force reports generally negates this mode of influence. Not every policy proposal goes direct ly to the Cabinet. Under Mr. Trudeau's leadership there has been a trend toward keeping f u l l Cabinet meetings to a minimum and placing instead a much greater proportion of policy making in the hands of Cabinet committees. "As far as possible the Trudeau government does not appear to deal with questions unti l they have 19 reached a clear cut and settled form in a Cabinet committee." Thus rather than a Minister being able to speak to a proposal in f u l l Cabinet, a more l ike ly route for a proposal w i l l be from Cabinet Secretariat to appropriate committee and a recommendation from that committee being placed before the f u l l Cabinet for confirmation. The membership of Cabinet committees i s confidential and the same rules of secrecy that govern Cabinet discussion apply. It is not therefore pos-sible to identify influences within the Committee system spec i f i ca l l y . However, the nature of the subject matters entrusted to each of the commit-tees gives some indication of the pr ior i t ies of the Government. There are nine standing committees of Cabinet; four co-ordinating com-mittees and f ive subject matter committees the latter comprising External 19 Mai lory , J .R . , The Structure of Canadian Government, MacMillan, Toronto, 1971, 108. - 32 -Po l icy .and Defence; Economic P o l i c y , Social P o l i c y , Science, Culture and 20 Information and Government Operations. When the proposal from a minister goes through the committee system i t w i l l be evaluated in the broader context of government concerns enumer-ated above. The committee w i l l e i the r make a decis ion or a recommendation to the f u l l cabinet . Min isters not on the committee but concerned with a p a r t i c u l a r proposal are informed of the committee's decis ion and the Min -i s t e r i f he disagrees with the committee's decis ion may r a i s e the matter 21 before f u l l Cabinet. The inf luence of an ind iv idual Min is te r i s d i f f i c u l t to determine but i t has been suggested that two factors are relevant in assessing ind iv idua l in f luence . F i r s t l y the proportion of budget allowance and secondly inher -22 ent funct ional po l icy in terests which confer high s tatus . The same wr i te r suggests that loya l t y and ideolog ica l patterns emerge 23 i n t rac ing the power wi th in the Cabinet. Whether one admits an intended inner Cabinet or whether i t i s merely accidental i t i s c l e a r that in a body of twenty-seven members some w i l l have more inf luence in po l icy d e l i b e r a -t ions than others e i ther because of t h e i r high status and f a r reaching 20 Canadian Yearbook, 1972, 91. 21 Matheson, Wi l l iam A . , "The Cabinet and the Canadian Bureaucracy" i n Public Administration in Canada: Selected Readings, 2nd e d i t i o n Kernaghan, W.D.K. and Wil lms, A.M. (Eds. ) , Methuen, Toronto, 1971, 346. 22 Doern, G .B . , "The Development of Po l icy Organization i n the Executive Arena", in Doern and Aucoin, op. cit., 71. 23 Ibid., 72. - 33 -functions of the i r po r t fo l i os or because of the budgetary a l l o c a t i o n attached to t h e i r departments. I t i s also c lear that when weight i s afforded to Prov inc ia l in terests the la rger provinces w i l l have a more not icable impact on p o l i c i e s than the smaller provinces simply on a numbers vote. Po l i c y making wi th in a cabinet system c l e a r l y involves much more than a decis ion on a p a r t i c u l a r proposal wi th in a departmental context . As members of the Cabinet t h e i r p r inc ipa l ob l igat ion i s to r e f l e c t and give e f fec t to the c o l l e c t i v e point of view—drawing together the publ ic i n t e r e s t s , a t t i tudes and aspi rat ions that f i n d expression in the p o l i t i c a l process and by reconc i l ing these providing the basis f o r an essent ia l uni t of government in pol icy and act ion.24 The outcome of the method of po l i c y making through Cabinet i s that there cannot be a major departmental decision which i s d i f f e r e n t or at odds with the overal l and broad plan of the Cabinet as a whole. When one refers to a departmental po l icy one i s in e f f e c t re fe r r ing to a Cabinet po l icy which has been expressed by a p a r t i c u l a r Minister on behalf of Cabinet. Once a Cabinet has decided upon po l icy then every M i n i s t e r must support i t f u l l y even i f he argued against i t in Cabinet. His only a l t e r n a t i v e i s to res ign . . . . b u t i f he remains in the Cabinet i t i s because he thinks that on the whole i t i s better that his v i e w s . . . should give way to the views of others and that w h i l s t 24 Wil lms, A . M . , "The Executive and the Departmental Structure" in Bureauora in Canadian Government, Kernaghan, W.D.K. (Ed. ) , Methuen, Toronto, 1969, 18. - 34 -his own judgment i s not i n accord with the judgment of his colleagues s t i l l i t i s fo r the best in terest of the country that he should resign his judgment to t h e i r s and continue to occupy a pos i t ion in the Cabinet.25 The Cabinet system emphasizes that each Minister i s only one of a Cab-inet which i s invar iab ly subject to balancing mechanisms of numerous degrees which outweigh purely departmental considerat ions. The notion of 'best ' po l i cy i n a Cabinet system r e f l e c t s much wider interests than ind iv idua l departments and places severe res t ra in ts on the nature of dec is ion making wi th in the p o l i t i c a l system. C. THE NATURE OF FEDERAL DECISION MAKING An examination of the nature of decis ion making by the federal govern-ment i s d i f f e r e n t from an inquiry into the process by which decis ions are formulated. The l a t t e r enquiry examines the inf luence of the s p e c i f i c structures of government on the decis ion making; the present inqui ry con-cerns the role of the government i n po l icy making. I t involves an examina-t i o n of the areas of government intervent ion and the c r i t e r i a used to j u s -t i f y intervent ion in to a c t i v i t i e s of the soc iety . The funct ion of government i s to mediate the c o n f l i c t -ing demands of people and to make and execute c o l l e c -t i ve decisions i n the f i e l d s in which public p o l i c y i s c a l l e d fo r .25 25 Dawson, R. MacGregor, "The Cabinet Pos i t ion and Personnel" , op. cit., 280. 26 May, Ronald J . , "Decision Making and S t a b i l i t y in Federal Systems," Canadian Journal of P o l i t i c a l Science, V o l . I l l , 1970, 72. - 35 -I t i s c lear that i n order to do t h i s the government must i t s e l f be able to i d e n t i f y some p r i o r i t i e s between actions and a lso be able to act upon some notion of what const i tutes publ ic p o l i c y . The nature of a federal system is such that the cohesion of the sys -tem implies that there are some areas of agreement which unite the independ-ent sections into one. I t i s therefore possible to i d e n t i f y p o l i c i e s which are agreed upon and form the framework for government a c t i o n . The deter -mination of po l i cy areas i s however more complex than t h i s for two basic reasons. The federal nature of the government encourages only a vague gen-e r a l i z a t i o n of po l i cy ob jec t i ves ; the main c r i t e r i a being the highest common denominator which w i l l give agreement. The more general the statement of an object ive the more l i k e l y i t i s that numbers w i l l agree with the goa l . Once a deta i led analys is of the po l i cy is . attempted i t may occur that some w i l l disagree not with the goal but the means to achieve the g o a l . I t i s therefore not of much assistance to look to the party platform f o r explana-27 t i o n of po l icy ob ject i ves . Secondly the increased complexity of govern-ment a c t i v i t y i n the welfare state has considerably elaborated the sort of decis ions required from government in i t s regulatory r o l e , which has neces-s i ta ted more complex trade o f fs even between g e n e r a l i t i e s . I t i s in te res t ing that the Economic Council of Canada i n i t s Annual Review of 1959 i d e n t i f i e d f u l l employment, a high and sustained rate of 27 Dawson, R. MacGregor, "The Government of Canada", op. cit., 4 7 0 - 1 , where he states that party platforms "always represent the highest common f a c -tor in a ser ies of widely divergent terms." 28 Economic Council of Canada, Sixth Annual Review: Perspective 1975, Queen's P r i n t e r , Ottawa, 1969, 2. - 36 -of economic growth, reasonable pr ice s t a b i l i t y , a v iab le balance-of-payments p o s i t i o n , and an equitable sharing of r i s i n g incomes as basic goals of Canadian soc ie ty . Indeed, these are basic goals and are probably equally true for most s o c i e t i e s . To enunciate more s p e c i f i c goals would require the government to com-mit i t s e l f more s p e c i f i c a l l y to a plan which may, when enunciated, cause the loss of support i n some sectors . As the overr id ing consideration i s to remain i n o f f i c e and the means of so doing i s to appeal to the greatest number of e lectors i t seems improbable that one can i d e n t i f y more concrete po l icy object ives or an overa l l plan by government. It would seem true that our system of government seems to be geared not so much to an a l l o c a t i o n of values but to ensuring that issues w i l l not be raised i n such a fashion as to force us into making choices between competing values. Head-on value confrontations seldom ar i se because the process of decis ion making i s incremental i s t . 2 9 The notion of incremental decis ion making has been formalized by 30 Charles Lindblom and the fo l lowing analys is w i l l give a descr ipt ion of his model. Lindblom says that the method used for po l i cy formulation i s one of decis ion by successive l im i ted comparisons which involves cont inua l l y 29 Hodgetts, J . E . , "Modern Ins t i tu t ions and Individual Values" , Queen's Quarter ly , V o l . LXXX, Winter 1973, 563 at 569. 30 Braybrooke, D. and Lindblom, C , A Strategy of Decision, New York Free Press , 1963. The model here anunciated i s set out in b r i e f e r form by Lindblom i n "The Science of Muddling Through", in Publ ic Administrat ion Review, XIX, Spring 1959, 79. - 37 -building out from the current situation step by step and by small degrees rathern than by a change in the basic broad goals. This method of incre-mental change from the status quo ensures that agreement on the broad objectives w i l l not be threatened for incremental changes can be assimilated into the broad platform and do not require a re-evaluation of the basic ob-jectives. In a system where goals are broadly stated there is presumed agreement on these goals, i t is only when agreement is sought on sub-objec-tives that different opinions emerge. The incremental method enables policy to be formulated without c lar i fy ing these objectives for evaluation and empirical analysis are intertwined because one chooses among policies and values at the same time, and one need focus only on marginal values, i . e . those by which alternate policies d i f fe r . 31 Under a rational comprehensive system of policy formulation i t is necessary to seek agreement on what elements in the decision constitute objectives and on which of those objectives should be sought whereas the incremental method rel ies on agreement to the policy as the c r i t e r i a for acceptabil ity; the only c r i te r ia for testing policy is whether i t is 32 acceptable or not, i f i t is then i t is good policy. This method recognizes that i t is often easier to reach agreement on what we are against rather than seek agreement on the means of achieving what we are for . Having established basic agreements suff ic ient to muster 31 The rational comprehensive method entails consideration from afresh for each new formulation of policy. 32 By contrast the rational comprehensive method is tested against whether the policy achieves the objective. - 38 -enough support to form a government the incremental method of po l i cy change i s less l i k e l y to os t rac i ze any of that support fo r gradual change provides a sequential l i n k with previous po l i cy . I t i s u n l i k e l y that any change in po l icy w i l l occur at a l l unless there i s some demand which the government fee ls the need to s a t i s f y . As i t appears more l i k e l y that the government w i l l tend to use po l icy changes to move away from present p o l i c i e s rather than use a change to move toward a future p o l i c y . The concerns of government are immediate and concerned with the present rather than the future . There i s a tendency among decis ion makers to concentrate on the d i r e c t and immediate e f fects of d e c i s i o n , d iscount -ing the remote and imponderable, the in tang ib le and poorly understood. The p rac t i ca l decis ion making strategy d i c -tates that a decis ion maker attend to the short run con-sequences in hope that the long run w i l l take care of i t s e l f . 3 3 It would seem therefore l i k e l y that a change i n po l i cy w i l l occur i f the immediate s t a b i l i t y i s threatened by a demand for a change. Demands 34 can be f e l t in several ways. There can be present a general publ ic demand for act ion i n a cer ta in area. Secondly there can be a demand from a department to c l a r i f y objectives or t h i r d l y there can be group demand from a sector too strong in number or i n inf luence to be ignored. A general demand w i l l , as has been i n d i c a t e d , be by i t s nature a gen-eral change in a t t i t u d e on some issue and because of i t s general nature 33 Ingram, H. , op. cit., at 151. 34 Sa l i sbury , R .H . , "The Analysis of Publ ic P o l i c y " , Political Science and Public Policy, Ranny, A. (Ed. ) , Markham, Chicago, 1958, 152-74. - 39 -w i l l be more i n c l i n e d to cause the government to do something pos i t i ve to accommodate the changed a t t i t u d e . I f the pressure i s general there are d i f f i c u l t i e s inherent in def ining publ ic at t i tudes s p e c i f i c a l l y so a po l i cy change may tend to be of a d i s t r i b u t i v e k i n d , without any r e d i s t r i b u t i v e 35 ef fec t u n t i l a t t i tudes are c l a r i f i e d . If the demand i s f e l t from wi th in the government st ructure a change w i l l resu l t from a readjustment among departments and the po l icy w i l l tend to resu l t in act ion which i s s e l f -regulatory . I f however the demand i s f e l t from one sector of soc iety then the r e s u l t i n g change w i l l tend to be r e d i s t r i b u t i v e i n favour of the sector whose demands are being accommodated. The nature of the change i n t h i s case w i l l depend upon the areas of in te res t being protected by the pressure group. I t i s possib le that a l l three factors may be at work at the same time and to some degree inf luence a subsequent change in p o l i c y . I t would seem c lear that the resu l t ing change w i l l r e f l e c t the i n t e n s i t y and breadth of demand of the various in terests whose demands are to be met. I t would seem true that minor i t ies are often able to get measures in t h e i r favour , not because of act ive support of a majority of the e l e c t o r -ate but because the majority in the l e g i s l a t u r e th ink i t i s a good th ing and that on balance i t w i l l mean more gain than loss i n e lectora l support.36 35 The d i f f i c u l t y in measuring publ ic at t i tudes i s i l l u s t r a t e d by Winham in "Att i tudes on Po l lu t ion and Growth i n Hamilton, or "There's an awful l o t of ta lk these days about eco logy . " " , Canadian Journal of P o l i t i c a l Science, 1973, Vo l . 5, 389. His survey showed that while residents regarded p o l l u t i o n as a problem they a lso favoured more growth, "It seems ta lk about ecology may not necessar i ly be backed up with act ion when i t a f fec ts our material well b e i n g . " , at 400. 36 Corry, J .A . and Hodgetts, J . E . , op. cit., 140. - 40 -F i n a l l y , i t would seem apparent that government w i l l on the whole be responding to an i n f l u e n t i a l minority supported general ly by a larger group who do not disagree although they may not be as intense or united as the smaller group. Government i s less l i k e l y to respond to a demand from a minority i f the minority i s i t s e l f fragmented for fragmentation w i l l d i l u t e 37 the in tens i t y of the group's demand. In th i s respect i t v/ould seem that some groups e i ther by s i ze or by inf lucence are in a better pos i t ion to inf luence pol icy than other groups. Thus a change in po l icy w i l l represent mutual adjustment e i ther between departments of government or between in terest groups. This process aims at a so lu t ion which i s not the attainment of a po l icy object ive so much as a so lu t ion which w i l l be an improvement in present pol icy but w i l l not be such a departure from the present po l icy that support in some sectors w i l l be l o s t . D. ENVIRONMENTAL POLICY WITHIN THE CONTEXT OF CANADIAN FEDERAL POLITICS The federal government's instrument for the expression of i t s env i ron-38 mental po l i cy i s Environment Canada which was establ ished in 1971 and con-s i s t s of seven services s i x of which are consol idat ions from other depart -ments and one of which was a new creat ion conceived during the planning and 37 Ingram, op, cit. , notes that as a group environmental in te res ts have not been cohesive e i ther in demands or goals. The same can be said of groups in Canada who are often concerned with s p e c i f i c issues rather than general ob ject ives . 38 Government Organization Act 1970. R .S .C . , 1972, 2nd Supplement, c . 14. - 41 -organizat ional process to provide overa l l planning and pol icy advice. The planning, po l i cy and research serv ice i s divided into three Directorates namely, po l icy and planning; intergovernmental a f f a i r s and research c o - o r d i n -a t i o n . The broad goals of the federal government in r e l a t i o n to natural resources and the environment have been reported as , on the one hand to ensure that a l l Canadians have access to a s t y le of l i f e b e f i t t i n g a nation r i ch in natural resources and, on the other hand, to safeguard these natural resources for future use by the present generation and the generations to fo l low . To t h i s end the Department of the Environment has been establ ished to help ensure the protect ion , preservation and enhancement of Canada's 39 environment whi le encouraging e f f i c i e n t use of i t s natural resources. Environment Canada has a dual ro le of developing resources and of pre-serving environmental q u a l i t y . Inherent i n these roles i s the c o n f l i c t of 40 growth versus conservation which beleagues a l l environmental p o l i c i e s . I t requires answers to questions of soc ia l choice concerning the fundamental questions of how much growth i s des i rab le and what const i tutes a good environment. As has been previously suggested the l i k e l i h o o d of reso lut ion of these questions by a head-on c o n f l i c t i s un l ike l y without guaranteed mass support fo r one over the other. Instead one has a department with dual c o n f l i c t i n g goals which attempts to serve both objectives to a degree. 39 Canada Yearbook, 1972, 516. 40 Environment Canada: Its Organization and Objectives stresses that " in the department of the Environment f i s h e r i e s r e s p o n s i b i l i t i e s command continuing p r i o r i t y . " - 42 -The establishment of Environment Canada does at least recognize the need f o r a h o l i s t i c approach in dealing with environmental questions and therefore proves to be of potent ia l when objectives are more s p e c i f i c a l l y quant i f i ed . The environment impact assessment procedure introduced into the Commons in March 1974 did not mark a changed emphasis in pol icy but as L i n d -blom's model suggests was a gradual change from an ex i s t ing p o l i c y . When Environment Canada was establ ished in 1971 one of the s i x goals of the department was stated to be to assess and control the environmental impact of major development and to do th is by an improved mechanism for 41 consultat ion and co-ord inat ion of government e f f o r t . In answer to a question concerning Federal government intent ions for environmental l e g i s l a -t ion Mr. David indicated that his government was considering l e g i s l a t i o n along the l ines of the National Environment Protect ion act in the United States. He said we are developing l e g i s l a t i o n at the federal level but th i s would apply only to projects which are internat ional or i n t e r - p r o v i n c i a l . I would say that two-thirds of the decisions would s t i l l be made at the prov inc ia l l e v e l , so you would have to look to prov inc ia l or municipal law to give you that entree intq the decis ion making process at these l e v e l s . The j u r i s d i c t i o n a l question of fers one key to the so lut ion why such a 4 1 . Ibid. 4 2 . Efford L. E. and Smith B.M. , Eds. Energy and, the Environment. H.R. MacMillan Lectures for 1 9 7 1 . Ins t i tu te of Resource Ecology, Univers i ty of Br i t i sh . Columbia, 1 9 7 2 , p. 2 0 2 - 3 . - 43 -mild proposal was eventually adopted. As has been explained e a r l i e r one of the major concerns of Cabinet is the unity of the country. If policy i s developed i n an area where j u r i s d i c t i o n may overlap then the federal govern-ment w i l l move cautiously for fear of alienating one or more of the provinces, 43 especially i f those provinces are large or i n f l u e n t i a l . Freed from provincial j u r i s d i c t i o n a l restraints i t would appear that the Federal govern-ment would act more p o s i t i v e l y . The T e r r i t o r i a l Land Regulations are evidence 44 of t h i s . Another problem would appear to be concern for departmental boundaries within the parliamentary system as the following exchange between Mr. Davis and Mr. Fraser taken from the Minutes of a Fisheries and Forestry Committee in 1973 i l l u s t r a t e s . Mr. Fraser: Has there been any serious consideration by the government to secure t h i s procedure by enacting l e g i s l a t i o n which would require the Department of the Environment to persue and approve of any project done by another department from an environmental point of view before i t goes ahead? Mr. Davis: I do not think l e g i s l a t i o n along those lines would be considered very r a t i o n a l , at least in a parliamentary type of government. You are talking about relationships between private individuals or other governments with the federal government. You are talking about r e l a t i o n -ships between agencies and departments within a single government, and JT. The low p r o f i l e taken by the Federal government in the dispute over the James Bay development i l l u s t r a t e s t h i s . 44. These regulations apply under the T e r r i t o r i a l Lands Act., R.S.C.C.T-6, 1970, which applies in the Yukon and North West T e r r i t o r i e s . Under the regulations an applicant for a permit must make an environmental impact assessment of his proposed action before a permit w i l l be issued. - 44 -t h i s t y p i c a l l y i s covered in a l l parliamentary systems by the administrat ive arrangements and not by a legal requirement. Surely the government can sort out i t s own dif ferences i n t e r n a l l y without requi r ing 45 a law of Parliament to require i t to do so. The M i n i s t e r ' s remarks in th i s exchange bear l i t t l e resemblance to the words he uttered in response to a s i m i l a r question two years e a r l i e r . This change in the M i n i s t e r ' s a t t i tude should give some ins ight into the reasons for the m i l d proposal which the government eventually adopted. Apart from j u r i s d i c t i o n a l doubts i t i s c lear from what has been previously said that the government w i l l be more l i k e l y to respond to shor t -term rather than long term consequences of p o l i c i e s . I t i s therefore highly un l ike l y that a po l icy which promises long term benefits but short term costs w i l l be p o l i t i c a l l y acceptable. The Task Force i d e n t i f i e d ce r ta in short term costs involved i n i t s proposal which would enta i l short - run adjustments with in the economy to accommodate added construct ion and operational costs and a r e a l l o c a t i o n of resources from one sector to another. The benefits from adoption of the 45 proposal were a l l i d e n t i f i e d as long term. It has already been said that government does not by i t s e l f respond to long term "preferred f u t u r e s . " The government w i l l respond however to demands even i f these demands re la te to the fu ture . So long as the demand i s s u f f i c i e n t l y strong i t s 4b\ Minutes of the F isher ies and Forestry Committee, Issue Mo. 8 , A p r i l 10, 1973 8 : 9 ; 8 : 10. 46. Task Force report op. cit. - 45 -presence can bring act ion which resu l ts in future benef i ts . Demands have been i d e n t i f i e d as emanating from three sources. F i r s t l y the department may press for change. It can be said that Environment Canada did th i s when the Task Force was appointed. However, i t has been shown that the Cabinet System leaves no room for ind iv idual departmental p o l i c i e s which are at odds with the consensus of Cabinet. If the demand i s f e l t therefore only i n one department then in the absence of agreement of his fe l low Ministers the departmental i n i t i a t i v e i s d i lu ted u n t i l i t r e f l e c t s the agreement of other members. The system therefore requires pressure to be f e l t in more than one department; i t requires a convict ion amongst a majority of Ministers that a change i s required. It seems apparent that one Min is ter could persuade his fel lows of the need for such a change and i t would seem that the inf luence of the par t i cu la r department w i l l be relevant in how persuasive a measure appears. The c r i t e r i a for inf luence being i d e n t i f i e d as budgetry allotment and p o r t f o l i o f u n c t i o n a b i l i t y . It i s not one of the funct ional p o r t f o l i o s and in terms of budget Environment Canada ranks eleventh behind departments whose objects are expansion and exp lo i ta t ion of natural r e s o u r c e s . ^ In as much as pressure groups operate wi th in federal government i t would appear that as far as government i s concerned with immediate impact of p o l i c i e s and environmental impl icat ions are more remote then 47. Vancouver Sun, October 20, 1973. "Saving Our Environment Slowly, Neale Adams, 6. - 46 -"partly for this reason, development interests have t radit ional ly had more communications links with natural resources, decision makers than have environmental groups." 4 8 Thus i f any strong influences from groups was fe l t i t would more l i k e l y have come from development rather than conservation interests. E. THE LIKELY IMPACT OF THE REVIEW PROCEDURE There seems l i t t l e reason to believe that the review procedure announced by the Minister w i l l result in act iv i ty very different from that experienced in the past. Since the inception of the Department one of the aims of the Environment Protection Service has been to take action in preventing or combatting environmental problems for which the department has responsibi l i ty ; this responsibil ity includes control of act iv i t ies 49 having an ecological impact. In terms of the purposes advocated for the use of environmental impact procedures as a planning tool the Federal proposal f a l l s short in several respects. F i r s t l y the proposal deals speci f ica l ly with projects. It has been 48. Ingram H. op. cit. , 159. Presthus has also noted that the majority of l iberal campaign funds come from industrial interests. Presthus, R. "Interest Groups and the Canadian Parliament: Activities, Interaction, Legitimacy and Influence," Canadian Journal of Po l i t i ca l Science, 1971, Vol. 4, 444 at 452. 49. Environment Canada Organization and Objectives op. cit. - 47 -previously noted t h a t t h e lead time between proposal and project can be up to ten years and that by the time a project has been c r y s t a l l i z e d in the minds of proponents then many a l ternat ives have already been f o r e - c l o s e d . Secondly and implied in the f i r s t objection is the idea that the procedure w i l l ensure that the least possible damage w i l l occur. This i s the type of 50 philosophy so vehemently c r i t i c i z e d by Peterson. In these circumstances the procedure i s u t i l i z e d merely to l i m i t environmental harm by choice of design and use of technology. It denigrates the process to deal ing with technological impacts and avoids the more complex and urgent problem of soc ia l choices. Th i rd ly the Environment Assessment Panel establ ished to determine the threshhold question of when an assessment w i l l be required 51 i s not an independent body but one wi th in the department. It w i l l therefore, be subject to the same p o l i t i c a l pressures that are at work throughout the departments to balance out c o n f l i c t i n g i n t e r e s t s . Its recommendations are made to the Min is ter who in turn w i l l be subject to Cabinet accommodations. The resu l t w i l l be i n many cases c i r cu i tous as many federal projects on which the panel w i l l be required to de l iberate w i l l already have been approved by the Cabinet and the obvious bias in favour of proceeding w i l l have nurtured before the Panel sees an impact assessment. Fourthly the opportunity for publ ic input into the process would appear to be minimal. It i s not u n t i l "broad publ ic in te res t " has been displayed that there w i l l be l ikelyhood of an independent Review Panel or any publ ic 5lh Peterson E.B. op.cit. 51. On 25 May 1974, the Min is ter announced the appointment of Panel Chairman Dr. R. Reed Logie the former Ass is tant Deputy Min is ter of F isher ies and u n t i l his new appointment Secretary of the Environmental Advisory Counc i l . - 48 -hearings. It would seem un l ike l y that public, in terest w i l l be given the opportunity to germinate unless there i s publ ic input. The conundrum posed by th is aspect of the procedure i s not d i f f i c u l t to so lve ; in most cases there w i l l be no publ ic input . F i f t h l y the value judgments which the process involves w i l l a l l be made wi th in the department without the attempt to broaden the dec is ion basis by publ ic input . As there are no ind icators of publ ic a t t i tudes to actions without publ ic consultat ion the only yardst ick by which judgments can be made i s the perception of par t i cu la r departments which must, whether consciously or not be biased in favour of the pro ject . In summary the proposal f a l l s fa r short of the ideals set out in Chapter I regarding the purposes of impact assessment procedures. At worst the proposal i s not new at a l l and merely formalizes what one hoped was already happening wi th in the department at best i t i s a f i r s t very f a l t e r i n g step toward a l a t e r more comprehensive proposal which w i l l r e f l e c t c learer objectives and provide the necessary i n s t i t u t i o n a l arrangements to ensure that the procedures do become part of government decis ion making processes. Experience in the United States has suggested that departments change processes slowly and u n w i l l i n g l y . Even the l e g i s l a t i o n enacted there to spur on the process met with resistance in agencies and many agencies sought exemption from i t s prov is ions . There i s no reason to bel ieve that Canadian departments w i l l act d i f f e r e n t l y from the i r U.S. counterparts. I t would therefore seem essent ia l that i f impact assessment i s to become part of the decis ion making processes then l e g i s l a t i o n w i l l be required to assure - 49 -i t s adoption. The model law has been provided by the United States. The impact of t h i s statute in the United States and the limit a t i o n s inherent i n attempting to transplant i t into the parliamentary system are the subjects for the next Chapter. - 50 -CHAPTER H I . , THE NATIONAL ENVIRONMENTAL POLICY ACT A. THE BACKGROUND The National Environmental Po l icy Act was signed into law on 1st January 1970 J ' . .This Act was the end resu l t of Congressional discussions which 2 spanned more than a decade. As has been noted e a r l i e r democracies tend to respond to problems rather than to seek preferred futures . The h is tory of N.E.P.A. i s no exception to th i s philosophy. The f i r s t attempts to es tab l i sh a national goal for environmental po l i cy can be traced to the Resources and Conservation Act 1960 which was 3 introduced into the 86th Congress by Senator James Murray. The purpose of t h i s b i l l was to declare a national po l i c y . This b i l l was never adopted and environmental measures were relegated to the administ rat ive processes. The questions concerning environmental qua l i t y gained momentum through-out the country in the s i x t i e s and by 1964 had become a major theme in Johnson's pres ident ia l campaign. Although the environment played only a minor part in Nixon's campaign a f te r h is e lect ion he appointed a Task 1. 42. U.S.C. 4321 2. The f u l l l e g i s l a t i v e h is tory i s set for th in Yarr ington, H . J . , The National Environmental Policy Act. Environment Reporter Monograph No. 17 Jan. 4 , 1974, v o l . 4, No. 36. The e a r l i e r b i l l s are discussed in Cooley, R.E. and Wandesforde-Smith, G. (eds.) Congress and the Environment, Univers i ty of Washington Press, Washington 1970. 3. S. 2549, 1959, 86th Congress. - 51 -Force under Russell Train to examine the issues involved in environmental qua l i t y questions. The Task Force was forcefu l in i t s suggestion that the new administrat ion should give the issue high p r i o r i t y . The Task Force recommended appointment of a special p res ident ia l ass is tant for environmental a f f a i r s who would also serve as executive secretary of a new Pres ident 's Council on the Environment. The President did not heed the advice of the Task Force concerning a special ass is tant but preferred a Cabinet level interagency coordinating committee establ ished by executive order. Meanwhile Senator Jackson who favoured establishment of a permanent body in the executive Of f i ce of the President had introduced a B i l l into Congress on 17 February which proposed such a Counc i l . ^ In A p r i l the Senate conducted i t s hearing on the B i l l and s i x weeks l a t e r an amendment was added which declared a national p o l i c y . Two l a t e r amendments al tered the r ight to a healthful environment to the phrase "each person should enjoy a healthful environment" and the prov is ion "for a f i n d i n g " in r e l a t i o n to environmental impact to a "deta i led statement" of impact. The B i l l was passed unanimously and without debate by the Senate on Ju ly 10th, 1969. Before submitting i t s B i l l to Senate-House conference committee several changes were made inc luding the amendment believed to be the forebear to s .102. The conference reached agreement on 17 December, both Houses agreed to the report and a week la te r i t became law. Af te r so many years of discussion i t may seern that the Act became law 4. S. 1075 introduced Feb. 18, 1969. - 52 -without much opposi t ion. There are two events of p o l i t i c a l s i g n i f i c a n c e which occurred during 1969 which may wel l account for the changing a t t i t u d e . In January of 1969 a break in an underwater o i l well in the Santa Barbara Channel covered a substant ia l length of ocean frontage with crude o i l and caused extensive destruct ion to b i rd and marine l i f e and the beaches. Secondly in May, 1969 the Department of Defence announced i t s in tent ion to dump 27,000 tons of surplus deadly nerve gas and other chemical weapons in the A t l a n t i c . Both these events brought heated protests from the people 5 and the press. "The American publ ic was becoming sens i t i zed to environmental q u a l i t y issues and unperceptive government agencies doing business as usual suddenly found themselves in deep trouble over matters that formerly could have been considered as merely t e c h n i c a l , i f not routine operations. 6 These events were s u f f i c i e n t to set the p o l i t i c a l stage for Congress 7 to provide an answer; the resu l t was the National Environmental Po l i c y Act . B. NEPA: ITS PROVISIONS In passing NEPA the Congress had several purposes which can be e lucidated from an examination of the declarat ion of purposes and the two-separate t i t l e s . Section 2 states the purpose of the act as fo l lows : 5. The account i s re lated in Caldwell , L., Environment: A Challenge for Modern Sooity. Natural History Press, N.Y. , 1970, 211. 6. loc c i t . 7. Hereafter referred to as NEPA. - 53 -To declare a national policy which w i l l encourage productive and enjoyable harmony between man and his environment; to promote ef f o r t s which w i l l prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. ^ T i t l e 1 consisting of f i v e sections amplifies the poli c y declaration: and sets forth procedures for effecting i t . The policy declaration recognizes the impact of man upon his environment and the growing awareness of the deterioration of the environment as a re s u l t of this impact and declares the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations to use a l l practicable means and measures, including f i n a n c i a l and technical assistance in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and f u l f i l l the s o c i a l , economic and other requirements of present and future generations of Americans. 9 In order to carry forth t h i s policy the act recognizes that the Federal government has a.continuing r e s p o n s i b i l i t y to use a l l p r a c t i c a l means consis-tent with other essential considerations of national policy to s t r i v e toward the following goals (1) to f u l f i l l the r e s p o n s i b i l i t i e s of each generation as trustee of the environment for future generations (2) to assure for a l l Americans safe, h e a l t h f u l , productive, and e s t h e t i c a l l y and c u l t u r a l l y pleasing surroundings 8. 42 U.S.C. 4321 9. 42 U.S.C. 4331 - 54 -(3) to a t t a i n the widest possible range of beneficial uses of the environment without degradation, r i s k to health or safety or other undesirable and unintended consequences (4) to preserve important h i s t o r i c cultural and natural aspects of the national heritage, and maintain wherever possible an environment which supports d i v e r s i t y and variety of individual choice (5) to achieve a balance between population and resource use which w i l l permit high standards of l i v i n g and a wide sharing of l i f e ' s amenities (5) enhance the quality of renewable resources and approach ,g the maximum attainable recycling of depletable resources. Having set forth national goals and p r i o r i t i e s the Congress then recognized the rig h t of each person to enjoy a healthful environment. The next section sets forth the procedures whereby federal agencies incorporate the p o l i c i e s and goals into t h e i r a c t i v i t i e s and directed that existing laws, regulations and policy be intepreted and administered to "the f u l l e s t extent possible" in accordance with the p o l i c i e s set f o r t h in the Act. A l l agencies are required to 1. u t i l i z e a systematic i n t e r d i s c i p l i n a r y approach 2. i d e n t i f y and develop methods and procedures to assure that consideration i s given to unquantified environmental amenities along with t r a d i t i o n a l concerns of technology and economics. 3. to prepare environmental impact statements 4. to study develop and describe appropriate alternatives where any unresolved c o n f l i c t s concerning resource use arise 5. be mindful of the international nature of the environmental questions. 10. Ibid. - 55 -6. make available advice and information on the quality of the environment 7. i n i t i a t e and u t i l i z e ecological information 11 8. a s s i s t the Council on Environmental Quality. Every agency i s required to review i t s statuatory authority, adminis-t r a t i v e regulations, p o l i c i e s , and procedures to identify any deficiencies or inconsistencies which would prohibit f u l l compliance with the goals of the statute and propose to the President any measures which may be necessary to bring them in l i n e with NEPA goals. Provision i s also made to ensure the NEPA w i l l only expand and not l i m i t environmental mandate of agencies. T i t l e II of the act deals with the Council on Environmental Quality. In seven sections i t provides for the President to submit an annual 13 environmental q u a l i t y report, establishes the Council of three appointed 14 15 by the President, gives the Council authority to appoint s t a f f , sets forth the duties of the Council as follows: 1. to a s s i s t and advise the President in the preparation of the report. 2. to gather timely and authorative information 3. to review and appraise various programs in the l i g h t of the policy 4. to develop and recommend to the President national p o l i c i e s to further the goals 5. to conduct investigations and studies 6. to analyse changes and trends i n the natural environment 7. to make an annual report to the President 1g 8. to make reports as may be requested by the President. 11. 42 U.S.C. 4332 12. 42 U.S.C. 4333 13. 42 U.S.C. 4341 14. 42 U.S.C. 4342 15. 42 U.S.C. 4343 16. 42 U.S.C. 4344 - 56 -The goals which Congress had intended by the enactment of NEPA are as the summary of i t s provisions reveals, very broadly stated. The task of translating the goals into agency procedures commenced with Executive Order 11514^ which, again in general terms required the agencies to implement NEPA's goals; to this end the Council on Environmental Quality was to issue 1 o guidelines to federal agencies for the preparation of impact statements. Interim guidelines were issued on 11th May 1970,^ and since then three 20 additional sets have been issued. 21 The achievements of NEPA and the Council on Environmental Quality in giving effect to the broad goals spelt out by Congress cannot be seen from the language of the act but rather must be seen in the context of the system of government i n which they were enacted. In the four years since i t s enactment the f l e s h that now clothes the bare bones language of the statute has been added by the j u d i c i a r y . 22 In an understanding of the effects of NEPA i t i s important to look to the interpretations which have been b u i l t up in over 400 cases l i t i g a t e d since 17. Executive Order 11514 (March 5 1970) 35 F.R. 4247 (March 7, 1970) Environment Reporter - Federal laws 71 : 0121. 18. Ibid. S 3(h). 19. CEQ interim guidelines May 11, 1970, 35 FR. 7390-7393 May 12, 1970 20. CEQ guidelines, A p r i l 23, 1971, 36 FR. 7724-7729 A p r i l 23, 1971, CEQ guidelines May 16, 1972 issued as recommendations only and not published in the Federal Register. CEO guidelines August 1, 1973, 38 FR. 20550-20562 - August 1, 1973. Environment Reporter - Federal Laws 71 : 0301. 21. hereafter referred to as CEQ 22. Yarrington op.ait. 10 - 57 -the enactment of MEPA. The large number of cases makes i t impossible to analyse each achievement but for the purposes of th is paper a l l that i s attempted i s some ins ight into trends which have been implanted on agency procedures by the act ive ro le of the courts . The publ ic have been the pr inc ipa l p l a i n t i f f s under the l e g i s l a t i o n and t h e i r ro le in the achievements also i s worthy of a t tent ion . The CEQ through i t s guidel ines and role as overseer has a lso played a key ro le and not least the agencies of the federal government to whom the act i s d i rec ted . C. THE ROLE OF THE JUDICIARY The act ive part taken by the j u d i c i a r y in the development of NEPA was not a foregone conclusion at the beginning. While i t i s c lear that the court had j u r i s d i c t i o n to ensure that actions met s t r i c t procedural requirements of the Act the court could have stopped short of the act ive ro le which i t has taken. However in the f i r s t decided case the court took the 23 view that " i t i s hard to imagine a stronger mandate to the courts " and t h i s a t t i tude has prevai led in the vast majority of proceedings under the Act . The wi l l ingness of the courts to s t r i c t l y oversee agency act ion under the statute has been at t r ibuted to several circumstances and perhaps the 23. Texas Comm. on Natural Resources v. United States 2ELR 20574 at 20575 - 58 -strongest being that NEPA has entered the l i s t s at just the time the courts are generally tightening t h e i r review of agency decision making, and...NEPA's reform minded provisions contribute to the courts' e f f o r t s i n the same way that s t r i c t e r j u d i c i a l review does. J u d i c i a l review has centered upon the action forcing procedure set forth by s,102(2)c which i s as follows: a l l agencies of the federal government s h a l l . . . include i n every recommendation, or report on proposals f o r l e g i s l a t i o n and other major federal actions s i g n i f i c a n t l y a f f e c t i n g the qu a l i t y of the human environment, a detailed statement by the responsible o f f i c i a l on -( i ) the environmental impact of the proposed action ( i i ) any adverse environmental affects which cannot be avoided should the proposal be implemented ( i i i ) alternatives to the proposed action (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long term p r o d u c t i v i t y , and (v) any i r r e v e r s i b l e and i r r e t r i e v a b l e commitments of resources which would be involved i n the proposed action should i t be implemented.25 Nearly every clause of t h i s section has been discussed by the courts during l i t i g a t i o n under the Act. The courts have dealt with the question of who should prepare the statement. It may seem clear from the section but controversy has arisen where more than one agency has been involved and where the responsible o f f i c i a l has attempted to delegate the task especially in licencing and 24 Anderson, F.R., NEPA in the Courts: A legal analysis of the National Environmental Policy Act, published for Resources for the Future by the John Hopkins Press, Baltimore, 1973, 17. 25. 42 U.S.C. 4332 - 59 -permit procedures. The CEQ guidelines have dealt with the former' 1 0 and the courts have defined more c l e a r l y the l a t t e r . The courts have distinguished between delegation of the task of preliminary assessment and delegation of the f i n a l assessment. Although some c o n f l i c t exists between the decided cases the court has made clear that the r e s p o n s i b i l i t y for the statement rests with the responsible federal o f f i c i a l and not be l e f t to an applicant 27 who w i l l tend toward preparation of a s e l f serving statement. The question of what actions w i l l require the preparation of an impact statement has been broadly considered under the words 'any major action s i g n i f i c a n t l y affecting the quality of the environment.' Whether these c r i t e r i a involves one test or two i s moot. However i t i s clear that 'it i s safe to predict that where the Federal government is involved in a project i n any way, no matter how s l i g h t i t s involvement i n the project w i l l more than l i k e l y be considered "federal" action within the meaning of NEPA. The same broad interpretations have been applied to the words 'major1 and ' s i g n i f i c a n t ' so that a low threshold has been set to include most actions 29 within the act. 26. CEQ guidelines A p r i l 23, 1971, s .5b. 27. The state of law at present has some ambiguity. In some cases a degree of delegation, short of abdication of r e s p o n s i b i l i t y was permitted. The issues are discussed by Yarrington, op. ait. 17-20 and Anderson,op.cit., 186-196. 28. Yarrington,op. cit.,22. 29. there a few cases which consider actions to be minor but Jul i s v.Cedar Rapids 3 ELR 20033 (N.D. l a . 1972) involving c i t y street repairs and Virginians for Dulles v. Volpe 3 ELR 20360 (Ed Va. 1972) involving landing f a c i l i t i e s f o r larger a i r c r a f t at an existing airport are i l l u s t r a t i v e . - 60 -The discretionary question of when an action comes within the terms of the act has raised the p r o b l e m o f whether the C o u r t s s h o u l d a d o p t a p o s i t i o n requiring de novo review of the threshold issue or whether the test should be re s t r i c t e d to review to determine whether the agency has acted a r b i t r a r i l y and capriciously. The real significance of the dispute over standards of review i s that i f courts must re l y on agency determinations, the agencies themselves can decide when to prepare statements. The very agents of a government whose environmental errors led to the adoption of NEPA would be able to set the threshold below which the Act would not apply. 30 The adequacy of the statement which i s required to be a detailed one has been a constant topic of l i t i g a t i o n and j u d i c i a l interpretation of the section has been instrumental i n defining the standards which w i l l be required. During the f i r s t year of NEPA the courts appeared s a t i s f i e d with substantial compliance with the section and based the test of adequacy on bona fides 31 c r i t e r i a . This test was soon amended to one of s t r i c t compliance drawing strength from the words 'to the f u l l e s t extent possible' i t was made clear that this language does not provide an escape hatch for foot dragging agencies; i t does not make NEPA's procedural requirements somehow 'discretionary.' Congress did not intend the,Act to be such a paper t i g e r . Indeed the requirement...sets a high standard for the agencies a standard^which must be rigorously enforced by the reviewing courts.'32 30. Anderson,,<?p. cit. ,101 31. The early view i s i l l u s t r a t e d by the decisions in Bucklein v. Volpe 1 ELR 20043 (N.D. Cal 1970) and Citizens to preserve Foster Park v. Volpe V.. ELR 20389 (N.D. Ind. 1971). In the former the court decided that environmental matters had been amply considered although a formal statement had not been prepared. In the l a t t e r the court held that although the statement did not conform to the requirement set out in the Act in s. 102 the defendent had complied to the extent possible. 32. Calvert C l i f f s ' Coordinating Committee v,Atomic Energy Commission. 1 ELR at 2036. Judge Wright at 20348. - 61 -A l l agencies have been required by the courts to comply with NEPA. The arguments of some agencies that the i r environmental protection p o l i c i e s are not within the mandate have not been accepted. In order to exempt EPA water quality decisions from the requirement of s.102(2)(c) statutory amendment was 33 necessary. A l b e i t b r i e f t h i s outline of trends in j u d i c i a l interpretation of NEPA indicates that the courts in the vast majority of cases have taken the words of the statute to indicate that the agencies''mandates have been widened to enable them to consider environmental matters previously disregarded as not within t h e i r scope and have taken the s p i r i t of the statute to make inroads into agency procedures to ensure that the act finds meaning. D. THE ROLE OF THE CITIZEN NEPA provides that prior to making any detailed statement under s.102(c) copies and comments thereon shall be made available to the President CEQ and the public as provided by Section 552 of T i t l e 5 of the 34 United States Code. The act therefore makes i t clear that the public is to be a recipient of the information in the agency's statement. However, i t i s not clear from the act i t s e l f that the public i s to have any active role in the consultation and comment process. Executive Order 11514 c l a r i f i e s t h is together with CEQ guidelines which provide that agencies which hold hearings should make t h e i r draft statements available to the public at least 33. Federal Water Pollution Control Act. s. 511 (c) (2) Amendments 1972 E.R. Federal Laws 71 : 5101 34. 42 U.S.C. 4332 - 62 -f i f t e e n days prior to the hearings. J J The courts have also stressed the importance of the role of the public and have held that f a i l u r e to give adequate and e f f e c t i v e notice to the public O r -i S f a i l u r e to comply with the act. The public's role has not been confined however to commenting procedures. The public has made a much greater contribution through the c i t i z e n s u i t 37 and class actions. The Administrative Procedure Act gives persons aggrieved by agency action within the meaning of a relevant statute standing to sue. Some commentators have argued that NEPA alone i s s u f f i c i e n t to confer locus 38 standi however i t i s not necessary to resolve this question i n l i g h t of the Administrative Procedure Act. In order to establish standing the p l a i n t i f f must allege i n j u r y i n fact which he has or may suffer from the agency action. It i s clear that such injury i s not confined to physical or economic matters but includes injury 39 to aesthetic conservational or recreational inte r e s t . 35. CEQ guidelines A p r i l 23, 1971. s. 10(e). 36. Natural Resources Defense Council Inc. v. Morton 2 ELR 20029 (D.C. A i r ) The c i r c u i t court affirmed the e a r l i e r d i s t r i c t court in holding that f a i l u r e to adequately discuss alternatives rendered the f i n a l statement inadequate. The defendant had attempted to overcome the inadequacy by preparing an addendum in two days. The fact that the addendum had not been circulated for comment was s u f f i c i e n t to s t r i k e i t down. 37. Administrative Procedure Acts.10, 5 U.S.C. 1702. 38. The arguments are advanced by Anderson, op.cit.,at 16-17 and Yarrington, op.cit.,11-13. 39. This was f i r s t established in Scenic Hudson Preservation Conference v. Federal Power Communication, 1 ELR 20292. - 63 -The injury alleged must be arguable within the zone of interests to be protected by the statute. This requirement highlights the two edged sword effect of NEPA whereby industries have invoked NEPA as a delaying t a c t i c . I t i s clear from the cases that once a p l a i n t i f f has established his standing he may then argue the broader public interest to substantiate his claim. I t i s clear , however, that the broad public interest i s not s u f f i c i e n t to create standing in the absence of the s a t i s f a c t i o n of the two 41 tests enunciated above. In the l i t i g a t e d cases there have been few successful challenges to the standing of c i t i z e n s and c i t i z e n s groups as the federal courts have consistently confirmed the right of c i t i z e n s to invoke NEPA's protections when environmental 42 values are threatened by an agency's f a i l u r e to comply with the Act. The claims made by c i t i z e n s in suits under NEPA have centered on the key areas of the Act which have been so extensively interpreted by the courts. It has been asserted that the government has, or plans, to undertake a major action which requires an impact statement and no such statement has been 40. The f i r s t instance of industry use of NEPA was the case of National Heluim Corporation v. Morton 1 ELR 20157 (D. Kan. 1971). The issue has since become more troublesome and the more recent attempts to use NEPA in this way have been set out i n Anderson,op.eit., 40-44. 41. Sierra Club v. Morton 2 ELR 20192 motion for leave to amend granted 3 ELR 20173 (N.D. Cal 1973). 42. The breadth of locus standi provisions i s i l l u s t r a t e d by SCRAP v. United States 2 ELR 20486 where the students merely alleged used of the forests, streams and mountains. It was held that the fact that s p e c i f i c environmental interests are shared by many 'does not make them less deserving of legal protection through the j u d i c i a l process. 1 - 64 -prepared or i f one has been prepared that i t i s inadequate. There have been a few instances where the claim has been that although the procedural require-ments have been met the agency's decision i s wrong in that they have i l l balanced the environmental effects in t h e i r analysis; t h i s l a t t e r claim i s requesting the courts to judge agency action on the merits - a course not 43 generally taken by the courts in t h e i r role in reviewing agency action. One aspect of the j u d i c i a l process which could have precluded much c i t i z e n l i t i g a t i o n would have been insistence on p l a i n t i f f s meeting stringent bond requirements. However, most courts have imposed minimal bond requirements and many no bonds at a l l . The wide public interest asserted by many p l a i n t i f f s seems to influenced the courts i n t h e i r stance and the a t t i t u d e taken that the public interest w i l l be far more gravely damaged by f a i l u r e of the courts to rigorously and consistently enforce NEPA than by any harm which could possibly r e s u l t from delaying...long enough to resolve the important legal issues presented by this s u i t . E. THE COUNCIL ON ENVIRONMENTAL QUALITY This body, comprised of three within the executive o f f i c e of the President, employs a s t a f f of approximately 75 people of whom only about 20 to 25 are engaged in the impact statement process. 43. Ten courts have gone so far as to adjudge the actual merits of agency decisions although such a course has been advocated by at least one commentator Jay, D.F. "Standing in Environmental Litigation: Let's get to the merits," C a l i f o r n i a Western Law Review, Vol. 10, 1973, 182. s.101 gives some support to the theory that courts have a role in substantive review. 44. Natural Resources Defence Council v. Morton. 2 ELR 20089 (D.D.C. 1971) - 65 -The Council's role i s carried into three areas; promulgation of guidelines, general review of agency procedures, and investigation into s p e c i f i c problems. The Council i s not a reviewing body for the thousands of statements which have been prepared; i t does c o l l e c t the statements but i t s intervention in a p a r t i c u l a r area i s not by way of regulation. It i s not i n the position of an independent Review Board but a general overseer and advisor to the President. In i t s annual Reports the Council assesses the state of the environment and promotes public awareness of environmental issues. The main contribution of the Council in developing procedures under NEPA has been through issuance of guidelines. The 1971 guidelines set up the impact statement process and introduced the concept of draft as well as f i n a l statements. This enabled the consult-ation and comment process envisaged in the act to find meaning. The guide-Tines have often embraced legal interpretations of the various phrases of the act in order to make agency duties more s p e c i f i c . For instance i n dealing with "major federal actions s i g n i f i c a n t l y affecting the quality of the human environment" the guidelines state that agencies should construe the phrase with a view to overall cumulative impact of the action proposed. The guidelines set time l i m i t s for the commenting process of not less than 30 days and further provided that no action could be taken on a proposal 4 less than 90 days after a draft environmental statement had been ci r c u l a t e d . 45. CEQ Guidelines A p r i l 23, 1971,s.10(b). - 66 -The guidelines urged agencies to u t i l i z e the process of public hearings whenever appropriate and to make a draft statement available at least 15 days 46 prior to the hearing. The t h i r d set of guidelines issued on May 16, 1972 was issued in the form of recommendations. Many recommendations related to finding ways to consolidate numbers of impact statements into broader overall reviews. The Council recommended that agencies develop an inventory of effects l i k e l y to be involved in typical actions. The main thrust of the other recommendations dwelt on developing an analysis of alternatives s u f f i c i e n t l y detailed to permit independent and comparative evaluation of environmental considerations and secondly the development of an early notice system by which the decision to prepare an impact statement i s announced as soon as possible. On August 1,1973 new guidelines superseding the previous ones were promulgated and came into effect on January 18, 1974. These guidelines were intended to incorporate much of NEPA's legal evolution in the courts over the past two years and also r e f l e c t experience gained and lessons learned since 1971. 47 The new guidelines r e f l e c t the Council's continuing concern that agencies should attempt to integrate NEPA requirements into t h e i r decision making and 46. Ibid. s. 10(e). 47. Environmental Quality : The Fourth Annual Report of the Council on Environmental Quality 1973,234. - 67 -not tack them on as an a f t e r the fact r a t i o n a l i z a t i o n of agency action. The new guidelines also dwell on the problem of ide n t i f y i n g secondary effects and means of dealing with predictions of secondary consequences p a r t i c u l a r l y in regard to population and energy. The problem of e f f e c t i v e l y ensuring public p a r t i c i p a t i o n in the process also gained extensive attention and the guidelines go so far as to suggest that agencies should automatically send copies of statements to interested public organizations and individuals and to experiment with methods of public input ranging from • informal, unstructured contacts with community and environmental leaders to more formal panels of advisors on NEPA issues or clearing houses for c i t i z e n inputs into the impact statement commenting process.48 F. THE FEDERAL AGENCIES As a l l federal agencies are required to abide by the mandate of NEPA i t i s instructive to look at the response of those agencies to the Act. By examining the way i n which agencies have altered t h e i r procedures in order to f a c i l i t a t e decision making which r e f l e c t s the s p i r i t of the act i t i s possible to adjudge the impact of the l e g i s l a t i o n . It is. not possible to examine the procedure of every agency but for the present purpose i t i s s u f f i c i e n t to 48. Ibid. p. 236. The problems connected with the timely release of information to the public has been of constant concern to CEQ over the past four years. On May 15, 1973 t t issued a memorandum to agencies suggesting that rather than rely on National Technical Information service to meet public requests for draft statements agencies should, on t h e i r own account, make s u f f i c i e n t number available in order to get public input with as l i t t l e delay as possible. 3 : 5 102 Monilor (1973). - 68 -look to some of the changes which have materialized in the processes of the Atomic Energy Commission which can be adjudged as f a i r l y t y p i c a l . The Environmental Protection Agency l i k e other agencies i s required to 49 f i l e environmental impact statements. Unlike other agencies i t has special r e s p o n s i b i l i t i e s to review and comment on other agencies statements. Section 50 309 of the Clean A i r Act creates t h i s duty and further provides that the administrator's comments be made public. I f the administrator finds the impact of the proposed action to be environmentally unsatisfactory he must 51 refer the matter to the Council on Environmental Quality. One commentator has noted that EPA took upon th i s task rather t a r d i l y and that not u n t i l early 1972 did i t publish guidelines and give notice of the a v a i l a b i l i t y of the comments. As EPA review comes more f u l l y into play i t i s apparent that the procedure w i l l give EPA an important opportunity to counterbalance the perceptions of development orientated agencies in t h e i r dealings with the impact statement process. The development of agency procedures can be seen i n the Atomic Energy Commission. In this agency the case of Calvery C l i f f s Coordinating Committee 52 53 v. AEC provides a convenient marker from which to look back then forward. 49. Apart from the exemption applying to i t s water q u a l i t y programs see note 33 i n f r a . 50. The Clean A i r Act 42 U.S.C. 1857 51. Anderson op.cit. , 233 f f . 52. op. cit. 53. This analysis r e l i e s on the account given by Robert A. Purple Senior Environmental Project Manager Director of Licensing U.S. Atomic Energy Commission reprinted i n Proceedings: Workshop on the philosophy of Environmental Impact Assessment in Canada, Environment Protection Board, Winnipeg, October 1973,25-45. 69 -The main concern of AEC i s the licencing of nuclear power plants. AEC's regulatory r e s p o n s i b i l i t y stems from the Atomic Energy Act 1954 which requires the AEC to provide "reasonable assurance that peaceful uses of atomic energy do not result i n undue ri s k s to public health and safety. 1 The licencing procedure commences with the issuance of a construction permit and p r i o r to NEPA the application was primarily concerned with safety matters. After the passage of NEPA the AEC revised i t s procedures to r e f l e c t the NEPA requirements. In addition to safety measures applicants were required to submit environmental reports which were u t i l i z e d by the Commission in preparation of i t s statements under NEPA. The AEC took the position that i t could accept c e r t i f i c a t i o n from states regarding water quality standards and did not have to independently consider them. AEC procedures provided that no environmental issues could be raised at hearings for which the hearing notice was issued prior to March 4, 1971. In 1971 the test of AEC's response to NEPA was made i n the Calverts C l i f f case in which the p l a i n t i f f s contended that the response was inadequate. The court agreed. The court held that non radiological environmental considerations must be examined even i f licencing proceedings are uncontested and that the licencing Board was required to independently evaluate the f i n a l balance among c o n f l i c t i n g factors. Secondly the Commission was required to consider NEPA requirements for a l l f a c i l i t i e s for which permits were granted after 1 January 1970. Thirdly the AEC could not re l y on Water quality c e r t i f i c a t i o n s but must - 70 -make i t s own assessment and f i n a l l y i t must also consider environmental factors for permits issued prior to the passage of NEPA. The AEC responded to the decision by enlarging i t s s t a f f to clear the backlog of reviews required by the decision. I t called a moratorium on licencing for 14 months and amended i t s procedures to adopt the requirements set forth by the court for public involvement and independent assessment. The new procedures have causes the AEC to be "much more conscious of the environment and knowing the degree of scrutiny t h e i r projects w i l l undergo when submitted to the AEC for authorization to proceed they [the u t i l i t i e s ] are making i n i t i a l design decisions that r e f l e c t a sense of environmental values. '55 The case of the AEC i s i l l u s t r a t i v e of many agency responses to NEPA. At f i r s t a timid reordering then a major reorganization as an after the fact reassessment caused by l i t i g a t i o n . It i l l u s t r a t e s how l i t t l e impact NEPA may have made without the forceful intervention of the courts to oversee the changes. G. NEPA TO DATE - PROBLEMS AND PROSPECTS The discussion to date indicates that NEPA has received much attention since i t s enactment. The question to consider now is whether the net benefits have outweighed the net costs of i t s enactment and i t s effects on decision making in the agencies to which i t applies. 54. This part of the decision has been overruled by statute. Federal Water Pollu t i o n Control Act amendments 1972 see note 33 i n f r a . 55. Purple, R.A.,op.ait., 45. - 71 -In dealing with NEPA's c r i t i c s a frequent c r i t i c i s m has been the lack of attention given by reviewing courts to recommendations or reports on 56 proposals for l e g i s l a t i o n and p o l i c i e s . L i t i g a t i o n has concentrated on 'any other federal actions.' As previously discussed the public have been the principal p l a i n t i f f s in court proceedings; i t i s clear that t h e i r actions tend to materialize as the threat to the environment evolves. The focus of t h e i r actions i s related to p a r t i c u l a r projects as i t i s not u n t i l a project begins to materialize that the public becomes aware of the inherent threat. I t would seem that lack of awareness precludes public input at the report or policy stage. It has also been suggested that lack of legal remedy 57 would preclude s u i t at t h i s point even i f the information was available. It has been suggested that on the whole statements have tended to be j u s t i f i c a t i o n s of agency projects and have therefore fabricated or over-valued benefits in an attempt to sway the balance. I t has been said that NEPA l i t i g a t i o n has been primarily successful i n stimulating after-the-fact r a t i o n a l i z a t i o n s which are examined less by agency decision-makers than by agency lawyers, whose job i s to ensure that the agency's gg environmental review can survive legal challenge.' 56. Anderson, op.cit., 125-133. He observes that only 118 draft and 45 f i n a l statements concerning proposed l e g i s l a t i o n had been submitted by Novembe 30, 1972, the majority concerned environmentally protective l e g i s l a t i o n . If a l l proposed l e g i s l a t i o n produced impact statements approximately 800 statements would be submitted during each session of Congress. 57. Anderson,op. cit., 129-30 . 58. Ibid., 2 8 8 . - 72 -Some see the only r e s u l t of NEPA being the creation of a; procedural paradise for intervenors who wish to delay progress in the name of environmental protection. 59 The administrative d i f f i c u l t i e s in implementing NEPA have resulted in considerable paperwork, and economic costs as programs have been slowed or halted. Against these d i f f i c u l t i e s one must view some pos i t i v e results of the Act to see a more even picture. The task which NEPA set for the federal agencies was co l o s s a l . It required the agencies to completely r e v i t a l i z e t h e i r procedures to consider facets which hitherto had been outside the i r realm. The process of change i s necessarily a slow one as new perceptions and procedures were adopted. It would seem clear that several positive results can be seen. NEPA has broadened agency decision making i n several ways. A l l agencies have been required to consider environmental matters. This has widened agency mandates in most cases and given them a j u r i s d i c t i o n which was not previously present. I t has required agencies to consider alternatives outside of agency missions which generally are outside the agency's power to implement. NEPA has opened the doors of outside scrutiny into agency decision making and created a duty of f u l l disclosure. By requiring agencies to consult with and obtain comments from other agencies prior to preparing the detailed statement and by enabling the public to see and comment upon the draft statements a new dimension has been added to agency procedures. The f u l l disclosure 59. H o i i f i e l d , A . , Chairman of Government Operations Committee, National Journal, 26 February 1972. - 73 -requirements have made agencies more sensitive to public interests and more conscious that they must look closely at t h e i r decision-making procedures i f they are to avoid l i t i g a t i o n . The change i n outlook i s evidenced by new agencies procedures which incorporate these new areas of concern. To date much attention has focused upon projects which were i n the pipeline before the act was proclaimed. The retroactive e f f e c t given to NEPA by j u d i c i a l interpretation had caused part of the backlog and administrative delay. It has even been suggested that the courts have required an impossible 60 task of the agencies in t h i s respect. Because a lead time of at least ten years exists between proposal and project the retroactive aspects w i l l be present f o r several years. In order to mitigate the inequitable consequences of t h i s position and to prevent a narrow perspective developing too early in the planning stage, i t has been suggested that the development of a two t i e r impact statement procedure should be i n v e s t i g a t e d . ^ The two t i e r procedure would involve the development of a broad state-ment on p o l i c i e s on proposals which would be subjected to scrutiny before any commitment to a p a r t i c u l a r project was made. Such a development would serve several useful functions. F i r s t l y i t has been previously noted that the main thrust of review has dealt with projects; that as the public are the major scrutineers they are limited to challenging projects rather than proposals either because of lack 60. Murphy, A.W. , The National Environmental Policy Act and the licencing •process: Environmentalist Magna Carta or Agency Coup de Grace, Columbia Law Review L.R. Vol. 72, 1972 963. 61. Anderson op.cit., at 108, 122, 177, 220. - 74 -of awareness or lack of legal remedy at an e a r l i e r stage. The two tier-system would afford the public an opportunity to state i t s preferences at an early stage of a proposal before any committments were made or alternatives precluded. Secondly the present requirement of the Act that agencies consider alternatives not necessarily within t h e i r j u r i s d i c t i o n while widening the agency focus does i n practice present several problems. The existence of a mission orientated agency presupposes the efficacy of the mission and the perception of those involved with the agency w i l l also r e f l e c t t h i s . The j u d i c i a l interpretation of NEPA requires that agencies not only broaden th e i r perspectives but in many cases the u n r e a l i s t i c requirement that they question the f i r s t principles upon which thei r very existence r e l i e s has been thrust upon them. I t would seem apparent that to select among al t e r n a t i v e s , one must be able to measure th e i r r e l a t i v e merits in terms of some standard or objective, the v a l i d i t y of which i s preseumed. Such a standard or objective represents in i t s e l f a choice among alternatives that has presumable been made at an anterior point i n time perhaps at a higher governmental l e v e l , on the basis of another and more general norm'62 o Proposals for agency action generally f i l t e r through from pre-ordained statutory goals. The agency w i l l not be in a position to compel the acceptance of alternatives or approval by another government agency i f i t should deem another to be more appropriate for the task. Thus i f an agency does reject a project on environmental grounds the matter i s stymied for the agency cannot secure the development or acceptance of the more preferable 62. Cramton, Roger C. and Berg, Richard K. On leading a horse to water: NEPA and the federal bureaucracy, Michigan Law Review, Vol. 7.1 , 1973 511 at 52 - 75 -alternative which i t has i d e n t i f i e d . NEPA does not enable an agency to do this and i t i s c l e a r l y the task of a higher echelon to so dir e c t projects to missions after alternatives have been considered in the broader context. An e a r l i e r assessment at the higher level could achieve this and foreclose the present problem of requiring agencies to question the very principles f o r which they were established. Secondly the present sit u a t i o n which requires agencies to consider alternatives outside t h e i r j u r i s d i c t i o n also involves them in areas outside t h e i r competence. The comment process overcomes this to a degree but the problem of agency perception of their mission makes i t impossible for an agency to consider projects in the same manner as a decision body without limited mission goals. Thirdly the broadened perspective required agencies to increase their technical s t a f f s to employ personnel from diverse d i s c i p l i n e s to achieve an i n t e r d i s c i p l i n a r y team. The i n i t i a l lag in budgeting and appropriations 63 resulted in the f i r s t major recruitments being delayed u n t i l July 1972. Until that date the burden was borne by existing personnel, or by diverting funds from other sources. The two t i e r process would to a degree centralize the data gathering process so that agencies would be able to u t i l i z e this data with the resul t that expertize could be u t i l i z e d more uniformly and at a high standard. The development of the two t i e r system would greatly further the impact of NEPA and reli e v e the agencies from some of the u n r e a l i s t i c matters that have f a l l e n to them. An examination of NEPA at work to date indicates that 63. Ibid. 513. - 76 -i t s greatest impact has been in the areas where an effective action forcing mechanism exists i . e . the c i t i z e n s u i t . The areas of the Statute obscured from action forcing mechanisms have remained r e l a t i v e l y dormant with the result that the Congress has been able to side step i t s responsibil-i t i e s in a manner not permitted of i t s agencies. It i s to be hoped that the Congress w i l l review i t s role and take upon i t s e l f a more responsive attitude which w i l l be reflected i n the opening;of i t s decision making to the same scrutiny as that of i t s agencies. Despite some d i f f i c u l t i e s in working with NEPA i t has c l e a r l y had a considerable impact in the four years of i t s existence. I t i s also clear that the statute must be read in the context of the i n s t i t u t i o n s which form the backdrop against which i t operates. Whether NEPA as i t stands could be transplanted successfully into a Parliamentary system depends on the workings of the system with which i t would have to interact. A comparative analysis of the features of the Congressional and Parliamentary systems i s the subject of the next chapter. - 77 -CHAPTER IV. ENVIRONMENTAL ASSESSMENT LEGISLATION AND THE PARLIAMENTARY SYSTEM A. INTRODUCTION The l a s t Chapter i l l u s t r a t e s that much of the success of NEPA has resulted from the vigorous enforcement of some of i t s provisions by the courts; where the court has not been u t i l i z e d the provisions have had l i t t l e impact. The enactment of a statute i n the same terms as NEPA presents several d i f f i c u l t i e s for the Canadian system of parliamentary government. These d i f f i c u l t i e s can be divided into two categories; procedural and d o c t r i n a l . The former may be le g i s l a t e d out but to attempt to neutralize the l a t t e r i s to ignore some fundamental problems and to attempt to fashion a statute l i k e NEPA into a system where there are basic doctrinal differences provides no solution. B. PROCEDURAL PROBLEMS In the United States the j u r i s d i c t i o n of the courts to intervene i n NEPA actions stems from the Administrative Procedure Act"' which bestows on the courts j u r i s d i c t i o n to review agency decisions where any person has been adversely affected or aggrieved by agency action. The only l i m i t a t i o n s relate to ripeness and exhaustion of administrative remedies. The l a t t e r requirement precludes court intervention, even on a question of j u r i s d i c t i o n 1. 5 U.S.C. 1702 - 78 -u n t i l the agency determination i s f i n a l . Thus the agency i n the f i r s t 2 instance i s the sole judge of i t s own j u r i s d i c t i o n . When agency action i s challenged the basis for the challenge i s one of private r i g h t thus the main remedies of private law are employed namely injunction and declaration. The private rights alleged to be infringed are generally traceable to the Constitution or to statute. By contrast in Canada the j u r i s d i c t i o n of the courts to int e r f e r e in agency determinations i s based on i t s inherent j u r i s d i c t i o n not on statute. The inherent j u r i s d i c t i o n i s exercised through the. perogative writs which are concerned with enforcement of public duties and l i m i t a t i o n of powers. Much less emphasis i s given to the remedies for private rights i . e . declaration and injunction. The j u r i s d i c t i o n of the Canadian courts stems from the courts inherent j u r i s d i c t i o n to oversee the proper performance of public duties or the legal performance of public powers. The court's interest relates more to supervision of public powers than i t does to infringement of private r i g h t s . Of course i t i s also able to ensure the proper exercise of the public function by enforcement of the private r i g h t whenever a private right i s involved. The l i m i t a t i o n on the u t i l i z a t i o n of the remedies of injunction and declaration for the purpose of co n t r o l l i n g government action can be seen in the choice of p l a i n t i f f . I t would appear that the injunction can be sought only by a p l a i n t i f f whose legal rights are at stake and in the absence of a 2. Schwartz, B. and Wade, H.W.R., Legal Control of Government: Administrative Law in Britian and the United States, Clarendon Press, Oxford, 1972, 279. - -.79 -statutory legal right the remedy i s of no avail to a c i t i z e n defending s o l e l y 3 on the ground of public interest. The declaration enables the court merely to declare the legal position of the p l a i n t i f f so that i f he has no legal right which i s affected this remedy 4 w i l l not l i e . This position has, however, been somewhat altered by the recent decision of the Supreme Court of Canada, Thorson v. Attorney General 5 of Canada et. a l . where standing was granted to a taxpayer to seek a declar-ation concerning the c o n s t i t u t i o n a l i t y of the O f f i c i a l Languages Act and the Appropriations Acts providing money to implement i t . Reversing the Court of Appeal,Laskin J. (as he then was) distinguished between statutes which involved prohibitions or r e s t r i c t i o n s on a class who would be p a r t i c u l a r l y affected beyond the public at large and the statutes in issue which because of t h e i r directory provisions affected every person a l i k e . In the l a t t e r case to deny standing to everyone when the Attorney General chose not to intervene would have the effect of immuning a question of c o n s t i t u t i o n a l i t y from j u d i c i a l review.'7 3. Reid, R.F., Administrative Law and Practice, Butterworths, Toronto, 1971. An individual claiming on his own behalf or i n a representative capacity may be unable to claim for injunctions in matters where the Attorney General is constituted the guardian of the public i n t e r e s t , 410. 4. Gregory v. Camden London Borough Council [1966] 1 W.L.R., 899. Where i t was held that a declaration did not l i e at the s u i t of a neighbour who challenged the v a l i d i t y of building regulation. The question was one of rights between the planning authority and the applicant and there was nothing to declare re the neighbour. 5. Appeal heard June 6 and 7, 1973. Judgment pronounced January 22, 1974. (as yet unreported) 6. R.S.C. 1970 C.0-2. 7. op.cit. 18, 19. - 80 -In such circumstances i t would now appear that a p l a i n t i f f would not have to allege that he has been exceptionally prejudiced or s p e c i f i c a l l y affected more than the general public. However, in cases where persons or classes of persons who are more adversely affected than the general public can be i d e n t i f i e d i t would seem that a member of the general public who was not such a person would be too remote to assert locus standi. It would appear that more generous standing i s afforded a p l a i n t i f f 8 seeking one of the prerogative writs. The standing of the p l a i n t i f f rests more on the discretion of the court and recent English cases c l e a r l y indicate a trend toward broadening the standing requirement. There have been at least two instances where standing has been granted to a stranger without any legal right who i s advocating the public interest in seeking an application for 9 10 mandamus. It i s not clear that the Canadian courts are as l i b e r a l . However, the following comment by Laskin J. may indicate that an equally generous position w i l l be followed. I think that the argument for standing in the present case i s f o r t i f i e d by analogy to the cases on c e r t i o r a r i and prohibition which even i n a non constitutional context, have admitted standing in a mere stranger to challenge j u r i s d i c t i o n a l excesses, although the granting of r e l i e f remains purely discretionary!"! . 9. R.v. Metropolitan Police Commissioner, Ex parte Blackburn, [1968] 1 ALL E.R. 764. The application for mandamus did not succeed but the court l e f t open the question of locus standi and did not discuss i t and proceeded to the question of the Commissioner's duty. R. v. Metropolitan Police Commissioner, Ex parte Blackburn and another (no. 3), [1973] 1 ^LL E.R..324. Although the application for mandamus was dismissed the question of locus standi of the p l a i n t i f f was not raised at a l l . Each of the three judges commented on the public service done by the p l a i n t i f f in bringing attention to the issue. 10. It would appear however that Canadian courts have as yet been unprepared to go t h i s f a r . R. v. Ontario Labour Relations Board [1963] 2 OR 301 appears to represent the law. 11. Thorson v. Attorney General of Canada et.al. op.cit-. at 19. - 81 -The a v a i l a b i l i t y of mandamus and c e r t i o r a r i even given that locus standi presents no d i f f i c u l t y , are s t i l l of limited value in most cases. Mandamus depends on the existence of a duty in a public o f f i c i a l ; t h i s duty can be imposed by statute but the scope of this duty v / i l l be the c r u c i a l factor in most review proceedings. C e r t i o r a r i l i e s to compel a public o f f i c i a l to exercise his powers within t h e i r legal l i m i t s . Where power i s discretionary the e f f e c t i v e review w i l l depend upon the a b i l i t y to pinpoint the scope of the exercise. Often the reasons for decision w i l l disclose an u l t r a vires act which would not be open to attack i n the absence of reasons. The summary nature of prerogrative procedures, where evidence i s by a f f i d a v i t , often covers up disputes which would become apparent i f discovery of documents and interrogatories were permitted. In order for the court to be able to review on c e r t i o r a r i the statute would have to ensure that the powers of agencies were c l e a r l y spelt out" as well as the need for reasons, and that the information available to the agency was also available to the p l a i n t i f f . The problem of the a v a i l a b i l i t y of information highlights another difference between the Canadian and American systems. 12 Barnard v. National Dock Labour Board [1953] 2 Q.B. 18. This was a case involving a declaratory judgment. It does however i l l u s t r a t e the point in that i f discovery of documents had not been permitted the c r u c i a l point which caused the case to be decided i n the p l a i n t i f f ' s favour. -82-13 The Freedom of Information Act 1966 in the United States confers on the c i t i z e n a l e g a l l y enforceable ri g h t of access to government f i l e s and documents. It places the burden on the government to j u s t i f y the with-holding of documents when they have been requested and gives to anyone who i s improperly denied access the right to injunctive r e l i e f . There i s no equivalent l e g i s l a t i o n in Canada and secrecy i s generally 14 the rule. There are several statutes at the Federal level which provide that the government may require information from various persons but there i s no provision in any statutes which require the government to make i t s information K T 15 publ i c . Governments feel that they are more able to use the information which they have than i s the public and that they are competent to decide which information the public should and should not have... The investigations following leaks have re-enforced the suggestions that the Federal C i v i l Servants take the oath of o f f i c e and secrecy very seriously. It i s disturbing that " o f f i c e " and "secrecy" are almost synonymous.16 In general secrecy i s the rule so that rather than some information remaining secret the r e s u l t i s that a l l information remains secret unless the Minister expressly approves i t s release. The burden that t h i s practice would 13. 5. U.S.C. 552 14. The Problem of secrecy in government has been examined by Abel, A., "Administrative Secrecy", in Canadian Public Administration Vol. I I , No. 4, (1968) 440. Knight, K.W., "Administrative Secrecy and M i n i s t e r i a l Responsibility", in Canadian Journal of Economics and P o l i t i c a l Science, Vol. 28, No. 1, (1962) 114. 15. The Clear A i r Act, SC. 1971 C 47 The Fisheries Act, RSC 1970 C F-14 Canada Water Act, RSC 1970 C 5 A r c t i c Waters Pollution Prevention Act. RSC 1970 C 2. 16. Thompson Dixon the Scientist,"The C i v i l Servant and Public P a r t i c i p a t i o n " in Ask the People. CC. Morley (Ed.) Westwater Research Centre and En-vironment Canada,1972. _ 83 _ place on a potential p l a i n t i f f in a NEPA action would be enormous. I t would therefore be necessary to review the problem of government secrecy. Given that a p l a i n t i f f has the necessary locus standi and can acquire the information i t must be remembered that the prerogative writs are designed as a means of review of agency j u r i s d i c t i o n ; the court review i s not an appeal in which the merits or wisdom of decisions can be argued. Review is merely a means of exercising control over l e g a l i t y of action; i t i s much more limited in scope than the review process which a person i n the United States who i s aggrieved by agency action i s e n t i t l e d to as of r i g h t J ' 7 An appeal amounts to a general review of a l l matters leading to the question whether the appeal court agrees with what was done or decided. The appeal court i s thus free to consider the weight of evidence (not j u s t whether there was any) and the rightness or wrongness in fact or law of a l l decisions made and to substitute i t s own opinion on any one of these points should i t d i f f e r with the tribunal.18 In c e r t i o r a r i proceedings the sole question i s whether the agency or tribunal acted within i t s j u r i s d i c t i o n . If the evidence shows that i t did then the matter i s at an end and the rightness or wrongness of i t s decision i s not a question with which the court i s concerned. I t can therefore be seen that the use of the prerogative writs concerned only with j u r i s d i c t i o n a l l i m i t s on exercise of public duty or powers i s a rather d i f f e r e n t and more limited j u d i c i a l function than that given to the United States courts by 17. The Administrative Procedure Act S10. (e) scope of review covers a l l questions of law and involves review of the entire record. 18. Reid, op.cit. , 335. - 84 -the Administrative Procedure Act. Another procedural problem involves the limited scope for class actions in Canada compared with the United S t a t e s . ^ If a p l a i n t i f f with the necessary locus standi to seek injunction can be found the question of bonds for preliminary injunctions may prove pr o h i b i t i v e to most l i t i g a n t s , as 20 does the cost of the l i t i g a t i o n i t s e l f . These procedural differences were recognized by the Canadian Bar Association which resolved at i t s annual meeting in September 1973: That the Canadian Bar Association supports public p a r t i c i p a t i o n in the planning and approval of projects that have a s i g n i f i c a n t environmental impact and in the enforcement of regulations designed to protect the environment and recommends that: (a) every project having s i g n i f i c a n t environmental impact be preceded by an environmental impact study, paid for by the proponent of the project and other information obtained through public funds be made available to the public; and 19. In the United States class actions are governed by the revised Federal Rules of C i v i l Procedure 1966 Rule 23 which provides that a class action i s maintainable where the class i s so numerous that joinder of a l l members i s impracticable, there are questions of law or f a c t common to a l l , claims or defences are typical and the representative parties f a i r l y adequately protect the interest of the class. 20. The problem of legal costs i s discussed by Fraser J.A. and Anthony R.J. in " L i t i g a t i n g Environment Matters: A survey.of the Problem", i n Ask the People, op.cit. , 98-99. A good example is provided by the Ontario case of Green v. The Queen i n Right of the Province of Ontario, e t . a l . [1973] 2 O.R. 396 where the costs to the unsuccessful p l a i n t i f f have be estimated at $4000. This i s quoted in E s t r i n , D. and Swaigen, J. Environment on Trial, Toronto, 1974, 320. - 85 " (b) any individual or groups have the status to object to any such project and that upon such objection, a mandatory public hearing be held before a government approval or licence i s granted; and (c) individual or groups, with the leave of the court, on his or on t h e i r own behalf or on behalf of the public have the status before a l l courts or administrative tribunals to review such project or enforce any governmental regulation without 2] demonstrating a special interest or damage. If transmitted into appropriate l e g i s l a t i o n such a resolution would solve the d i f f i c u l t y of locus standi, remove the need to r e l y on prerogative w r i t s ; remove the l i m i t a t i o n s on class actions and make availab l e informa-t i o n to the public. If these and the other procedural d i f f i c u l t i e s were l e g i s l a t e d out of existence does a statute l i k e NEPA f i t into the scheme of parliamentary government and does i t s form give Canadian courts the material necessary to bring forth the response which has taken place i n the United States? These questions involve a study of the nature of l e g i s l a t i o n and the nature of statutory interpretation i n Canada. C. THE DOCTRINAL ISSUES There are three branches of government in both'the United States and Canada. The functions represented by these branches are the l e g i s l a t u r e whose function i t i s to make the laws, the executive whose function i t i s 21. quoted from Canadian Environmental Law News, Vol. I I . , No. 5, October 1973, 127. - 8 5 -to carry out the laws and the j u d i c i a r y whose function i t i s to interpret and enforce the laws. The A r t i c l e s of the American Constitution embrace the concept of separation of these powers. One commentator expresses i t thus: It has long been recognized by legal scholars that the basic forms of American government r e f l e c t England at the close of the 17th century rather than England of 1776. The d i s t i n c t i o n i s c r i t i c a l because while we adopted the Whig p r i n c i p l e of l e g i s l a t i v e supremacy for policy determination, we rejected the merging of l e g i s l a t i v e , j u d i c i a l and executive power that Hal pole accomplished in the 18th century England and that s t i f l e s the Mother of Parliaments to t h i s day. Instead we kept to the older Whig p r i n c i p l e of the independence of the common law and an independent j u d i c i a r y as the interpreters of Constitutional law. ^2 Whilst one may not agree that the English parliament has been s t i f l e d by her system i t i s clear that the American doctrine of separation of powers has resulted in l e g i s l a t i o n d i f f e r e n t in nature from that enacted by Parliaments where executive and l e g i s l a t i v e functions have been merged. The Canadian government l i k e the English government has an executive which represents the majority i n the l e g i s l a t u r e . Thus the l e g i s l a t i o n of the Canadian Parliament i s the resu l t of the w i l l of the Executive who is.-supported by a majority in the Parliament. In contrast the United States Congress may enact l e g i s l a t i o n which i s opposed by the Executive; such a si t u a t i o n i s not possible in the Canadian system. In Canada l e g i s l a t i o n commences i n government departments; a draft i s 22. Haefele, E., Representative Government and Environmental Management, published for Resources for the Future by The John Hopkins Press, Baltimore, 1974, 5 . submitted to Cabinet and after obtaining Cabinet approval the b i l l goes to 23 Parliamentary Counsel. When the b i l l i s introduced to the House i t i s done so with the knowledge of Cabinet's approval and as explained in Chapter II the principles of Cabinet government v i r t u a l l y ensure that the b i l l w i l l pass into law with the vote of the majority party. Any balancing of competing demands i s attended to in the secrecy of the Cabinet and generally the competing demands are those defined by the majority party not by the opposition. The la t t e r ' s role i s limited to c r i t i c i s m i n the House. In the face of a government majority t h i s c r i t i c i s m i s not a strong factor in influencing the content of l e g i s l a t i o n . In the United States the Executive i s quite separate from Congress so that "neither the President nor any member of his Cabinet can s i t i n the le g i s l a t u r e . The le g i s l a t u r e i s cut off from any direct access to the information and experience that the executive accumulates and the executive cannot participate d i r e c t l y in the framing and passing o f " l e g i s l a t i o n . " 2 4 With no counterpart to the theory of Cabinet r e s p o n s i b i l i t y and with much weaker party cohesion the American system of l e g i s l a t i o n gives more opportunity for accomodating c o n f l i c t i n g demands and interests in broad policy statements acceptable to diverse interests. 23. Driedger, E.A., The -Composition of Legislation, Queen's P r i n t e r , Ottawa, 1957, x v i i - x v i i i . 24. Corry, J.A. and Hodgetts, J.E., Democratic Government and Politics, University of Toronto Press, Third Edn., reprinted 1964, 334. •• 88 -Legislation i s introduced to Congress by means of standing committees. There are standing committees for each of the important recurring subjects of l e g i s l a t i o n . Each committee comprises members representing the parties 25 in the proportion that each party i s represented i n the House. Although a majority for one party i s assured in each committee there i s no strong party cohesion on the l i n e s apparent in the Canadian parliament. Because l e g i s l a 1 tion i s prepared by a committee representing a l l parties and because individual members in the House are not constrained by party lines i t follows that l e g i s l a t i o n w i l l have to r e f l e c t more diverse interests in the American system than in the Canadian. It also follows that because the Executive i s not represented i n the l e g i s l a t i v e process i t may be possible that Congress w i l l enact laws not popular with the Executive; t h i s i s not possible i n a parliamentary system. In the parliamentary system a degree of control of the executive i s maintained through the l e g i s l a t u r e to an extent not possible in the Presidential system. The extensive regulatory and administrative functions of government which have multiplied since the second world war have resulted i n substantial delegation of pov/ers from l e g i s l a t u r e to executive. The aggrandisement of the Executive through administrative tasks has occurred in both countries. The p r i n c i p l e of m i n i s t e r i a l r e s p o n s i b i l i t y implies that a Minister of the Crown i s answerable i n Parliament f o r the acts of his department. Thus the fusion of executive and l e g i s l a t i v e functions was intended as the means' of c o n t r o l l i n g the departments of the administration through m i n i s t e r i a l 25. Ibid., 199. 89 -accountability i n the House. As government a c t i v i t y has increased the f e a s i b i l i t y of maintaining that the Minister i s responsible for the acts of his department has become somewhat strained. Nonetheless i t would seem that the p o s s i b i l i t y of being questioned in the House i s a powerful r e s t r a i n t on maladministration. The l i n k between executive and l e g i s l a t u r e as a check-ing device also e n t a i l s that the role of the courts i s to ensure that the executive acts within the powers given to i t by the l e g i s l a t u r e . As a check on the manner of exercise of powers i s provided (at least i n theory) by the l e g i s l a t u r e i t has never been thoughta proper role for the j u d i c i a r y to interfere with the manner in which powers were exercised so long as they were within the legal l i m i t s of authority. By contrast the separation of powers in the United States makes the agencies of the Executive quite independent of the l e g i s l a t u r e . B a s i c a l l y the administrative processes of the United States government are ordered by ten departments in the Executive. These departments are subdivided into agencies and bureaux. The Congress l e g i s l a t e s by pronouncing broad policy objectives and the executive uses i t s administrative processes to expound 26 those objectives i n innumerable rule and regulations. The delegation of rule making to independent agencies raised problems concerning control of agency action or inaction. The independence of agencies in rule making led eventually to the enactment of the Administrative Procedure Act which regulates agency rule making functions and prescribes the procedures to be 27 followed. I t applied a l i k e to formal and informal procedures and rules •26. Ibid., 518. 27. The rule making procedures of the Administrative Procedure Act do not extend to interpretative rules. - 90 -and provides the l i n k to enable the j u d i c i a r y to control agency action which in the absence of statute would be limited to constitutional issues. Mind-fu l of the p r o l i f e r a t i o n of agency regulation the courts have taken the role of overseer in a very positive manner. Although both Canadian and United States courts are concerned with j u r i s d i c t i o n a l questions the parliamentary system with i t s concept of minis-t e r i a l r e s p o n s i b i l i t y and the fusion of executive and l e g i s l a t i v e functions appears to give the courts a more r e s t r i c t i v e role than the courts of the Congressional system where l e g i s l a t i v e and executive functions are separate. The structure of government would also appear to influence the nature df the l e g i s l a t i o n which i s enacted in that l e g i s l a t i o n of the Congress r e f l e c t s somewhat d i f f e r e n t influences from i t s counterpart in the Parliamentary system. NEPA serves as an example of the nature of l e g i s l a t i o n enacted by the Congress. Part of T i t l e 1 of that Act i s a declaration of national policy which enunciates the purposes of the l e g i s l a t i o n . In so f a r as T i t l e 1 relates to the federal agencies i t sets f o r t h , i n very .broad terms, what Congress envisaged that agencies needed to do so as to implement the policy set forth i n the T i t l e 1. Generally l e g i s l a t i o n from the Canadian parliament i s cast i n d i f f e r e n t form. Preambles stating or purporting to state the general objects or purposes of statutes are rarely seen i n modern Canadian l e g i s l a t i o n . I t has been observed that they are - 91 -used i n statutes dealing with a subject matter that i s normally local and therefore within provincial j u r i s d i c t i o n , but bv reason of exceptional circumstances has become of national concern and therefore within the j u r i s d i c t i o n of Parliament.- Trie purpose of the preamble i s to re c i t e the exceptional circumstances. 2 8 The same wr i t e r observes that a general statement of purposes i s "hardly h e l p f u l " in interpretation and i f the preamble i s intended to have legal a f f e c t i t should be inserted i n the Act i t s e l f and i f not i t should be 29 r e s t r i c t e d to insertion in the minister's speech when the B i l l i s introduced. I t w i l l be recalled from previous discussion that American courts have been aided by the declaration of national policy i n T i t l e 1 of NEPA which sets forth the purposes of the Act. I t appears doubtful that a s i m i l a r provision would receive any attention by Canadian courts. The substantive sections of statutes f i r s t l y set up the administrative machinery necessary to outline the framework f o r action and secondly set forth the rules which w i l l govern the machinery. I t can be envisaged that Parliament could create an independent body of the nature of the Council on Environmental Quality and i t could also make provision for a l l departments to i n i t i a t e procedures for assessing environmental impact. The cr u c i a l part of the Act however i s that which sets forth the rules which w i l l govern the new procedures. Here the h a i r l i n e cracks which divide the l e g i s l a t i v e and administrative tasks begin to appear. 28. ' Driedger op.cit. , 93. Canada Water Act, RSC 1970, C5 preamble i l l u s t r a t e s t h i s w e l l . 29. Ibid. 95. I t should be noted, however, that the Acts Interpretation Act declares that the preamble i s part of the Act. - 9 2 -The general practice i s for the l e g i s l a t u r e to delegate to the executive the tasks related to rule making. This i s either done by leaving discretions to make regulations to a Minister or to Order in Council. I t is t h i s v i t a l stage which d i f f e r s markedly in result from the American counterpart. NEPA provides for the CEO to implement guidelines for agency compliance with the purposes of the Act. Guidelines are informal procedural rules which, in the United States, are binding upon agency action in the same manner as regulations or other forms of delegated l e g i s l a t i o n . In Canada informal administrative guidelines, policy statements and departmental memorandums have been treated as administrative acts outside the purview of j u d i c i a l control. To enact l e g i s l a t i o n in Canada which provided for the d e t a i l s of assessment procedures to be set forth in guidelines would not r e s u l t i n the same degree of j u d i c i a l control which exists i n the United States. The previous chapter i l l u s t r a t e d that the success of NEPA i n changing the decision making practices of agencies has been largely dependent upon the a v a i l a b i l i t y of the court as a forum to require s t r i c t compliance. The court has framed i t s requirements by reference not only to the terms of the statute but also the guidelines which have been promulgated by the CEQ. As i t i s unclear that a Canadian statute which set up provision f o r guidelines would give the court power to enforce guidelines a statute in the form of NEPA would not give the court as detailed role as i t s United States counterpart. - 93 -The l e g i s l a t i o n necessary to produce the same result in the Parliamentary system may have to be caste in form dif f e r e n t from NEPA. D. THE PROBLEMS DEFINED It i s possible however for the statute to c l a r i f y the rules which would be necessary to ensure that the policy would be e f f e c t i v e l y enforced. This could be achieved by substantially delineating the discretionary powers l e f t to the executive and for the Parliament to c l e a r l y set forth the duties incumbant on agencies and the rights conferred on c i t i z e n s to see those duties adhered to. The problem of determining which matters are substantial and in need of statutory enactment and which are merely procedural i s one which too often Parliament i s w i l l i n g to abdicate to the Executive; one writer has noted that by withdrawing from Parliamentary consideration a l l matters save the need for power such a B i l l c l e a r l y does not permit the representative body to function in the way i t i s f i t t e d . 30 In circumstances requiring l e g i s l a t i o n to improve departmental decision making i t would seem t r i t e to emphasize the indadequacy of l e g i s l a t i o n which required the agencies to improve t h e i r decision making by s e l f regulation. Legislation must incorporate provisions for enforceable procedural duties to prepare impact statements, to hold public hearings, to make information available and confer a right in any interested person to ensure that the procedural requirements are met. 30. G r i f f i t h , J.A.G./The Place of Parliament i n the Legi s l a t i v e Process-'" Modern Law Review, Vol. 14, 1951, 279 at 296. - 94 In many of the tasks of modern government the l e g i s l a t u r e has been the instrument to set up the framework for action; the action to be taken i s generally l e f t to the Executive and i s not spelt out by the l e g i s l a t u r e . The problem posed by the need to improve agency decision making processes highlights the inadequacy of this mode of general l e g i s l a t i o n to solve the problem. In requiring improved decision making procedures the l e g i s l a t u r e i s not f u l f i l l i n g i t s customary function of stating a purpose, setting up the machinery and l e t t i n g the departments decide how the purpose i s to be f u l -f i l l e d . It i s saying that the agencies already established are not proceeding in the manner now thought prudent; that the s e l f regulation permitted i n the past i s not f u l f i l l i n g the purposes now intended and rea l i z e d . The purpose therefore of l e g i s l a t i o n to regulate decision making procedures i s to regulate the part of government a c t i v i t y hitherto permitted to be dealt with by executive action. For the Parliament to set up a workable procedure i t cannot shirk the r e s p o n s i b i l i t y of stating the manner in which decision making i s to proceed. To say that environmental consider-ations w i l l be an integral part of agency decision making and to leave the procedures to Order in Council i s at the same time saying both t h i s i s what we want and also saying we do not know what we want. Because the Executive and the Legislature are fused the f a i l u r e of Parliament to c l e a r l y express i t s e l f w i l l make any proposal i n e f f e c t u a l . In the United States Congress sets f o r t h i t s policy and directs the Executive to implement i t . The Canadian Parliament, because of the fusion of Executive and Legislature, cannot rely on this process and the l e g i s l a t u r e must decide what w i l l be required of agencies and not relegate t h i s back to the Executive. If procedures are to - 95 -be adopted the standards have to be decided upon and guarantees have to be stipulated which w i l l ensure that the procedural requirements are followed. In the United States the courts have, i n many cases, answered the policy questions which Congress l e f t vague or the CEQ f a i l e d to specify. The search fo r congressional intent through l e g i s l a t i v e history and broad statements of policy i s not a course followed by Canadian courts who, given the task of interpretation confine themselves to seeking the meaning of 31 statutes through the words which Parliament has spoken. It would seem apparent that there w i l l be some matters which w i l l be couched i n discretionary terms but i t i s very clear that i n t h i s instance the entire problem cannot be l e f t to the Executive to make ( i f i t w i l l ) f l e x i b l e rules and guidelines. Half the problem i s to cut back unnecessary discretionary power. The other half i s to find e f f e c t i v e ways to control necessary discretionary power. 32 In order to seek solutions to the former part the l e g i s l a t i o n w i l l need to set out the procedures to be followed by a l l departments i n assessing environmental issues. These requirements w i l l encompass not merely the requirement for assessment procedures but also the requirements of openness and a v a i l a b i l i t y of information. 31. I t has been suggested that courts in the United States have tended to be more concerned with policy because of th e i r concern with constitutional matters. The Interpretation of Statutes. Law Commission Report, H.M.S.O., No. 21, para. 18. 32. Davis, K.C., Discretionary Justice: A Preliminary Study, Louisiana State University Press, 1969, 51. Openness i s the natural enemy of arbitrariness and a natural a l l y i n the f i g h t against i n j u s t i c e . When plans and p o l i c i e s and rules are kept secret as through confidential instructions to s t a f f s , private parties are prevented from checking arbitrary or unintended departures from them...the difference between a set of precedents and a set of open precendents i s enormous. ^3 The concept of openness entails that information r e l a t i n g to decisions to proceed w i l l be available to interested persons together with reasons. Recognizing that one of the most r e l i a b l e guides to making social choices i s to broaden the decision base the statute w i l l provide ample opportunity for the public to participate i n the deliberations and for any interested person to test procedural compliance with the statute in a court of law. The l a t t e r problem of c o n t r o l l i n g necessary discretionary power w i l l in large be a l l e v i a t e d by the requirement of openness. Any procedural statute w i l l necessarily involve much deta i l which can only evolve as situations present themselves. There w i l l be questions such as defining what constitutes s i g n i f i c a n t environmental impact which w i l l not lend to d e f i n i t i v e answers and can only be c l a r i f i e d as they a r i s e . I t would seem that the statute can ensure that when such questions do arise they w i l l do so i n the broadest forum of public interest possible and not on the desk of a minor o f f i c i a l . Where discretionary power i s deemed necessary the problem of control of discretions s t i l l remains to be dealt with. While regulations are required 34 to be l a i d before Parliament and are published which ensures some degree of both control and accountability there are many forms of rule making which do 33: 'ibid. , 98 34. Regulations Act. RSC 1970, C 235, s.6 and s.7. _ 9 7 -not require publication such as guidelines and m i n i s t e r i a l orders. Where discretion i s exercised through the media of such procedures the problem of accountability i s obvious. As the delegated powers are further removed to Boards or Commissions the need for review procedures either by an independent Tribunal, a Parliamentary Committee or the j u d i c i a r y becomes more acute. The need f o r an independent Board to provide guidelines, to supervise hearings and perhaps to hear appeals from departmental determinations would seem inevitable. Environmental impact assessment l e g i s l a t i o n w i l l require agencies to revise t h e i r current practices in many ways . As agencies change slowly and sometimes unwillingly the effectiveness w i l l be dependent on clear require-ments which can be enforced. It i s therefore necessary that the Parliament reasserts i t s f u l l powers by providing statutory guarantees of procedural compliance in the body of the statute and does not avoid the v i t a l issues by leaving to the Executive the very problem which has arisen from t h i s practice in the past. BOOKS AND REPORTS BIBLIOGRAPHY Anderson, F.R., NEPA in the Courts. A legal analysis of the National Environmental Policy Act, published for Resources f o r the Future by the John Hopkins Press, Baltimore, 1973. Bauer, R.A. and Gergen, K.J. (Eds.), The Study of Policy Formation, The Free Press, New York, 1968. Brand, J . and Morley, C.G. (Eds.), The Last Bottle of Chianti and a Soft Boiled Egg, Canadian Law and the Environment Workship No. 1. October 7&8 1971, sponsored by Environment Canada and the Agassiz Centre f o r Water Studies, Manitoba, 1972. Braybrooke, D. and Lindblom C , A Strategy of Decision, Free Press, New York, 1963. Caldwell, L.K., Environment: A Challenge for Modern Society, published for the American Museum of Natural History by the Natural History Press, Garden C i t y , New York, 1970. Canadian Environmental Law Association. }Jhite Paper to the people of O~ntario and to their government on environmental impact assessment: submissions concerning the Ministry of Environment Green Paper on Environmental Assessment, Ontario, 1973. Cooley, R.A. and Wandesforde - Smith, G., Congress and the Environment, University of Washington Press, Washington, 1970. Corry, J.A. and Hodgetts, J.E . j Democratic Government and Politics, University of Toronto Press, Toronto,3rd edition (rev.), 1959, reprinted 1964. Davis, K.C, Discretionary Justice: a preliminary study, Louisiana State University Press, Louisiana, 1969. Dawson, R.E.G., The Gover-ament of Canada, revised by Ward, N., University of Toronto Press, Toronto, 4th edition 1963, reprinted 1968. Ditton, R.B. and Goodale, T.L., (Eds.), Environmental Impact Analysis, Philosophy and Methods: proceddings of the conference on Environmental Impact Analysis, Green Bay, Wisconcin, Manuary '4-5, 1972. Doern, G.B. and Aucoin, P. (Eds.), The] Structure of Policy Making in Canada, MacMillan, Toronto, 1971. Driedger, E., The Composition of Legislation, Queen's Pr i n t e r , Ottawa, 1956. - 99 -Environment Canada Its Organization and Objectives, Information Canada, Ottawa, 1971. Environment Canada, Task Force on Environmental Impact Policy and Procedure, Environment Canada, Ottawa, 1972. Environment Protection Board, Proceedings: Workshop on the Philosophy of Environmental Impact Assessment in Canada, Environment Protection Board Manitoba, October, 1973. E s t r i n , D. and Swaigen J . (Eds.), Environment on Trial, a citizen's guide to Ontario environmental law, Canadian Environmental Law Research Foundation, Toronto, 1974. Haefele, E.J., Representative Government and Environmental Management, published for Resources For the Future by the John Hopkins Press, Baltimore, 1973. I l b e r t , C , Legislative Methods and Forms, Claredon Press, Oxford, 1901. J a r r e t t , H. (Ed.) Environmental Quality in a Growing Economy, published for Resources for the Future by the John Hopkins Press, Baltimore, 1966. Kernaghan, W.D.K. (Ed.), Bureaucracy in Canadian Government, Methuen, Toronto, 1969. Kernaghan, W.D.K. and Willms, A.M., (Eds.) Public Administration in Canada: Selected Readings, Methuen, Toronto, 2nd e d i t i o n , 1971. Kneese, A.N. and Bower, B.T., (Eds.) Environmental Quality Analysis, theory . and method in the social sciences. Published f o r Resources For the Future by the John Hopkins Press, Baltimore, 1972. Kruklack, 0., Schultz, R. and Pobihushchy, S., The Canadian Political Process: a Reader. Holt, Rinehart and Winston of Canada Ltd., Toronto, 1970. 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