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Beyond command and control : do voluntary initiatives hold promise for enhanced environmental protection? Parker, David Richard 1996

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BEYOND COMMAND AND CONTROL: DO VOLUNTARY INITIATIVES HOLD PROMISE FOR ENHANCED ENVIRONMENTAL PROTECTION? by DAVID RICHARD PARKER B.B.A., Acadia University, 1981 LL.B., Dalhousie University, 1985 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to/the required standard THE UNIVERSITY OF BRITISH COLUMBIA August 1996 c David Richard Parker, 1996 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of LatJ The University of British Columbia Vancouver, Canada Date 2l Au&UST \9QL . Abstract This thesis studies current trends in environmental regulation that represent a shift away from "command and control" and "end of pipe" regulation to voluntary, cooperative approaches that are focused on pollution prevention. The focus is on the regulation of big industry and in particular mining and metals production. Although experiences in other jurisdictions are considered, the primary focus of this thesis is on British Columbia and Canada. Chapter One sets out the methodology employed in preparing the thesis. Chapter Two examines problems associated with traditional approaches to command and control and end of pipe regulation. Shortcomings in existing regulation are identified. Chapter Three identifies many of the expectations and goals of stakeholders with an interest in environmental protection and sustainable development. Reference is made to the interests of government, environmental non-governmental organizations, and, in particular, the private sector/business community. Chapter Four considers four current initiatives which are representative of a trend toward cooperative, voluntary approaches. Chapter Five addresses two questions: (1) what factors and considerations inherent in the reviewed initiatives increase their chances for success? and; (2) what conditions and parameters need to be present to satisfy society's expectations and optimize environmental protection? In addressing these questions, the author sets out several factors that may be important in achieving successful outcomes from voluntary initiatives. Chapter Six concludes that, if the factors outlined in the thesis are employed, society will move closer to achieving an operable state of interdependence, which is essential if optimal environmental protection is to be realized. However, such a result will depend upon the degree of commitment of stakeholders, and in particular, the private sector. TABLE OF CONTENTS Abstract ii Table of Contents iii Acknowledgement v Chapter One Introduction 1 Chapter Two Critiquing the Command and Control Approach to Environmental Protection 6 2.1 Putting the Problem Into Context 6 2.2 General Comments on Environmental Protection in British Columbia 7 2.3 Environment: A Constitutional Conundrum 12 2.4 Developments in Command and Control 19 2.5 Evaluating Command and Control 27 2.6 Has Command and Control Seen Its Day? 38 Chapter Three The Needs and Expectations of Environmental Protection 41 3.1 Introduction 41 3.2 The Evolving Agenda of Environmental Protection 46 3.3 Governments' Expectations of What Environmental Protection Should Include 48 3.4 Expectations of the Environmental Movement 70 3.5 Expectations of Business Interests 73 3.6 Reconciling Expectations 85 - iii -Chapter Four Environmental Protection Through Cooperative Initiatives 99 4.1 Introduction 99 4.2 The Dutch Covenants - Setting Targets and Gaining Industry Commitments 102 4.3 The Trail Community Lead Task Force 119 4.4 The British Columbia Pollution Prevention Demonstration Projects 129 4.5 The International Lead Management Centre and the Organization for Economic Co-operation and Development 140 Chapter Five Voluntary Initiatives and Society's Expectations 157 5.1 Introduction 157 5.2 Lessons from the Experiences Gained in Voluntary Initiatives 158 Chapter Six Conclusions 176 Bibliography 185 - iv -Acknowledgement For Nicole, her siblings arid their generation. Thanks to my wife Joanna for her support, encouragement and patience and my daughter Nicole for giving me inspiration; to my folks, Dick and Betty for educating me and to David and Sally for making it possible to educate myself further; to Len Manuel, Doug Horswill, and Cominco Ltd. for their support and for allowing me the the opportunities that made this thesis possible; to Walter Kuit and Graham Kenyon, two dedicated environmental managers, for sharing their knowledge and experience; to Keith Low for helping me find what I needed and Beverley Wilson for putting up with me and helping to get this thesis down on paper; to Ian Townsend-Gault for helping me to get into U.B.C., and most of all, to Karin Mickelson for helping me to get out through close support, wise advice and constant encouragement. I could not have done this without you all. David. - v -- 1 -Chapter One Introduction There is a fairly widespread view that "command and control" regulation1 is not the most efficient and effective means to regulate industrial activities that may impact the environment. It is implicit in this view that there must therefore be more effective and efficient methods to protect the environment2. This thesis will focus on one particular regulatory tool and some of its variations: negotiated environmental protection agreements, which may be reflected in either legally binding or voluntary commitments as between a particular entity or industry and a governing body or bodies. Major emphasis will be placed on the relationship between federal and provincial environmental laws and the mining industry in British Columbia. However, reference will be made to other jurisdictions where various forms of environmental performance agreements are being utilized. The approach employed in preparing this thesis incorporates the author's own experiences working in the mining and metals industry as corporate counsel, specializing in "environmental law". As counsel to a mining and metals company and representative of the mining industry and business community on a number of regulatory reform initiatives involving environmental laws, the author has been called upon to assist in developing and 1 "Command and Control" commonly refers to regulation that prescribes standards of conduct and stipulates sanctions that may subject violators to prosecution. 2This thesis will apply the definition of environment set out in the Waste Management Act, S.B.C. 1982, c.41, ss.l(l). "Environment" means the air, land, water and all other external conditions or influences under which man, animals and plants live or are developed. - 2 -advocating business and industry positions that seek to achieve a balance of economic, social and environmental imperatives.3 The author's interest in seeking non-adversarial approaches to environmental protection has evolved from experience gained in private practice where it was observed that a well-crafted partnership agreement forced parties to identify goals, address differences and provide for means to resolve disputes before problems actually arose. The author found that when parties seeking similar goals took the time to negotiate workable terms of reference it was productive and time well spent when compared to other instances where differences of opinion led parties to become adversaries and to litigate. On those occasions, the original goals became less important than winning the suit. In many ways, the protection of the environment requires the creation of a partnership or covenant among all those who cause impacts upon it. This idea touches upon the notion that a state of interdependence exists in regard to both environmental protection and the well-being of society as a whole. Yet, the author's study of environmental law revealed that many regulatory regimes typically utilize prescriptive, command and control approaches that reflect the vestiges of government paternalism that was perhaps more appropriate in a time when the public was not as well educated and informed as it is today. Today, a major 3 The author has participated in regulatory review and stakeholder consultation on several initiatives including the proposed British Columbia Environmental Protection Act; a proposed British Columbia "Environmental Bill of Rights"; Bill 26 - contaminated sites legislation and regulations; a British Columbia Guidelines and Standards Policy; the Canada - British Columbia Harmonization Agreement on Environmental Assessment; and most recently the Organization for Economic Cooperation and Development Lead Risk Reduction Programme. -3 -concern with command and control is that it often leads to adversarial circumstances that fail to optimize circumstances where parties must establish and work towards common goals. However, those studies also revealed that alternative regulatory approaches existed, including a contract model, which contemplated negotiated agreement between the regulator and the regulated. This model appeared to reflect the author's own sense that environmental protection could be enhanced if a framework for cooperative approaches could be established. The pursuit of cooperative means to protect the environment has led the author to examine voluntary initiatives and to consider whether they hold promise as a way to optimize environmental protection. In evaluating what is effective and efficient in terms of tools to protect the environment, this thesis will also make the assumption that the concept of "sustainable development"4 is a beneficial goal. It is important to make this distinction at the outset from arguably extreme interpretations of "most effective and efficient environmental protection" which may go so far as to contemplate a complete prohibition of any form of human interference with the environment. Admittedly, being an industry representative may tend to lead to a "pro-business" bias. In defence to whatever biases may be evident towards economic interests, the author would argue that measures designed to protect the environment must not only take into consideration potential benefits for the environment but also direct and indirect A"Sustainable Development" is a phrase popularized by the World Commission on Environment and Development and is defined as "development which meets the needs of the present without compromising the ability of future generations to meet their own needs." World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987) at 43. - 4 -effects on society, including social and economic impacts.5 The choices that are made in allocating resources to protect the environment have associated opportunity costs that impact resources available to address other needs of society. In the absence of consideration of these impacts, standards of living may decline and potentially undermine general support for environmental protection. Thus, this thesis begins with the assumption that there must be a balancing of interests in order to achieve sustainable development and a workable approach to environmental protection. This thesis seeks first to identify concerns related to the existing regulatory approach to environmental protection. Chapter Two is a critique of what is termed a "traditional approach" to environmental protection: "command and control" regulation. This chapter will highlight developments in command and control and discuss problems that have arisen as a result of this form of regulation. In particular, reference will be made to how developments in law have helped to shape corporate views on environmental protection. Chapter Three focuses on the problem of identifying what "society" wants and expects in terms of environmental protection. This chapter seeks to identify the dominant expectations that have emerged from stakeholders by tracing significant events, particularly in British Columbia, which have helped shape views on environmental protection. Next, this chapter outlines many of the principles, goals, and expectations that interested parties would likely advocate for consideration in voluntary initiatives. 5 This thesis will focus extensively on what, in the author's view, is considered to be a "corporate perspective". Unless otherwise indicated, the opinion's expressed in this thesis are the author's and in no way are to be construed as being the views of Cominco Ltd. or any other organization. -5 -Chapter Four will review several examples of cooperative approaches that call upon industry to enter into commitments with government to achieve mutually agreed upon goals to improve environmental protection. The analysis will centre on four initiatives: the Dutch Covenants, the Trail Community Lead Task Force, the Organization for Economic Cooperation and Development's (OECD) Lead Risk Reduction Programme, and the British Columbia Pollution Prevention Demonstration Project. Chapter Five combines observations from the previous two chapters to determine how far current voluntary initiatives are likely to go in meeting society's expectations in regard to environmental protection. Two questions are asked: (1) What factors and considerations in the reviewed initiatives increase their chances of success? and (2) What conditions and parameters need to be present to satisfy society's expectations and optimize environmental protection? A compendium of recommended components for voluntary initiatives will be suggested. Finally, Chapter Six will present some conclusions on whether cooperative voluntary approaches hold promise to extend society's ability to protect the environment. -6-Chapter Two Critiquing the Command and Control Approach to Environmental Protection 2.1 Putting the Problem Into Context Command and control regulation may be appropriate for some circumstances and activities. The focus of this paper, however, is to consider where other approaches may be better. Specifically, I will question whether it is most suitable to manage the environmental performance of large complex industrial facilities through the use of an adversarial approach, guided by province-wide standards and generic regulations. Reference will be made to the benefits accruing to environmental protection as a result of recent cases that have helped to define standards of environmental performance. A second question for consideration is whether or not the evolution of environmental performance can continue to be enhanced and supported through the traditional approaches of environmental regulation. As stated earlier, the primary focus will be on experience in British Columbia, and in particular, a corporate perspective on that experience. - 7 -2.2 General Comments on Environmental Protection in British Columbia Before proceeding to a critique of command and control regulation per se, it may be useful to step back and attempt to gain a broader perspective by considering some facts concerning the state of the environment in general. On the positive side, British Columbia was recently rated highest among Canadian provinces by the World Wildlife Fund Canada in its evaluation of efforts by provinces to protect wildlife areas.6 In contrast, however, the latest State of Environment Report for British Columbia7 revealed several disturbing trends. On waste generation, British Columbia produces more waste per capita than any other developed country - three times the rate of Sweden. It is estimated that 60% of landfills will be full by the year 2000. Currently, 110,000 tons of hazardous waste are generated each year yet there is no facility in British Columbia for the safe treatment and disposal of hazardous waste. The report states that "although most industrial special wastes are appropriately managed, many small firms and households improperly dispose of pesticides, herbicides, paints, varnishes, cleansers, oil, batteries and disinfectants."8 On energy consumption, British Columbians use about approximately 20% more energy per person than the average Canadian and 600% more than the average Japanese. 6World Wildlife Fund Canada, Endangered Spaces Progress Report 95-96 (Toronto: World Wildlife Fund Canada 1996) 38-39. 7 Ministry of Environment, Lands, and Parks, State of the Environment Report for British Columbia (Victoria: Queen's Printer, 1995). 8 Ibid, at 65. - 8 -With respect to stratospheric ozone depletion, the greatest damage to ozone from British Columbia emissions is from bromine-containing halons used in fire extinguishers. The second largest source of ozone-depleting substances is from car air conditioners. In terms of air quality, smoke is a primary concern in many interior communities. Urban air quality remains a problem resulting from gases such as S02, ozone and H2S, with automobile emissions producing more than half of the ozone-forming pollutants. By and large, these statistics reflect impacts from individuals rather than large point source facilities. However, political and public focus tends to be directed towards, as former Environment Minister Sihota often described them, the "large corporate polluters". This phenomena is hardly surprising. People generally resist blaming themselves for environmental problems. Moreover, if politicians can satisfy public demands for greater environmental protection without impacting individual voters either through user fees, environmental taxes or prohibitions on activities such as wood burning fireplaces in communities, then that is what they are inclined to do. This problem of choosing where to apply resources to address environmental problems is discussed by Stephen Breyer in Breaking the Vicious Circle.9 In his examination, Breyer identified what he referred to as "the vicious circle", which has three elements: public perception, political reaction, and the uncertainties of the regulatory process, all of which reinforce each other. Public perceptions influence political decisions while, conversely, 9 S. Breyer, Breaking the Vicious Circle, Harvard U. Press, Cambridge, Mass. (1993). Breyer, now a Justice of the U.S. Supreme Court, examined the United States federal regulation of substances that are believed to create health risks and attempted to address the issues of how government should deal with such problems and how it ought to determine which substances to regulate and in which order of priority. - 9 -government through press releases of its activities help shape public perception. In turn, both political and public pressures influence bureaucratic responses.10 Breyer pointed out some inherent problems in decision-making associated with setting environmental priorities. The first problem he referred to as "tunnel vision" or the "last 10%". This problem arises when the single-minded pursuit of a goal is carried too far, to the point where it brings more harm than good.11 This occurs when regulatory standards are so stringent that high costs are imposed which do not achieve significant safety benefits. The concern here is that while most contamination can be removed in a reasonable time frame with modest use of resources, an inordinate amount of money may be required to remove the last 10%. For example, consider asbestos, which comes in two varieties - blue and white. Most experts believe that undamaged white asbestos left in place is virtually harmless. Removal is in fact more dangerous than leaving it in place because it disturbs the material, releasing particles and dust. Yet, in the United States, government policies have required complete removal at costs of millions of dollars per theoretical life saved over a 40 year period. Breyer's analysis revealed that this decision is equivalent to requiring automobile manufacturers to install added safety features at an extra $48,000 U.S. per auto in order to save 10 lives annually from death in motor vehicle accidents. Faced with these choices, consumers would almost certainly opt for the higher risk over the higher cost of motor vehicles. 10 Ibid, at 50. 11 Ibid, at 11. -10-The second problem highlighted in Breyer's study concerns random agenda selection. This problem focuses on the way that regulatory agendas are set and how priorities are rationalized. For example, in the United States, there are more than 60,000 substances potentially subject to regulation. Only a few thousand have undergone more than rudimentary toxicity testing. In the United States, 386 substances were recommended for testing under the Toxic Substances Control Act.12 When Justice Breyer's book was published, the United States Environmental Protection Agency had received test results on only six substances. Justice Breyer was unable to confirm the existence of any particular strategy for determining which substances should be tested.13 It is also noteworthy that in terms of ranking program priorities, there are significant differences between how scientific experts rank priorities compared to the general public's view. At the same time, there is no government list that prioritizes health or safety risk to create a rational, overall agenda to maximize attainable safety or minimize-related harms. A third problem identified by Justice Breyer concerned inconsistencies within and among programs and agencies. Agencies use different methods for estimating the effects of their regulations. Also, values that regulators implicitly attach to the saving of a statistical life vary widely from one program or agency to another. At the same time, regulators may ignore the effects of one program's safety or environmental impacts on another. This suggests the need for inter-program coordination.14 12 Toxic Substances Control Act, 15 U.S.C., c.53. 13 Supra, note 9 at 19-20. u Supra, note 9 at 22. An example cited concerned proposed rules in the United States on disposal of sewage sludge designed to save one statistical life every five years. The -11 -Breyer found that the regulatory system's inherent uncertainties make it difficult for bureaucrats to resist political or public efforts to set agendas and manage certain results. Administrative practices, such as default assumptions, which differ between agencies, can result in rule making which appears to be subjective. This makes it easier for special interest groups like non-governmental organizations, to attract political interest to agency decisions. This in turn creates more public interest, which moves the issue to the top of the agency's agenda (random agendas) and create political pressure for a stricter regulatory solution ("tunnel vision"). In response, industry groups may provide effective countervailing political pressure, which may result in anomalous rulings ("inconsistency").15 The net result of "the vicious circle" is that much of the resources available for environmental protection are not being directed to gain the greatest results. The notion that public policy and political will could be driven by pressure from interest groups would not necessarily be a bad thing if they in turn were not driven by tunnel vision. This is particularly problematic when the passion behind the vision is based on inadequate information. Open communication, access to accurate information, and understanding is key to good policy decision making. Yet command and control has created polarity between the very groups who should be working together. Unless attitudes change, such that government, industry and other interested parties are open to discussing environmental problems and issues, then ignorance and ultimately bad decisions on public policy will persist. As will be discussed in the next section, communication and opportunities to proposed solution of incineration was found to likely cause two cancer deaths annually. 15 Supra, note 9 at 50. - 12 -achieve good policy decisions are further complicated by an unclear division of constitutional powers between the federal government and the provinces with respect to protection of the environment. 2.3 Environment: A Constitutional Conundrum In Canada, problems associated with setting the environmental agenda are further complicated by Canada's constitutional arrangement. The conventional view of Canadian constitutional law suggests that at the time of confederation, "the environment" was not regarded as a separate subject matter. As a result, jurisdiction over aspects of "the environment" may rest with the federal government in some cases and with the provinces in others. The main sources of jurisdiction over environment are divided into proprietary powers - powers arising from crown ownership of lands and resources. The second area of powers are derived from those conferred under the Constitution Act, 1867 granting the right to legislate in specified areas. It is also important to note that proprietary and legislative powers are not separate and distinct and thus one order of government must provide accommodation to the other to exercise its rights.16 Generally, the provinces have ownership over all the natural resources located within their boundaries.17 1 6 M. Rankin, "Environmental Regulation and the Changing Canadian Constitutional in G. Thompson, M.L. McConnell, L.B. Huestis, ed., Environmental Law and Business in Canada (Aurora, Ontario: Canada Law Book, 1993) at 32. 1 7 There are exceptions to provincial ownership of lands and resources. In particular, section 108 of the Constitution Act, 1867 grants ownership to the federal government of property listed in Schedule 3 of the Act. The property would include canals, harbours and lands set aside for general public purposes (ie, airport and other transportation facilities). - 13 -Legislative powers of each head of government are set out in sections 91 and 92 of the Constitution Act, 1867. Among the powers conferred on the federal government by the Constitution Act, 1867, authority over sea coast and inland fisheries18 through the Fisheries Act19 is perhaps the one used most often in regard to environmental law. Other significant federal environmental powers can be found under its jurisdiction over trade and commerce,20 inter-provincial transportation,21 navigation and shipping,22and criminal law.23 The federal government may also exert legislative authority pursuant to the residuary power accorded to it in section 91 for actions necessary to ensure peace, order and good government - "POGG". The POGG power may be applied to matters that do not clearly fall under powers specifically granted to either order of government.24 Section 92 of the Constitution Act, 1867 lays out the provincial powers. Those which have been found to apply to environmental matters include powers to make laws in relation to 18 Constitution Act, 1867, subsection 91(12). 1 9 R.S.C. 1985, c. F-14 provides for the protection of fish habitat through prohibitions against the deposit of deleterious substances into waters frequented by fish. 20 Constitution Act, 1867, s. 91(2). 21 Constitution Act, 1867, s.92(10)(a). 2 2 Constitution Act, 1867, s. 91(10). 2 3 Constitution Act, 1867, s. 91(27) 2 4 In R. vs Crown Zellerbach Canada Ltd. (1988) 49 DLR (4th) 161, at 184, Le Dain, J.,for the majority, held that for the national concern doctrine of the peace order and good government power to apply to a matter, " it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution." - 14 -the management and sale of provincial and public lands and resources,25 powers over local works and undertakings, ^property and civil rights within the province,27 and matters of merely local and private nature.28 In addition, amendments to the Constitution Act, 1867 made in 1982 grant exclusive authority to the provinces to pass laws in relation to "development, conservation and management of non-renewable natural resources and forestry resources" and the "development, conservation and management of sites and facilities for the generation and production of electrical energy" within provincial boundaries.29 A major concern of environmental stakeholders, in particular the private sector, is the existence of overlap and duplication of law and regulation as a result of concurrent jurisdiction between the two orders of government. Rankin gives the example of how "a law concerning the pollution of inland waters could be passed by a provincial legislature as a matter coming within the provincial power over the management of public lands; however, an identical law could be enacted by Parliament under its jurisdiction with respect to "fisheries" or even "criminal law", respectively."30 25 Constitution Act, 1867, s.92(5) 26 Constitution Act, 1867, s. 92(10) 27 Constitution Act, 1867, s.92(13) 2 8 Constitution Act, 1867, s.92(16) 2 9 M. Rankin, supra, note 15, at 36, 3 0 Ibid, at 36. - 15 -Concurrency challenges the ability of the federal and provincial governments to cooperate in order to streamline environmental law, maximize efficiency, minimize wasteful resources and create a user-friendly environment. This need for cooperation is most apparent in the area of environmental assessment legislation. In British Columbia, for example, proponents of major projects face the prospect of deciphering and meeting the requirements of two new environmental assessment laws - the Canadian Environmental Assessment Act31 and the British Columbia Environmental Assessment Act.32 Currently, the governments of Canada and British Columbia are working to resolve differences in the two processes and establish a cooperation agreement.33 In instances where compromise cannot be reached, the constitutional doctrine of paramountcy may be applied. The paramountcy doctrine provides that a federal law will override a provincial enactment if the two conflict with each other.34 Another instance where cooperation and communication between the orders of government are required is a consequence of the federal government's power to enter into international treaties and agreements. Often, and particularly in the area of environmental law, the Government of Canada may become a signatory to an international convention that will require the exercise of provincial legislative powers to fulfil the commitments of Canada. 31 Canadian Environment Assessment Act, S.C. 1992, c.37. 3 2 Environmental Assessment Act, S.B.C. 1994, c.35. 3 3 Drafts of the cooperation agreement indicate that the parties are leaning toward a compromise that would apply to circumstances where both orders of government would have an interest or duty to participate in an assessment. This would involve application of the provincial process with federal participation through membership in project committees and panels. 34 Supra, note 15 at 37. - 16-Current examples of this include the Basel Convention35 and the NAFTA side agreement on environmental cooperation.36 In regard to international environmental commitments, it is often an extreme challenge to gain consensus among interested federal ministries let alone their provincial counterparts. Despite what an optimistic citizen might expect, it is more the exception than the rule that relevant ministries openly and cooperatively consult with one another prior to taking positions.37 Factors that contribute to a lack of cooperation and consultation between ministries and orders of government were discussed by Andre Bourassa and Bruce McKean in 'The Greening of Metals"?* These factors, outlined below are consistent with Breyer's observations in The Vicious Circle: 35 Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal, 24 March 1989. 3 6 North American Agreement on Environmental Co-operation, signed by the governments of Canada, Mexico and the United States on 17 December 1992 and 13 August 1993 respectively. 3 7 The author's own experience in this regard pertains to negotiations that took place in a lead up to a proposed Organization for Economic Cooperation and Development -Council Act on lead risk reduction. Representatives of Environment Canada initially moved to form Canada's position with little or no consultation with other interested ministries, including Industry Canada, the Department of Natural Resources and Foreign Affairs. Moreover, consultation with the province was left until late in the process and occurred partially as a result of the insistence of industry representatives. 3 8 A. Bourassa and B. McKean, "The Greening of Metals" (1994) VOL. 10, No.2, World Mineral Notes 5 at 6. - 17 -ignorance - negotiators and policy-makers are not always representative of stakeholder interests either because their competence is limited or they make incorrect assumptions out of ignorance. conviction - stakeholders often "feel very strongly about the correctness of their objectives and the actions taken to achieve those objectives"39, (ie, that the end justifies the means). Conviction, while admirable, may cloud judgement and objectivity leading advocates to "fudge" facts. political imperatives - politicians and governments need to be seen to be doing something to protect the welfare of the people. They tend to react to the greatest perceived need bearing in mind expediency causing the bureaucracy to react and divert attention away from real priorities. bureaucratic imperatives - bureaucracies need to be seen to be doing something relevant to the political imperatives. institutional imperatives - "institutions, such as the OECD or UNEP, constantly need to show results to ensure continued political and financial support for member countries. It is a matter of survival. Thus comes the pressure to avoid recognition of possible errors and ensure successful conclusion to all initiatives."40 3 9 Ibid. wIbid. - 18 -rivalry - in the context of products and substances, if there are restrictions, phase-outs or bans of certain material, others will profit. Producers of alternatives or substitutes may be well placed to influence policy. Rivalry also exists within government and between orders of government such that successful management of issues and problems may ultimately affect the ability of ministries to maintain or expand their sphere of influence. need - methods of conducting business have not always been appropriate and are cited to support the argument for the need to regulate. Thus, the interplay between orders of government can be seen as a consequence of constitutional divisions of power and the exercise of human behaviour. It is useful to bear these factors in mind when attempting to understand and reconcile the interests of the various stakeholder groups with a view to discovering ways and means to achieve greater environmental protection in the most efficient manner at the least cost to society. The major problem in relation to the Canadian constitutional law is that there is no clear allocation of responsibility for environmental matters between the two orders of government, which in turn creates uncertainty and tension among those with an interest at stake. Frequently, the private sector must comply with the requirements of parallel regulatory regimes. Moreover, in the current climate of fiscal restraint and down sizing of government bureaucracies* it is apparent that changes are imminent in the way that governments manage and regulate the environment. While this creates further uncertainty, it also indicates that a window of opportunity may be open to bring about changes in how society regulates - 19 -environmental performance. In the next section, one will consider how environmental laws have impacted corporate behaviour and what difficulties are posed by command and control regulation for both the private and public sector. 2.4 Developments in Command and Control To suggest that command and control regulation may not be the most effective or efficient means to protect the environment is not to say that this form of regulation has not had its successes. Command and control has succeeded in providing a reflection of Canadian society's concern for the environment through the creation of laws that aim to control pollution through the prohibition of polluting activities and the threat of punishment of those persons responsible for violating standards created for the purpose of protecting the environment.41 In the 1980's and early 1990's concern for the environment climbed to the top of the political agenda when political polls indicated that the environment was a major concern of the electorate. As public concern escalated, politicians promised and pushed for greater enforcement of environmental laws. Consequently, prosecutions of corporations and individuals responsible for violating environmental laws increased significantly. 41 Waste Management Act, S.B.C. 1982, c.41, ss.l(l). "Pollution" means the presence in the environment of substances or contaminants that substantially alter or impair the usefulness of the environment. -20-From a corporate perspective, perhaps the most significant cases in Canadian jurisprudence in the area of environmental law are R. v. City of Sault St. Marie42 and R. v. Bata Industries Ltd.43. Sault St. Marie set out the requirements for establishing the defence of due diligence which established that a charge could be successfully defended if it could be shown on the balance of probabilities that the defendant acted with due diligence in relation to the circumstances that were relevant to the alleged violation: "The Defendant must establish on the balance of probabilities that they were duly diligent, that is, they must establish that they exercised all reasonable care by establishing a proper system to prevent the commission of the offence and by taking reasonable steps to ensure the reasonable operation of the system."44 In Sault St. Marie, the court held that persons who are in charge of business activities which may harm the public must promote the observance of regulations designed to avoid that danger. This control may be exercised by supervision or inspection, and improving business methods, or by strongly urging those who may be expected to influence or control activities, to do so in accordance with regulatory requirements. The Bata Shoes case extended the reach of prosecutions for environmental offenses behind the corporate veil and into offices of corporate officers and boards of directors. Moreover, R. vs Bata Shoes has set the standard of due diligence that would likely be applied in most 4 2 R. v. City of Sault Ste. Marie (1978), 85 D.L.R.(3d) 161 at 185. 4 3 R. vs. Bata Industries Ltd. (1992), 7 CELR (N.S.) 245. 44 Ibid, at 185. - 21 -jurisdictions in Canada. It provides a check-list for measuring performance, against which officers and directors liability may be measured: "(a) Did the Board of Directors establish a pollution prevention "system" as indicated in R. v. City ofSault St. Marie, i.e., was there supervision or inspection? Was there improvement in business methods? Did he exhort those he controlled or influenced? (b) Did each director ensure that the corporate officers have been instructed to set up a system sufficient within the terms and practices of its industry of ensuring compliance with environmental laws, to ensure that the officers report back periodically to the Board on the operation of the system, and to ensure that the officers are instructed to report any substantial non-compliance to the Board in a timely manner? (c) The directors are responsible for reviewing the environmental compliance reports provided by the officers of the corporation, but are justified in placing reasonable reliance on reports provided to them by corporate officers, consultants, counsel or other informed parties. (d) The directors should substantiate that the officers are promptly addressing environmental concerns brought to their attention by government agencies or other concerned parties, including shareholders. (e) The directors should be aware of the standards of their industry, and other industries which deal with similar environmental pollutants or risks. (f) The directors should immediately and personally react when they have noticed the system has failed."45 Judge Ormston went on to add that: "Within this general profile, and dependent upon the nature and the structure of the corporate activity, one would hope to find remedial and contingency plans for spills, a system of ongoing environmental audit, training programs, 4 5 Ibid, at 287-288. - 22 -sufficient authority to act and other indices of a proactive environmental policy."46 Although many Canadian businesses had already formalized internal environmental management systems ("EMS"), the Bata Shoes decision was a call to action for those who heard its message to review and ensure the adequacy of their EMS. One would speculate that Bata Shoes decision has been a primary motivation for much of what has occurred in the realm of EMS since that decision was handed down. The advent of Sault St. Marie and Bata Shoes helped establish a clearer understanding of the standards of conduct expected of Canadian businesses in regard to managing their environmental affairs. These cases created goal posts against which businesses could measure their performance. How did performance change? As mentioned earlier, many businesses, particularly larger ones, already had some form of environmental management function. However, Bata Shoes spurred Boards of Directors to review the EMS put in place by their senior management. "Due diligence" has become a mantra of sorts in regard to decisions that may have implications for environmental performance. Consequently, many businesses have now established senior positions specifically charged with accountability and responsibility for environmental performance. In some instances, larger businesses have established corporate environmental committees charged with responsibility for overseeing corporate environmental performance and reporting to Boards of Directors and Chief Executive Officers. Ibid, at 288. -23-Businesses have adopted more systematic approaches to EMS that typically may include several elements focused on environmental policy and leadership, planning and procedures, training, assessment and reporting, emergency preparedness, and research. As a result, activity such as environmental auditing and self assessment, businesses are becoming better able to identify potential problems, determine priorities, and take action. Environmental auditing has been seen as a very important tool to ensure due diligence. It is also recognized that once a problem has been identified, a reasonable plan of action to remedy a situation must be carried out if due diligence is to be maintained. Thus, Sault Ste Marie and Bata Shoes helped define appropriate behaviour in regard to environmental performance which has served to streamline environmental management. These cases have effectively prescribed the standards for environmental performance. While the courts were helping to define acceptable environmental performance, other interests have exerted influence on corporate behaviour. Environmental and local community groups have become increasingly interested in the environmental performance of local industry and have requested information from both the private sector and government. On another front, investors, financial auditors, lending institutions, and others interested in the financial performance of businesses now wish to identify potential environmental liabilities and are keenly interested in determining that adequate measures are in place to ensure environmental performance and identify potentially significant environmental liabilities.47 4 7 Investor interest in environmental performance and potential liabilities may have more to do with the astronomical costs associated with contaminated sites liabilities than penalties associated with violation of pollution control regulations. Regardless, the effect has been to compel businesses to respond to detailed inquiries concerning its environmental - 24 -These relatively recent developments in environmental management have resulted from greater public awareness of environmental concerns and developments in environmental law. The next question one might ask is what these developments have meant for the environment. Suffice it to say that there is now greater awareness than ever before of the impact of industrial development on the environment. Governments, public interest groups and the private sector now publish reports outlining the state of the environment within each of their areas of interest. Canadian jurisprudence has provided some means for evaluating environmental performance in light of societal expectations and technological and human limitations. In terms of what all this means for the environment, however, other questions must be asked, foremost among them - are the laws designed to protect the environment doing just that? Do they provide appropriate and adequate protection? Of those individuals and business entities who contravene laws, what proportion are successfully prosecuted? What is the cost of prosecution and what are the incremental benefits to the environment? To answer these questions, one will begin with an example of a case where proposed enforcement command and control regulation lead to the prosecution of Cominco Ltd., Canada's oldest continually operating mining company, in connection with its Sullivan Mine, located in Kimberley, British Columbia. The facts surrounding this case illustrate how one company is addressing its environmental responsibilities and heeding the principle of law set out in Sault Ste. Marie and Bata Shoes. management. -25 -R. v. Cominco Ltd.4* concerned the prosecution of Cominco resulting from a spill on August 1, 1991 of mine waste water into Mark Creek, a creek which runs through the City of Kimberley. The case involved two charges under the Waste Management Act49 and one charge under the Fisheries Act50. Cominco was charged under the Waste Management Act with introducing or causing waste (mine waste water) to be introduced into Mark Creek and, secondly, failure to comply with a permit issued by the Waste Management Branch, by introducing or causing waste to be introduced into Mark Creek. The Fisheries Act charge concerned the deposit of a deleterious substance into the creek.51 Sullivan Mine has been in operation since 1909, producing lead, zinc and silver concentrates which are shipped for further processing at the company's smelter in Trail. The Sullivan Mine is an extremely large underground operation, at one time being the largest lead-zinc silver mine in the world. The mine workings are underground in a labyrinth of rudimentary tunnels. Ground water filters down and migrates into the mine workings. In former times before the potential affects of acid mine drainage were known, the mine water was pumped out of the mine directly into Mark Creek. However, since 1979, the mine waste water has been pumped through a pipeline which goes through Kimberley along Mark Creek to a grit chamber, 4 8 R. v. Cominco Ltd. (14 April 1993), Kimberley 004714 (B.C.P.C.). 4 9 Supra, note 2. 50 Fisheries Act, R.S.C. 1985, c. F-14. 51 Fisheries Act, s. 36. - 26 -which captures fine particles, then on to a settling pond and a drainage water treatment plant before entering the St. Mary's River. The pipeline is approximately five kilometres long and requires periodic and regular maintenance. One of the normal maintenance practices is a procedure referred to as "pigging the line". This involves putting a cylindrical object in the pipeline, which in turn passes through the line and removes build-up of solids within the line. On August 1,1991, a senior technician was carrying out the procedure when he made a mistake; he forgot to close a valve which resulted in the pig getting stuck which caused the mine water in the line to back up and overflow into the creek. The water discharged for approximately 30 minutes. The authorities were contacted immediately and were on site shortly thereafter. When the authorities arrived at the site that day they did not take any water samples of the mine waste water or the creek. The evidence at trial showed that Cominco had established a procedures manual for the pigging procedure and that in fact, the senior technician who had made the mistake had written the manual and carried out the procedure on numerous occasions. In addition to the manual, a log was kept to record who had received training and when they had received it. Over the course of a two week trial, the Crown proceeded to introduce historical data on mine waste water sampling at the mine. In addition, an impact assessment biologist was used to provide expert evidence about the effects of pollutants on fish and water quality. After all the evidence was heard, the court held that the Crown had failed to make its case. It had failed to provide the necessary water analyses; it failed to provide any information on the water flow rate in the creek; and, it failed to prove what the mine waste water contained. Perhaps even more significant for Cominco's management, the court found that regardless of the evidence, the Company itself had acted with due diligence: - 27 -"If the Crown had been able to prove the charges and I gave full consideration to the similar fact evidence I am satisfied that the defence of all reasonable care and due diligence would have been made out."52 There is more to this story. At the time of the spill, Cominco was completing a $2.3 million diversion of the creek to isolate it from old mine waste dumps. The mine management had established a cooperative working relationship with the local community and had been nominated for an environmental award by the East Kootenay Environment Society for its work on the Mark Creek. In addition, the company had worked hard to establish a cooperative working relationship with regional environment ministry staff. Everyone seemed to agree that the Mark Creek Diversion was an important environmental project and that the Company was doing the right thing. Thus, R. v. Cominco Ltd. illustrates how justice may blindly stumble along and achieve a just result, but not without cost and consternation for the parties involved and others, who may have an interest in the outcome. In the next section, command and control is evaluated in terms of its efficiency and effectiveness. The underlying question is whether or not this approach can continue to enhance and support the evolution of environmental protection. 2.5 Evaluating Command and Control Although in R. v. Cominco Ltd. the legal system worked as intended in the sense that the company was given able to demonstrate that it had acted with due diligence, justice came Supra, note 48 at 16. - 2 8 -at a cost. In terms of financial costs, expense to the company included legal fees exceeding $40,000, plus the expense of having its management and employees tied up in lengthy litigation. Taxpayer costs included the time and salaries of the ministry staff (both Ministry of Environment and the Attorney General's staff), costs of experts, and court staff. In total, it is likely that the financial costs of the case exceeded $100,000. In addition to financial costs, the case had a negative impact on the relationship between the government and the company. When the prosecution commenced, the channels of communication with the ministry were closed as it was made clear to management that anything they might say could be used against them. Moreover, one would speculate that the public, especially the local community closest to the events, saw in the prosecution an unnecessary waste of government and company resources. This perception in turn would tend to strengthen the view that government measures to protect the environment were missing the mark. Certainly, there was no immediate incremental benefit to the environment as a result of the prosecution. However, it is arguable that prosecutions do "keep companies honest". Prosecution for environmental offenses serve as a reminder that there are laws in place and violators risk prosecution. However, as will be suggested later on, there may be better ways to ensure compliance. R v. Cominco Ltd. illustrates some of the problems associated with command and control regulation: it is adversarial in nature, setting parties who should be working towards the same goal - protection of the environment - at odds with each other; it is time consuming and inefficient; it is expensive; and it creates a challenging task for the government to - 2 9 -successfully prosecute a case. It also calls upon courts to become technical experts which in turn makes it necessary to bring in experts to "educate" the judge. These criticisms of command and control regulation will be elaborated upon in greater detail below. Command and control perpetuates an adversarial approach: Command and control pits parties against each other and polarizes their positions. Thus, rather than working in cooperation to enhance environmental performance, government and private sector interests become distrustful and unsympathetic to each other's position - they stop listening to each other; time and resources are directed toward winning a case pertaining to a past event rather than being used to address existing problems. The prospect of an adversarial encounter may in turn result in other detrimental impacts on the environment. Because of the adversarial nature of the system, a party that does harm to the environment may be tempted to "bury" the problem rather than try to work with government agencies to find a solution. It is an inherent flaw in the command and control approach that in many instances a prosecution can only result after the wrong-doer has self-disclosed the problem. In these instances where a spill or discharge is not self-evident, if there is no self disclosure, there is very little possibility that regulators will become aware of the violation. Thus, the perpetuation of an adversarial approach, creates a disincentive to "come clean". Typically, it can be difficult to achieve successful prosecutions: Once it has been disclosed that an apparent violation has occurred, the regulator frequently faces an uphill battle to collect enough evidence to sustain a prosecution. In R. v. Cominco, for example, the court found -30-the Crown's lack of evidence included the analysis of the mine waste water that entered the creek, analysis of the creek water, information on the quantity of mine water released into the creek, and the creek's flow rate on the date of the incident. The lack of this information prevented the crown from proving that "there was harm to the environment or any notion of harm".53 At the same time that the Crown is collecting evidence to support its case, it must also anticipate that the defence will mount a due diligence defence. Therefore the Crown may be forced to attack the defendants normal practices. To do this, the Crown may seek testimony from government employees, who normally work with company personnel, in the hope that they could offer evidence to suggest that the company failed to act reasonably. These circumstances place government regulators in a very difficult position inasmuch as they must continue to work with the company after the trial is over. Thus, the command and control system ignores the human dynamics which are impacted by its operation and fails to take into account the interactions which, day to day, have an important role in achieving environmental performance. The human dynamic should not be overlooked when evaluating command and control or any other method to promote environmental performance. At the end of the day, it is individuals who make decisions that collectively affect the environment. The information that these actors have in hand and the factors that motivate their behaviour should be considered. A regulatory model that is based on an adversarial system creates a dynamic where individuals who can influence environmental performance are not, in fact, working together. Each party may have a different agenda which at one extreme may be to generate 55Supra, note 48 at 15. -31 -the greatest number of prosecutions while at the other, it may be to minimize the cost of complying with environmental laws. Neither of these objectives focuses directly on the task of protecting the environment and maximizing environmental performance. Too much focus on meeting existing standards may ignore local priorities: Enforcement of command and control regulation is driven toward meeting existing environmental standards. A problem with this approach is that performance is measured against predetermined standards instead of focusing on actual local conditions. Each eco-system has its own unique conditions. However, predetermined standards are what apply in law and thus local decision makers - regional offices of government and local managers - are compelled to devote finite resources to meet predetermined standards that may have little bearing on local impacts. This places an even greater limitation on the resources available to go beyond compliance to address the local concerns and issues that are often a much higher priority in the minds of both regional ministry staff and local plant managers and the community at large. The experience of Cominco at its Trail smelting operations provides an example of how traditional approaches to command and control and end of pipe regulation may be at odds with local priorities. Trail Operations is one of the largest metallurgical complexes in the world and is currently celebrating its 100th year of operation. The complex consists of 26 integrated plants, the largest of which are the zinc and lead operations. Currently, there are 13 separate permits for Trail operations authorized under the Waste Management Act. The permits set out standards for maximum discharges to air and water. These permits focus on discharges and incorporate a series of monitoring and reporting requirements. Under the permits, the Trail operations are permitted to make discharges up to limits specified in -32-the permits. In turn, permit fees are levied pursuant to the Waste Management Permit Fees Regulation.54 This regulation sets out fees to be levied against the company based on the quantities of permitted discharges. Under the existing system, ministry staff are evaluated, in part, on the basis of the number of permits that they administer rather than incremental improvements to the environment resulting from their efforts.55 However, in the circumstances of Trail, both operations management and ministry regional staff recognize that environmental protection may be better achieved through means other than what is possible under existing legislation. Consequently, interested parties, including representatives of affected communities have worked together outside the structure of the command and control system to identify and address priorities. Examples of this spirit of cooperation can be found in the Columbia River Integrated Environmental Monitoring Program (CRIEMP) and the Trail Community Lead Program. CRIEMP is a partnership of government agencies (both provincial and federal), industry and municipalities with the objective and mutual interest of developing and implementing a technical monitoring program to assess the environmental status and health of the Columbia River. Program components were developed based on consensus amongst all parties with the objective of achieving a scientifically valid study. All information and conclusions generated by the program are shared with the public. CRIEMP was created in recognition that a credible program to monitor and assess environmental health of the river depended on the cooperation of several interested parties. CRIEMP 5 4 B.C. Reg. 299/92. 5 5 T. Galimberti, Remarks (Environmental Protection Division and Cominco Ltd., British Columbia Pollution Prevention Workshop, Vancouver, 26 March 1996) [unpublished]. - 33 -illustrates a cooperative approach that is the antithesis of the adversarialism found under command and control. The Trail Community Lead Program is another partnership involving Cominco, the provincial environment and health ministries, the City of Trail, union representatives and local parents. The program's objective is to achieve an acceptable level of lead exposure risk for the resident population in Trail. This program could not exist without the cooperation of its participants. Amongst other things, it required cooperation of parents to provide blood samples of their children and for them also to carry out measures to minimize the potential for lead uptake from soils and dust. The company and government provide funding to support blood lead analysis and on-going program development focused on establishing ways and means to minimize risk. Cominco's experience in Trail suggests that means to address the issues of greatest importance to the company, community and government meant finding an alternative to the status quo of measuring performance based on end of pipe standards. The command and control permitting system is difficult to administrate and manage: The examples cited above in relation to the experience of Cominco Ltd. illustrate some of the challenges faced by users of the command and control/pollution control system in British Columbia. This system also creates challenges for those who must administer and manage it. In 1995, the Government of British Columbia commissioned KPMG Consultants to -34-provide an Evaluation of the Waste Management Permit System.56 The KPMG study included interviews with MELP staff and permit holders and completion of a questionnaire to collect information on how the permit system operates. It also sought to identify key issues in relation to the current system and to assess potential impacts of initiatives being created to improve its operation.57 Through the use of the Ministry's WASTE database system that supports the Waste Management Act permit system, KPMG was able to generate some interesting statistics: In the fiscal year 1993/94 the permit system generated $15.3 million in revenues from just under 3,800 permits and 250 approvals. Approximately 2% of the operations with multiple permits generated 98% of the revenue, while 94% of the permits only generated 13% of the revenue. Three sectors (cement and concrete, social services and other, and special waste storage) together generated only 1% of the total revenues, but made up l/3rd of the total permits 5 8 5 6 J. Holdstock, P. Levelton, D. Hagarty, B. Reid, R. Watson, and Glen Dinning, Evaluation of the Waste Management Permit System (Project Report) (Victoria: KPMG, October, 1995). The study included an evaluation and assessment of the Waste Management Permit System in place under the Waste Management Act, followed by one-on-one and group interviews with over 100 environmental staff in the Ministry of Environment, Lands and Parks headquarters and region, focus group sessions with over 150 permit holders and a mail out survey to a sample of over 1200 permit holders. 57 Ibid, at 1. Ibid, at 2 and 46. -35 -The permit system is the primary management vehicle under the Waste Management Act. Currently, there are approximately 3,800 permits in place in British Columbia. In addition, there is a backlog of applications for permits and permit amendments. This backlog has been gradually declining from approximately 1200 in 1991 to 977 applications and amendments outstanding as at May 1, 1995.59 The permit application process begins with the filing of an application which is then categorized as either a "major" or "minor" application in accordance with the Public Notification Regulation.60 Currently, the regulation provides that all new permit applications are considered to be major. Major applications are referred to the federal government for comment as well as other relevant ministries and are advertised in order to provide for public comment. Following this, a site inspection is made and a technical report and draft permit prepared. These are then reviewed by the head of the applicable regional office. Finally, the applicant is provided an opportunity to comment on the draft permit.61 At this point, the applicant and ministry may negotiate some of the provisions of the permits, such as frequency and type of monitoring required. The KPMG study concluded that although the process is relatively straight forward, it is neither efficient nor effective. Their investigations found that the time required to process applications typically took between 6 and 12 months and in some cases much longer. At the 5 9 Ibid, at 23. 6 0 B.C. Reg. 202/94. 61 Ibid, at 26-27. -36-same time, the backlog of applications has remained high since 1991. In addition, the criteria used to evaluate permits was not consistent across all regions. The primary cause of the delays in backlog was believed to be attributed to reduced resources within the ministry.62 The KPMG study also revealed problems with the administration and management of permits once they had been granted. Under the current regulatory regime, there is very little time available to focus on innovation and continuous improvement. Instead, resources are devoted to monitoring permits that utilize standards and criteria that were considered by the ministry participants to be extremely outdated.63 A recent example of the problem of scarce resources surfaced in regard to the staffing of a government/industry Pollution Prevention Demonstration Project. The demonstration projects, which represent a new step in government/industry cooperation are being conducted to test the viability of developing pollution prevention plans for industrial facility. This project will be discussed further in Chapter Four. However, in regard to the problem of scarce ministry resources, the demonstration projects are an example of the problems facing the ministry. The Pollution Prevention Demonstration Project requires participation by ministry staff in Victoria and in each of the regions where demonstrations projects are taking place. Briefly, each of the participating companies have selected a pilot project facility which will undergo an environmental review using a set of pollution prevention criteria, stakeholder consultation and development of a Pollution Prevention Plan under the oversight of plant and ministry 6 2 Ibid, at 28. It should be noted, however, that the backlog has been an ongoing problem that persisted when the Ministry had its largest budgets and staffing. 6 3 Ibid, at 56. -37-staff. Initially, regional staff expressed concern that they did not have sufficient resources to participate in the program and were already over extended in regard to the management of the current permitting system. One would also surmise that some ministry staff may have felt intimidated by the prospect of applying a new approach to environmental management that was a major departure from the traditional one upon which they have become accustomed and were evaluated against. As stated earlier, regional ministry staff are evaluated on the basis of the number of permits under their responsibility. Other concerns surround the notion that the current system does not allow for incorporation of socio-economic factors and has a limited ability to impose reasonable requirements.64 It is also apparent that the public is inadequately informed; yet, ministry staff felt that informing the public would consume impractical amounts of ministry resources.65 Finally, it was found that there was lack of consistent application of ministry resources amongst the regions. In particular, a lack of set policies resulted in different approaches by each region. Inconsistencies included different approaches to listing permit holders on the published non-compliance list, inconsistencies between permit fees and requirements between regions and inconsistencies in the expediting of the application process.66 Finally, concerns were voiced over the fact that there is no system in place to ensure the accuracy of data and information provided. Moreover, ministry staff have found that due to insufficient resources, they can no longer keep the ministry's WASTE database current. 64 Ibid, at 51. 65 Ibid, at 53. 6 6 Ibid, at 53 to 56. -38-In summary, the KPMG study reveals that the current regulatory system and its management and administration can no longer keep up with the demands that are placed on it. Reductions in ministry resources, a growing trend in current political agendas, is blamed for the backlog in permit applications and the delays in processing them. However, beyond this, there is an inherent flaw in the system due to its reliance on standards that are admittedly outdated and not necessarily relevant to site specific conditions. Moreover, the inability of the ministry to provide adequate attention to innovation and continuous improvement places it in a position where it can only attempt to meet the status quo. As will be discussed in the next chapter, this is at odds with ministry's own policies and objectives concerning the use of best available techniques.67 2.6 Has Command and Control Seen Its Day? As will be discussed in the next chapter, society today has a great many expectations in regard to environmental protection. Moreover, it is expected that environmental protection be achieved while pursuing other social and economic agendas. At the same time that expectations have grown, there is also greater awareness that more knowledge is needed concerning the relationship between human activity and its effects on the environment. Despite these growing demands, there is at the same time, a general belief in Canada today that as a society we are living beyond our means and there is a need to economize. The 6 7 This refers to the best available control technology (BACT) policy. This policy is currently under review and is due to be replaced by a criteria and guideline policy which will be addressed in further detail in Chapter Three. - 3 9 -foregoing evaluation of command and control reveals a regulatory system that is inefficient and difficult to administer and manage. Moreover, it would also appear that even in British Columbia today, where the provincial government has not pursued a rigorous cost-cutting policy when compared to other Canadian provinces, the Ministry of Environment, Lands and Parks admittedly lacks the financial resources and internal capacity to carry out its mandate under the current regulatory system. Based on these factors, it is apparent that there is a need for alternatives to command and control. That is not to say, however* that it would be wise to do away with command and control altogether. While it may be argued that a command and control regulatory approach ought not be the main regulatory tool for guiding the environmental performance of industrial facilities, there should be no question that society needs to retain through government some means to bring to justice those whose behaviour is abhorrent to society, whether perpetrators be individuals or corporate entities and their officers and directors. Although it is clearly the position of ENGOs that a strong prosecutorial function be maintained, it may appear contradictory to corporate interests to voice any support for continuing with an adversarial system. Yet, from a corporate perspective, it may be argued that without some ultimate means to punish grossly negligent or wanton behaviour, some individuals and business entities will attempt to cut corners to save money and gain an immediate economic advantage. This strategy may work in the short term, but if something goes wrong, the consequences may be severe, both from an environmental and economic perspective. In mining, for example, inadequate engineering and quality control during construction of tailings impoundments may lead to structural failure in the future. When that happens, not only is there a potential for significant environmental effects, but the corporate entity and local government may expend - 40 -great amounts of money to repair the damage. In a broader sense, the mining industry as a whole receives a "black eye" when occurrences like dam failures occur because these events compel stakeholders to call into question the credibility of the industry generally, the ability of mining companies deliver on their environmental commitments, and the soundness of some mining practices. Thus, even form a corporate perspective, it makes sense to maintain certain standards of performance and an ability to prosecute those who deliberately fail to meet them. Notwithstanding the need to maintain the ability to prosecute, one would argue that there is an apparent need for alternatives to the command and control approach. However, before embarking on a discussion of what form an alternative to command and control might take, it would be appropriate to canvas in greater detail the expectations of society in regard to environmental protection. - 41 -Chapter Three The Needs and Expectations of Environmental Protection 3.1 Introduction In Chapter Two, several problems were identified with respect to the command and control, model of environmental regulation. In this chapter, the expectations of present day society in the arena of environmental protection will be identified placing particular emphasis on recent developments in environmental protection in British Columbia and the views of the business community. While it may be relatively easy to critique and identify shortcomings of command and control approaches to environmental protection, it is a more challenging to attempt to wrap the demands and expectations of the many stakeholders into an improved and workable alternative. In the previous chapter, Breyer's "Vicious Circle" and Bourassa and McKean's listing of the factors that stymie cooperation and consultation provided insight into the effect of human dynamics on policy and law-making. In this chapter, one will take a closer look at some of the dominant expectations that have emerged from stakeholders. Much has been written by environmental activists about the principles and concepts that should find expression in environmental laws. Concepts such as "sustainable development", "polluter pays", "zero pollution", the "precautionary principle", and "pollution prevention", to name but a few, have become part of the lexicon of environmentalism that has been - 42 -adopted by government policy-makers. It is important to consider these ideas when contemplating changes to traditional approaches to environmental protection, because the proponent of any new system may expect to achieve greater societal support and success if contemporary values are taken into consideration in the design of that system. At the same time, one must make assumptions about what will and will not work in achieving optimal environmental protection. One such assumption is the belief that government alone is unable to provide the kind of environmental protection that society wants. Another assumption is that each individual member of society expects, depending on personal circumstances, to either maintain or improve his or her own living conditions. If government alone cannot meet these expectations, then other resources must be found and employed either through coercion or cooperation. This leads to yet another assumption - that cooperative approaches are to be preferred. This assumption is supported not only by the application of democratic versus totalitarian values, but also by the notion that it is human nature to be more productive when pursuing one's own goals rather than the goals of another. All of these factors ought to be borne in mind when contemplating how to improve the ability to provide and enhance environmental protection. The examination of command and control highlights the fact that government bureaucracies are unable under the present system to ensure the adequacy of environmental protection. At the same time, the level of funding and human resources that was once applied to environmental protection is no longer available. Civil services in most Canadian jurisdictions are being reduced as governments struggle to meet demands to get deficits under control and balance budgets. In British Columbia, for example, the budget for MELP has been cut by approximately 10% in each of the last two years. Moreover, the ministry -43-is expected to recover costs from waste discharge fees and permits and this currently accounts for approximately 96% of its budget.68 These circumstances present both a unique challenge and opportunity to change the way stewardship of the environment is carried out. There is now, more than ever, a growing recognition of the state of interdependence that must exist if sustainable development is ever to be achieved. This means that stakeholders must learn to work together. To establish this relationship will require the concerted effort of stakeholders - government representatives and regulators, community and public interest groups, and the private sector - to understand and affirm the needs and expectations of each other. This may present the greatest obstacle to change. For example, during the consultation that was carried out in 1994 to contribute to the crafting of a new British Columbia Environmental Protection Act, a multi-stakeholder consultation process involving approximately thirty representatives of environmental groups, labour, business associations, and the provincial and municipal governments involved monthly meetings for approximately a year to review and discuss draft provisions of the proposed Act.69 Although there were instances of concurrence on some provisions, there were few instances of consensus and to a large extent, the participants spoke past each other. It was most noticeable to corporate 6 8 D. Fast, Address (British Columbia Ministry of Environment, Lands and Parks to the Business Council of British Columbia, Vancouver, 18 July 1996). It is interesting to note that the ministry acknowledges that non-point sources are a major cause of pollution in the province and that it intends to focus more attention on these pollution sources. Yet, contrary to the polluter pay principle, the overwhelming percentage of cost recovery comes from levies to industrial point sources. 6 9 The author participated in the consultation as a representative of the Business Council of British Columbia. -44-participants that many ENGO representatives were reluctant to talk about sustainable "development". To their way of thinking, the mandate of environment ministries is to be an advocate for the environment and any consideration of economic or social consequences of environmental law-making should not be its concern. Thus, any talk by business interests of either costs versus benefits of environmental measures or risk assessment fell on deaf ears. Somewhat surprisingly, much the same response was received from labour representatives, who could be expected to be somewhat concerned about possible connections between environmental regulation and job losses. In the long run, the refusal to contemplate the social and economic consequences of measures to protect the environment is a mistake. One only needs to look at the political agenda in Canada today to see that the standing of the environment as a priority can be quickly overshadowed by concerns over economic and social prosperity. In British Columbia, for example, the government's current priorities are job creation, the fishing industry, and the provincial debt.70 Thus, it is clear that environment ministries are not immune from government cost-saving measures. In the release of February, 1995 federal budget, it was announced that Environmental Department would face $234 million in cuts over three years, representing nearly a third of its budget.71 This is taking place in what is considered to be one of the most prosperous countries in the world.72 At the Earth 70 Supra, note 68. 7 1 E. Greenspan, "Copps bolstered by report calling for more environmental action" The Globe and Mail (21 June, 1995) 4. 7 2 C. Goar,"Canada tops in the world for quality of life, UN study says" The Vancouver Sun (16 July 1996) 1-2. - 45 -Summit held in Rio De Janeiro in 1992, one of the messages emphasized repeatedly by representatives of many nations, particularly Third World and developing nations, was that environmental protection would suffer in the absence of economic prosperity. In countries where much of the population lives in poverty, governments are preoccupied with feeding their people and attempting to attract foreign investment. In those circumstances, meeting immediate needs may compromise long term environmental considerations. In order to stop the cycle of pursuing economic and social goals at the expense of the environment, it is essential to borrow from the field of ethics and take an "all things considered approach" when adopting environmental policy and law. Assuming that the debate over environmental protection can evolve to the point where stakeholders talk to instead of at each other and really begin to take into consideration each others needs and expectations, then it will be important to identify, understand and bare in mind the beliefs that are brought to the table. The following sections will highlight73 some of the principles, concepts, and characteristics that,various stakeholders wish to see reflected in environmental law and policy. The concepts described below do not necessarily flow logically from one to the next. Instead, they represent a series of concepts and principles that have been put forward by interested parties. However, rather than simply providing a list, an attempt is made to present the concepts roughly in accordance with the timing of their appearance within the milieu of environmental policy and regulatory reform in British Columbia as observed from the author's own experiences. 7 3 A detailed analysis of the various principles and concepts is beyond the scope of this thesis. Where, however, experience may bring to light insights into private sector perspectives on various issues, these will be presented to assist the reader in gaining a fuller understanding of what influences private sector thinking. -46-32 The Evolving Agenda of Environmental Protection The 1980s and 1990s has been a period of unprecedented activity in the development of environmental law and policy. In the early 1980s, the United Nations established the World Commission on Environment and Development (the Brundtland Commission), which released Our Common Future, a report calling on the world to embrace sustainable development. It concluded that: Humanity has the ability to make development sustainable - to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs."74 Following the release of Our Common Future, the United Nations began planning for a world-wide Conference on Environment and Development (UNCED). In the two years leading up to UNCED, government representatives and representatives from non-governmental organizations (NGOs) negotiated the terms of several international agreements. In June 1992 the "Earth Summit" as it came to be called, was held in Rio de Janeiro, Brazil. Representatives of 179 governments participated and reached agreement on several initiatives, including: - the Rio Declaration on Environment and Development - a set of principles defining rights and responsibilities of nations in the pursuit of human development and well-being; 7 4 World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987) 43. -47-- Agenda 21 - a detailed blueprint outlining the steps necessary to achieve sustainable development; - a Statement of Principles on Forests - to guide the sustainable management and conservation of forests; - the United Nations Framework Convention on Climate Change - a convention aimed at stabilizing greenhouse gases in the atmosphere so as not to adversely alter the Earth's climate patterns; and, - the Convention on Biological Diversity - a convention that would compel countries to conserve the variety of living species and share equitably the benefits derived from biological diversity.75 Many representatives from the federal government and provinces, including British Columbia, attended UNCED and returned to Canada with renewed commitment to demonstrate Canadian leadership in environmental protection. It was also a heady time for the environmental movement as public concern and media coverage reached unprecedented heights. For private sector interests, the lead up to Rio and the increase in public awareness underscored the need to marshall resources and focus on responding to the environmental agenda. In so doing, resources of individual companies were stretched as efforts were made 7 5 M. Keating, The Earth Summit's Agenda For Change, (Geneva: Centre for Our Common Future, 1993)vii. -48-to continue the development of environmental management systems internally, while responding to public policy and regulatory initiatives externally. In the next sections, the expectations of environmental advocates, government and the private sector that have emerged in regard to environmental protection will be canvassed. From an analysis of those expectations, a sense of society's collective expectations may emerge. Rio will be considered in order to gain a perspective on their 3.3 Governments' Expectations of What Environmental Protection Should Include Because of the constitutional make-up of the Canadian federation, examination of the political agenda on the environment must be considered at both the federal and provincial levels. As discussed in Chapter Two, the constitutional division of authority between each order of government is unclear. This has resulted in a mixing of agendas that can lead to friction and a lack of cooperation between governments. From a business perspective, these circumstances give rise to a regulatory system that is duplicative, slow and inefficient, and confusing. The public demand for environmental protection that began in earnest twenty years ago resulted in a first generation of environmental laws that are now up for review and replacement. Governments are moving to reform laws to reflect commitments to principles and concepts that have emerged as thinking on environmental protection and sustainable development have evolved. For the purposes of setting out a discussion of how those - 4 9 -commitments have been acted upon, it is appropriate to focus primarily on an examination of what has been transpiring in British Columbia. This is because the bulk of interaction between government and industry on environmental law, has been taking place provincially. Moreover, in terms of the unfolding of events, the activities and legislative reform initiatives of the Government of British Columbia following Rio demanded more of the time and resources of the private sector than initiatives of the federal government. However; that is not to say that the federal government has not been inactive. In particular, review of the Canadian Environmental Protection Act (CEPA) has resulted in proposals for reforms that will bring that legislation more into line with Canada's international commitments as well as other current trends in environmental policy. These will be discussed before moving onto what has occurred provincially. Movement Towards Reform of Federal Regulation Similar to circumstances in the provinces, the political focus on environmental protection at the federal level has been overshadowed by other concerns including efforts to gain control over the country's fiscal circumstances. Directives related to cost cutting and hiring freezes have compelled the ministry to review and re-evaluate participation in programs. This in turn has resulted in significant cuts to staff and spending powers to federal ministries, including Environment Canada. Meanwhile, those staff that remain may be expected to look for ways and means to continue to justify their own existence. Thus, it may be that now more than ever there is a need for the bureaucracy to be seen to be doing something. -50-These cuts came at a time when the federal government was already beginning to realize that it could not protect the environment without the participation and cooperation of the public at large and the private sector. Today, more than ever, the federal government is looking to the private sector for assistance in environmental protection. In 1994, the federal government announced that it would be introducing legislation to reduce the regulatory burden facing the private sector - The Regulatory Efficiency Act, Bill C-62.76 Bill C-62 would have permitted persons involved in regulated activities to propose alternative means for achieving the goals of relevant regulations. These means or measures would be incorporated into "compliance plans" which, when approved by the responsible minister or other regulatory authority, would take the place of otherwise applicable regulations. Bill C-62 would also have allowed ministers to make agreements with other government agencies or persons with respect to the administrative programs. Bill C-62 was seen by environmental interest groups as an attempt by the federal government to exclude the private sector from environmental regulation and thereby reduce environmental protection.77 As a consequence of theses concerns, Bill C-62 has not been moved forward in the legislative process. 7 6 Bill C-62, an Act to provide for the achievement of regulatory goals through alternatives to designated regulations and through administrative agreements, 1 st session 35th pari, 42-43 Elizabeth II, 1994 7 7 The Westcoast Environmental Law Research Foundation criticized the federal government over its attempt at "dismantling of the federal government's essential functions in the protection of the health and environment of present and future generations" and called for withdrawal of Bill C-62. (See: "Environmental Groups challenge Chretien, WCEL News March 17, 1995)1. -51 -The Canadian Environmental Protection Act™ ("CEPA") is the centre-piece of federal environmental legislation. Proclaimed in force on June 30, 1988, the Act: incorporates the provisions of several pre-existing federal laws. CEPA replaced the Environment Contaminants Act and subsumed the Clean Air Act, the Ocean Dumping Control Act, the nutrient provisions of the Canada Water Act, and certain provisions of the Department of the Environment Act. Among other things, CEPA gives the federal government authority to regulate toxic substances throughout their life cycle; establish environmental quality objectives, guidelines and codes of practice; regulate the content of fuels; regulate the nutrient concentration in cleaning agents and water conditioners; control ocean dumping; regulate waste handling and disposal practices as well as the release of emissions and effluents from federal departments, Crown corporations and agencies; and regulate sources of air contamination that violate international agreements or create air pollution in other countries in cases where the provinces cannot or will not act to control the source of the contamination.79 Section 139 of the Act requires that a review of its adequacy be carried out within five years of its enactment. This task fell to the House of Commons Standing Committee on Environment and Sustainable Development (the "Standing Committee"). Beginning in 1994, the Committee held 55 public hearings, heard testimony from hundreds of witnesses and reviewed dozens of submissions80. The Standing Committee's recommendations were set out in a report, It's About Our Health!, Towards Pollution Prevention, CEPA Revisited, 78 Canadian Environmental Protection Act, R.S.C. 1985, c.16 (4th Supp.). 79 Report of the House of Commons Standing Committee on Environment and Sustainable Development: It's About Our Health! Towards Pollution Prevention: CEPA Revisited (Ottawa: Queen's Printer, June 1995) (Chair: C. Caccia) 23. 8 0 CEPA Review: The Government Response - Environmental Protection Legislation Designed For The Future - A Renewed CEPA (Response to the Recommendations of the Standing Committee on Environment and Sustainable Development outlined in its Fifth Report, "It's About Our Health! Towards Pollution Prevention") (Ottawa: Ministry of Supply and Services Canada, 1995) 3. -52-commonly referred to as the "Caccia Report after the committee chair, the Honourable Charles Caccia, Member of Parliament for Davenport. The Caccia Report raised concerns that the level on environmental protection in Canada is inadequate and called upon the federal government to restore financial resources to environmental protection. In it, the Standing Committee concluded that: CEPA is not achieving what it was designed to do. Throughout the Report, we have identified several important shortcomings of CEPA: the unacceptably slow assessment and control of toxic substances; the lack of progress by the federal government in cleaning up its own operations; reliance on outdated and inefficient control strategies; and inconsistent and ineffective enforcement.".81 The Caccia Report made 141 specific recommendations, emphasizing the need for a long-term vision aimed at preserving ecosystem integrity by focusing on pollution prevention and being guided by the precautionary principle. The Standing Committee also concluded that the way forward must rely on individuals to assume responsibility for their actions in regard to the production and use of substances.82 The federal government responded to the Caccia Report by acknowledging the changes that have occurred in science and social policies generally. It also noted that since CEPA was created, significant events have shaped society's view of the environment. These events include greater understanding of persistent toxics that may be carried great distances by air, wind and water, the recognition of which led in turn to reinforce the notion that local Supra, note 79 at 275. Supra, note 79 at 275-277. -53-actions may have global implications83; the hole in the ozone layer; the release of Our Common Future?* and the United Nations Conference on Environment and Development (UNCED), held in Rio de Janeiro, Brazil in June, 1992. In its response to the Caccia Report, the federal government has adopted the position that in order to achieve the principal goal sustainable development, "the underlying principles that should be applied include pollution prevention, the ecosystem approach, bio-diversity, the precautionary principle, user/producer responsibility, cooperation and coordination between governments as well as with aboriginal self-government regimes."85 Consistent with the Standing Committee's recommendations, the federal government has endorsed a shift in emphasis from waste management to pollution prevention. The federal government, after a multi-stakeholder consultation and consensus, defines pollution prevention as: "The use of processes, practices, materials, products or energy that avoid or minimize the creation of pollutants and waste, and reduce the overall risk to human health or the environment."86 The federal government intends to treat pollution prevention as a national priority by shifting the focus of environmental protection away from end-of-pipe management and 8 3 Another example would be the Chernobyl nuclear power plant disaster which occurred in 1986 with far ranging consequences which are still being felt today. 84 Supra, note 74. 85 Supra, note 80 at 13. 86 Supra, note 80 at 14. -54-pollution control to prevention by encouraging pollution prevention planning. The federal government proposes to use CEPA to require pollution prevention plans for certain toxic substances. For substances not subject to regulation, the government would rely on voluntary pollution prevention plans. It would be up to the minister to determine for which toxic substances plans will be required and what parties will be responsible for preparing plans.87 (Later in this chapter, the different perspectives of various stakeholders on concepts such as pollution prevention will be compared and contrasted.) Traditional approaches to environmental regulation have tended to focus on individual waste streams (air-water-land, for example). Today, the federal government is endorsing an "ecosystem approach" that would utilize an integrated approach to environmental protection. This approach recognizes that the various constituents of the environment are inter-connected and that maintaining a balance of those constituents is essential to achieving a sustainable environment thus sustainable development. In response, the government has proposed to implement the ecosystem approach as follows: "The Act would define ecosystems as a dynamic complex of plant, animal, micro-organism communities and their non-living environment interacting as a functional unit. Ecosystem approach, based on science, could be defined to mean administrating the Act in a manner that considers the unique and fundamental characteristics of individual ecosystems and the interdependence of social, economic and environmental systems. The definition of "environment" would be amended to include explicit reference to ecosystems."88 8 7 Supra, note 80 at 44. 8 8 Supra, note 80 at 14. This definition is consistent with the definition of "ecosystem" found in the Convention on Biological Diversity. -55 -The federal government sees a role for itself in ecosystems management. Currently, CEPA provides authority for the ministry to monitor and provide public data on environmental quality and conduct research related to environmental contamination. It may also develop plans for prevention, control and reduction of environmental pollution. The Government of Canada intends to carry on this mandate and will change the existing Act as appropriate to reflect the ecosystem approach.89 In keeping with its commitment to the Convention on Biological Diversity, the Government of Canada has proposed to incorporate in the preamble of CEPA, a reference to Canada's international obligations under the Convention.90 The federal government has also indicated that it may include the definition of biodiversity found in the Convention: "The very ability among living organisms from all sources, including inter alia, terrestrial, marine and other aquatic and ecosystems and ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems."91 The current thrust would take into consideration biological diversity when designing pollution prevention strategies. This could mean that pollution prevention plans for facilities would be required to include a baseline analysis of the ecosystem potentially impacted by an operation and to prepare an assessment of potential impact and required mitigation. 8 9 Supra, note 80 at 29 - 30. It is interesting to note that in the report, the federal government takes the position that ecosystem decision making requires placing equal emphasis on concerns related to the environment, the economy and the community. 9 0 Supra, note 80 at 14. 91 United Nations Framework Convention of Climate Change, 12 June 1992 -56-Recognizing that environmental protection is a matter of shared responsibility in Canada, the federal government has committed to "continue to seek the cooperation of provinces, territories and Aboriginal Peoples on issues requiring inter-jurisdictional solutions and coordination of environmental measures and eliminating duplication and overlap among measures".92 In the introduction to CEPA Review: The Government Response, the government went so far as to say that: "We [the federal government] have a strong partnership with provinces and territories in the field of environmental management".93 In fact, this statement does not reflect the relationship that actually exists between the provinces and the federal government on the issue of environmental regulation. This is particularly true when one considers the relationship between British Columbia and the federal government. The federal government is frequently accused of failing to consult with the provinces, particularly in the area of international commitments that require provincial action. Moreover, harkening back to the Bourassa and McKean list, productive cooperation between ministries may be hindered by rivalry and institutional imperatives driven by both political and bureaucratic imperatives.94 Despite the lack of cooperation in the past, it will be essential in the future inasmuch as both environmental problems and ecosystems traverse jurisdictional boundaries. Moreover, 9 2 Supra, note 80 at 14-15. 9 3 Supra, note 80 at 2. 9 4 One notably exception to this lack of cooperation may be harmonization agreements on environmental assessment which is currently being negotiated between British Columbia and the federal government. However, if the final agreement mirrors the current draft, there may still be significant uncertainties for proponents caught by the federal and provincial environmental assessment processes. -57 -in the interest of efficient utilization of increasingly scarce resources, both within and outside government, finding common ground and pursuing cooperative approaches are essential to making progress toward meeting society's expectations. As will become clear below, provincial perspectives, as demonstrated by events in British Columbia, share common themes with federal priorities. However, due to the constitutional division of powers, the provinces are in many respects better positioned to legislate in the area of environmental protection. Regulatory Reform in British Columbia After Rio, it was clear that British Columbia's then Minister of the Environment, John Cashore, intended to accelerate the pace of regulatory reform. The previous Social Credit Government had already released in 1990 its Vision 2000, a discussion paper outlining proposed reforms for the 1990s. When the government changed, much of the legislative agenda on the environment remained in place and the new government was vigorous in demonstrating its commitment to the environment. In April 1992, just prior to the Earth Summit held in June of that year, MELP released a legislative discussion paper: New Approaches to Environmental Protection in British Columbia.95 New Approaches to Environmental Protection set out a host of principles and concepts that MELP intended to pursue as part of a five year action plan to create a new legislative framework under a act that would be called the British Columbia Environmental Protection Act (BCEPA). 9 5 Ministry of Environment, Lands and Parks, New Approaches to Environmental Protection in British Columbia, (Victoria: Ministry of Environment, Lands and Parks, 1992). -58-Following the release of New Approaches to Environmental Protection, a series of "new approaches" papers were released for different environmental media - air, water, contaminated sites, etc. The business community was hard pressed to react and respond to the barrage of policy papers, most of which requested public feedback in tight timeframes. At this point, personnel at Cominco called into question the efficacy and practicality of merely reacting to the ministry's agenda, particularly when, at the time, it was unclear where that agenda was heading. It was at this juncture that the company began to work on formalizing its own position on what direction it thought regulatory reform should take. The process of developing and expressing a corporate view turned out to be an involved process that began with internal consultation and the formation of a working group made up of personnel responsible for environmental management at the Sullivan Mine and Trail Operations, and corporate staff with responsibility for environmental and legal affairs. The Cominco working group sought first to identify both the problems inherent in the existing regulatory system as well as what practices were getting good results. Cominco's experiences with initiatives that called on the company to work with other groups to identify environmental concerns and address problems were regarded as approaches to be protected and promoted.96 The company considered the many environmental principles and concepts that have evolved in recent years and attempted to identify factors that could be applied to 9 6 Initiatives include the Sullivan Mine Liaison Committee, facilitated by the Ministry of Energy, Mines and Petroleum Resources. The liaison committee meets with a variety of stakeholders and interested citizens. In Trail, in addition to the Trail Community Lead Task Force, the company is a participant in the Columbia River Integrated Environmental Monitoring Program (CRIEMP), which is a partnership of Provincial and Federal Agencies, industry and local communities who have developed a cooperative program to monitor and assess the health of the Columbia River. -59-achieve sustainable development. It was agreed that pollution prevention and waste minimization should be "primary principles of environmental protection".97 It was also agreed that the traditional command and control approach was not the best means to optimize environmental protection to achieve sustainable development for the same reasons outlined previously in this thesis.98 Cominco presented its views in a paper entitled: Environmental Protection - Balancing Environmental, Social and Economic Goals. 9 9 In its paper, the company reflected on its experiences and highlighted what it considered to be "elements of a solution", which included: establishing open communication and partnerships with interested parties and identifying common goals; maximizing efficient use of resources by planning for land use and resource utilization, promoting research and technological innovation, establishing objective standards based on sound science, and eliminating duplication within regulatory regimes; 9 7 Cominco Ltd., Environmental Protection Balancing Environmental, Social and Economic Goals (Cominco Ltd. 1993) 7. 9 8 The company came into this project fresh from its experiences with the Mark Creek prosecution and readily identified the same shortcomings outlined in Chapter 2 -inefficiency, costly to both government and industry, creates barriers to communication, prevents openness and inhibits innovation, [see: Cominco Ltd. ibid, at 1-2.] Supra, note 97. -60-promoting public responsibility and accountability, the notion being that the interested public must become educated about issues affecting sustainable development at a community level and government and industry must cooperate to ensure there is useful information available and accessible; creating an ability to identify and address priorities, particularly at a community level; demonstrating leadership and cooperation in government by developing environmental standards that are scientifically sound and performance based and by design of regulatory processes that provide incentives to improve knowledge; and, by applying the principles of pollution prevention and waste minimization.100 The paper went on to suggest an alternative to command and control that could capture the elements of a solution that had been highlighted in the paper. Borrowing from the work of Dr. Andrew Thompson on adopting a contractual model for pollution control101, the company proposed that negotiated agreements be considered as an alternative to the normal permitting process. In support of this approach, it was noted in the paper that: The [contract] model actually builds upon and formalizes the process that already exists, in that it recognizes that the interaction between the regulator and the regulated often begins with negotiations and ends with commitments that must be acceptable to the public. 100 Supra, note 97 at 5-7. 1 0 1 Barton, B.J., Franson, R.T.,Thompson, A., A Contract Model For Pollution Control (Vancouver: Westwater Research Centre, 1984). -61 -Agreement and commitment are the essence of this approach, for it is the explicit absence of these in the present regulatory directive approach which tends to reinforce public distrust and provides no means of recognizing the voluntary accountability of the permit holder. Moreover, the command/control system does not contemplate an effective role for the public, which should have a place in the process.102 When this model was considered by Cominco, it was regarded as a tool that could be used primarily for large, complex and unique facilities. It was also contemplated that the process leading to agreement would begin with consultation with public located in the vicinity of the facility and potentially affected by its operations. The consultation would be used to identify public concerns and priorities. Armed with this information and applicable existing standards, representatives of the facility and the government would negotiate the terms of agreement identifying priorities, targets, time frames, and remedies for breach. It was also contemplated that dispute resolution would be included to resolve conflicts while criminal law sanctions would continue to be available to address flagrant and intentional violations. At the same time that the Cominco working group was in the process of establishing its own position, the ministry launched a consultative and legislative drafting exercise to create a new British Columbia Environmental Protection Act (BCEPA). The stated intention of the initiative was to create omnibus legislation to combine and streamline existing environmental laws. However, it soon became obvious that the ministry intended to do much more than tidy up existing laws. In keeping with the government's commitment to consultation and transparency, an elaborate consultation process was established and ran Supra, note 97 at 9. -62-from November of 1993 to September of 1994, drawing stakeholder representatives from industry, unions, environmental groups, municipalities, First Nations103, and government. The following summary outlines the ministry's agenda as it was laid out in the draft legislation and policy discussion papers. To a large extent, the proposed legislation reflected many of the principles that were and remain important to the ministry and environmental advocates. Principles Inherent in BCEPA Pollution prevention should be the primary focus of environmental protection. As will be discussed further in this chapter, the definition of pollution prevention has evolved since MELP adopted the concept from the United States Council on Environmental Quality: Pollution prevention means the reduction or elimination of pollutants at their source so that waste is not generated. It contrasts with 'end-of-pipe', 'collect-and-contain', or 'release and dilute' controls, which are designed to treat or control releases of waste already generated.104 1 0 3 The First Nations representatives made it clear early on that they could only participate as observers because they had no authority to speak for or commit their constituencies to any particular proposal. As the meetings progressed, perhaps with foresight as to the likely outcome of the process, they stopped attending the meetings. 1 0 4 Council on Environmental Quality, Environmental Quality: Twentieth Annual Report to the President, (Washington, D.C.,1990) 215. -63 -The general categories of industrial pollution prevention referred to in the discussion paper include input substitution, in-process recycling, process modification, improved plant operations, and changes in end product. Environmental protection should incorporate the waste hierarchy -the five R's, of reduce, re-use, recycle, recover and residuals management. The preferred order for addressing wastes is to reduce, re-use and recycle. Recovery and residuals management should be permitted only after the higher order options have been considered. A central purpose of environmental protection should be to achieve "sustainable management of the environment". This purpose was set out in the draft in section 2, a section that proposed to list a series of purposes that would mandatorily be applied to all decisions of the ministry. As proposed, "sustainable management" would be defined as: "managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people to meet their needs now without compromising the ability of future generations to meet their own needs, and includes the following considerations: a. the efficient management of natural and physical resources; b. the maintenance and enhancement of the life supporting capacity of the environment; c. the use, development or protection of natural and physical resources in a way which provides for the social, economic and cultural needs and opportunities of present and future residents; - 64 -d. where the environment is modified by human activity, the adverse effects of irreversible change are fully recognized and avoided or mitigated to the extent practicable; and, e. the use, development or protection of natural and physical resources so that their ability to yield long term benefits is not endangered." The term "sustainable management" was a variation on the sustainable development theme and was likely an attempt to appease some environmental advocates who opposed use of the word "development" in sustainable development. "Zero pollution" should be an explicit goal of the government. As stated in the discussion paper, zero pollution recognizes that the environment is capable of assimilating some wastes and that if properly managed, some kinds of waste discharges will not cause pollution problems. The precautionary approach should be applied to decisions respecting the environment. The precautionary approach shifts the burden of proof from those who wish to protect the environment having to prove damage, to industry which must not so much prove safety, but must assume that any unnatural substances or natural substances in unnatural quantities, have potential for harm and must therefore be contained or not used at all, particularly where there is evidence of toxicity.105 The precautionary approach was endorsed in Agenda 21 and the climate change convention. The definition that has received wide recognition states that: Supra, note 95 at 20. - 65 -"Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation."106 Some environmental groups reject the inclusion of the "cost-effectiveness" qualification on the apparent basis that protection of the environment is paramount at any cost. Business interests, on the other hand, have expressed concern that responsible decision-making requires a consideration of the economic implications and associated costs and benefits. Producers should be required to use "Best Available Control Technology" ("BACT"). The proposed definition of BACT was: "state of the art control technology which, in the opinion of the Executive Director, has proven to be successful in reducing waste discharge and disposal and has been applied for at least one year in similar facilities in the Province or in other relevant jurisdictions that he/she may consider relevant."107 When the BCEPA drafting process commenced, British Columbia had a BACT policy that was opposed by many business interests. A primary argument against BACT was that it put government regulators in the position of dictating the technologies that the private sector could use when the government did not possess the necessary 106 Rio Declaration on Environment and Development, June 1992, Principle 15. 1 0 7 Ministry of Environment, Lands and Parks, British Columbia Environmental Protection Act (Draft), (Victoria: 30 June 1994). -66-qualifications of technical ability or knowledge of industrial processes to make those decisions. The ministry itself recognized the practical difficulties of determining BACT on a case by case basis and ultimately scrapped the policy and proposes to replace it with a Guidelines and Standards Policy108 that would incorporate a "best available technique" principle, which is discussed later in this chapter. Government should enforce the "polluter pays" principle. This principle is at the heart of the proposed contaminated sites legislation, which would become part of BCEPA. The current approach to polluter pay creates retrospective liability for present and past owner/operators of contaminated sites as well as persons who produce substances which contaminate sites or who transported substances resulting in contamination, even where such activities may have been lawful at the time. As currently reflected in legislation, polluter pay does not spread liability to other persons who may have benefitted from past activities. Industrial "pollution prevention plans" should be required for large, integrated industrial complexes.109 Section 4.4 provides a detailed analysis of what the ministry intends to achieve through the use of pollution prevention planning. 1 0 8 Ministry of Environment, Lands and Park, Environmental Protection Divisions has been working on a Pollution Prevention Guidelines and Standards Policy, which is currently in final draft form awaiting endorsement by senior ministry staff. The author participated in stakeholder group that was tasked with making recommendations for a replacement of the BACT policy. This policy is discussed in more detail in section 3.6. 109 Supra, note 95 at 27. - 67 -An integrated management approach to pollution should be implemented. Obligations and authority for designated local governments to prepare plans to address municipal waste, liquid waste, air quality management, biomedical waste and environmental emergencies should be clarified and subject to the approval of the minister. Province-wide minimum standards and policy statements on the protection of the environment should be created to increase local government accountability. Environmental legislation should be fair. In this respect, the ministry was referring to the granting of variance orders which come under section 13 of the Waste Management Act, giving the minister absolute discretion to give a permit holder "temporary relief from a permit, plant or order. The time period during which a variance is in effect is not defined. Under BCEPA, the ministry would be required to give public notice and an opportunity for input before a variance order is implemented. Moreover, variance orders would be granted for only a limited period of time.110 As will be noted, business interests endorse the "fairness principle" and would expand its application to other provisions like retrospective liability and "beneficiary-pay" versus "polluter-pay". 110 Supra, note 95 at 28. See also draft BCEPA Section 27 regarding amendment of permits and approvals and note that a manager's discretion to amend the permit is limited to where it is "for the protection of the environment". - 68 -Environmental Protection legislation should provide statutory authority to delegate certain powers to local governments, other ministries and federal authorities. • Environmental protection legislation should provide clearly identified lines of authority and accountability of officials in the ministry.111 Technical and scientific expertise of ministry officials in Victoria or regional offices should be made available to regional and local authorities. Concerns have been expressed that if authority is shifted to the regions and local government, there would be insufficient technical support. Environmental Protection legislation should avoid unnecessary duplication of federal/provincial services by establishing equivalency provisions.112 The provincial government should be authorized by law to enter into agreements with other jurisdictions, including the federal government, other provincial and territorial governments, neighbouring states, local governments and aboriginal governments.113 The stated intention is to encourage cooperation and provide 1 1 1 In fact, proposed section 4(11) in the draft BCEPA would permit the minister to delegate any power or duty conferred on the minister under the Act to any government agency, the Governor of Canada, any aboriginal government or local authority and may revoke or transfer the administration of any power where the minister considers it appropriate to do so (section 4(15)). The exercise of such powers may in fact blur lines of authority and accountability. 112 Supra, note 107, s. 6. 113 Supra, note 107, s.4(3). - 69 -legislative support for new partnership and stewardship agreements. However, as noted in the discussion on the division of constitutional powers, formal agreements with other jurisdictions could run afoul of constitutional laws. A system of incentives and penalties should be available to officials to help ensure and encourage compliance.114 The lead authors of the draft BCEPA favoured an administrative penalty approach to enforcement that would allow ministry officials to issue tickets much the same way as occurs under workers compensation provisions. The incentives contemplated would consist of compliance agreements whereby parties that were not meeting the requirements of standards or their permits would enter into an agreement to achieve compliance in accordance with a plan approved by the ministry. The compliance agreement would be used as an alternative to prosecution. The minister must have discretionary authority to control the application or use of any potentially harmful chemical products and environmental practice in the province.115 Environmental protection legislation should empower the ministry to create and implement plans and programs for environmental protection and to formulate environmental quality criteria, objectives, guide-lines, standards and codes of practice. 14 Supra, note 107, Part 3 - Economic Instruments. 15 Supra, note 107 at 13. -70-Environmental protection legislation should take precedence over all other legislation. In accordance with this principle, the draft BCEPA proposed that it would take priority over other acts and regulations except where provided to the contrary.116 As currently drafted, the Environment Minister would determine the overriding authority of the Act, except where the Lieutenant Governor-in-Council otherwise provides. In addition to the principles that the ministry proposed to incorporate in new legislation, environmental interest groups advocated additional provisions. 3.4 Expectations of the Environmental Movement Most of the principles and concepts chosen by MELP for inclusion in BCEPA were either created or supported by environmentalists. More generally, environmental interest groups represented in the BCEPA consultation were seeking several improvements on existing legislation. In particular, they sought: Improved enforcement of existing environmental standards. Environmentalists have not been satisfied with the government's record of enforcement and prosecutions for environmental offences. In recent years, mounting pressure on politicians to improve enforcement resulted in more prosecutions and convictions. While environmental Supra, note 107, s. 3(5). -71 -interest groups are supportive of environmental protection measures that operate outside of command and control and other prescriptive mechanisms, they generally advocate maintenance of a strong system of enforcement of province-wide minimum standards. Increases in penalties. Environmental interests sought increase penalties to go along with more enforcement. The draft BCEPA provisions contemplated higher fines. More resources for environment ministries. Environmentalists are alarmed at the reductions in resources from staff and budgetary cut-backs. They argue that environment ministries have not be given enough resources to do a proper job and argue that rather than reductions, more resources are needed. Environment ministries should be advocates solely for the environment. For some environmentalists, this means that environment ministries should not be concerned about the cost-effectiveness of proposed protection measures; nor should the ministry try to balance social and economic factors with environmental ones. The public should have ample opportunity to participate in decisions on environmental matters. Although this concept has received general recognition, it means different things to different people. For some, several provisions need be in place to ensure ample opportunity for the public to assume a role in environmental protection. This may include provision for intervenor funding, access to expert assistance, "whistle-blower protection" to protect employees who report on their - 72 -employers, and indemnification protection to protect against counter-claim suits. In this regard, an example of a specific proposal came during the BCEPA consultation. It was proposed that an environmental bill of rights be included in BCEPA to give citizens an individual right to a healthy environment and a right of action against any person causing harm to the environment.117 Legislative provisions were sought to create a process where individuals, regardless of any property interests or possibility of personal injury, could apply to the ministry to launch an investigation if they had reasonable and probable grounds that an offense had been or was about to be committed. The ministry would then have to report back to the applicant within 90 days and if it was determined that the ministry was going to discontinue the investigation, then the applicant would be entitled to a written explanation and could then appeal to the Environmental Appeal Board. It was also contemplated that an individual could pursue an action against any person causing an adverse effect on the environment after the ministry has completed its investigation,without having to show that there has been any infringement of an authorization or permit issued by the ministry. Advocates of an environmental bill of rights also argued that the plaintiff should only have to make out a prima facie case that the defendant's conduct would be likely to 1 1 7 The author was part of a sub-group of the broader BCEPA consultation that was asked to consider inclusion of an environmental bill of rights in BCEPA. The group met several times during May through August, 1994. See also: A. Hillyer, "Province shelves environmental bill of rights", West Coast Environmental Law Research Foundation Newsletter, (Vancouver: 4 October 1994)1. - 73 -cause an adverse effect. The onus would then shift to defendant to establish that there was no reasonable alternative to the conduct in issue. Business interests, which will be discussed more generally in the next section, were concerned that an environmental bill of rights would create problems of uncertainty of decision-making and the ability to rely on authorizations and permits, a flood of litigation, and the effect all of this would have on the ability to conduct business. They also argue that the appropriate responsibility for enforcement lies with government, which has a mandate and can be held to account. Standards should only become more stringent. Many ENGOS argue that environmental standards should only become tighter. In this respect, some have argued for zero-discharge standards and do not believe assimilative capacity should of the environment should be a consideration to allow for some level of discharge. 3.5 Expectations of Business Interests In its review of proposed provisions of BCEPA, the Business Council of British Columbia was quick to point out that it too supported an "updated environmental protection regime in British Columbia".118 The Business Council urged the government to pursue reform 1 1 8 Business Council of British Columbia, A Preliminary Review of Key Issues Arising From the Proposed B.C. Environmental Protection Act (Business Council of British Columbia: 3 June 1994) 1. - 74 -that would facilitate federal-provincial harmonization and reduce uncertainty and delays that often characterize existing environmental laws. The Business Council also endorsed some of the key concepts proposed including pollution prevention, the use of regulatory tools such as market based incentives, polluter-pay (depending on the definition of "polluter"), and providing for public information and consultation. At the same time, the Business Council indicated that several of its key concerns and interests were not being adequately reflected in government proposals for reform. These are outlined below. Environmental protection legislation should provide for timely decision-making. The draft provisions of BCEPA did not provide specific details of time lines with respect to decision-making, notice provisions, comment periods, public consultation programs, and other related procedures. This was to be left for inclusion in regulations. In other words, as far as the drafters were concerned, timeliness and efficiency were not immediate concerns. Environmental protection legislation should provide certainty regarding its application, scope and performance standards. As drafted, BCEPA would allow the minister to impose new standards and waste reduction targets which will supersede the provisions of existing permits.119 This would create significant uncertainty and 1 1 9 Supra, note 107 at ss.44(3). Under this provision where the minister prescribed the waste reduction targets, the regional manager must amend permits within 60 days to achieve the new targets. -75 -increases business risk. Laws must allow permit and approval holders to rely on the authorizations they have received for the duration of their term. The Act should also provide for certainty of terms and definitions. In the draft legislation, for example, some of the terms which were referred to in the purposes section were not defined; such as "essential ecological processes", "biological diversity", and "zero pollution". Environmental protection legislation should facilitate sustainable development. From a business perspective, this means that a significant element of the legislation should include consideration of economic and social concerns as well as environmental and should facilitate sustainable development objectives by providing for cooperation with other ministries and governments that share a similar mandate. Sustainable development should be an overall goal of government. Therefore, environmental protection activities should dove-tail with other government activities intended to achieve not only environmental protection but economic and social planning objectives. Activities carried out pursuant to environmental protection legislation should be coordinated with the work of other ministries and should be compatible with the priorities of the government as a whole. Environmental protection legislation should strive to facilitate a cooperative approach to sustainable management between government and the private sector. The legislation should place less emphasis on perpetuating command and control and - 76 -the resulting adversarial relationship which exists between stakeholders and instead should focus on pursuing avenues that will lead to agreement and consensus. Under the proposed legislation, the traditional means of enforcement would be augmented by ticketing offenses, administrative penalties and assurances of voluntarily compliance. In addition, a more cooperative approach was envisioned through the introduction of mechanisms to incorporate pollution prevention plans. This could be a useful tool to facilitate a cooperative approach to environmental protection. However, a concern arises that unless the process is voluntary, it may result in a regulatory scheme that is more coercive than cooperative. For example, under the offense provisions of proposed law120, a $300,000 penalty was contemplated for breach of a pollution prevention plan. In order to facilitate a cooperative/partnership approach to pollution prevention, it may be necessary to establish voluntary programs which are outside and not subject to the offence provisions under the Act. One suggestion would be to create a mechanism for establishing pollution prevention agreements which are binding on both the producer and government and incorporate remedies for breach of the agreement which exclude the offence provisions of BCEPA other than instances where environmental degradation is a result of intentional acts or wanton disregard for the environment. Stakeholders should be encouraged and compelled to identify challenges and set priorities for meeting them. This concept is embodied, to a degree, in pollution Supra note 107, ss. 18(A)(10). - 77 -prevention planning and more so in terms of the assurances of voluntary compliance provisions.121 Environmental protection legislation should require the establishment of objective standards based on sound scientific and technical knowledge. Business interests are particularly concerned about the validity and science supporting standards. Many environmental standards today date back decades and may be based on outdated and incomplete scientific analysis. In its review of BCEPA the BCBC noted that: The primary focus of regulators should be on environmental risks and/or existing environmental impacts, not on technological factors or on fashioning hurried responses to public or interest group pressure.122 The submission also argued along the lines of Justice Breyer's Vicious Circle analysis, that: In the United States, there has been a growing consensus among experts that "in the last 15 years environmental policy has too often evolved largely in reaction to popular panics, not in response to sound scientific analyses of which environmental hazards present the greatest risk." The same criticism can be made of developments in Canada and, even more so, in British Columbia (e.g., the expensive chaos surrounding the clean-up of the former Expo lands).123 121 Supra, note 107 at s.37. 122 Supra, note 118 at 12. 123 Supra, note 118 at 112. (quoting from "New View Calls Environmental Policy Misguided", New York Times (March 21, 1993)). - 78 -Accordingly, the Business Council called on the provincial government to ensure that provisions for "appropriate" public consultation be enshrined in legislation and that establishment of environmental standards and criteria should be scientifically justified. It should be noted that this requirement would contradict application of the precautionary principle, which would allow for requirements to be imposed in the absence of scientific justification.124 Environmental Protection legislation should provide incentives to improve knowledge and promote development of environmentally beneficial processes and products. For example, the old BACT Policy required that technology be applied for at least one year in similar facilities in a province or in other relevant jurisdictions before it would be considered best available control technology suitable for British Columbia. By virtue of this approach, home-grown technology would be discouraged since it would not be approved for use until it had already been accepted for at least one year elsewhere in the province which could not occur unless it was used initially in some other jurisdiction. Business interests wish to see the creation of incentives to perform research and development to develop new technologies for local use and export. This could be accomplished through reduced permit fees, assurances of renewals and allowances for accelerated write-off of associated capital costs, technology transfer assistance and 1 2 4 As will be discussed in section 3.6, the concern over scientific justification may be addressed if the province formally adopts and applies the principles outlined in the proposed Pollution Prevention Guidelines and Standards Policy. - 79 -mechanisms to assure recognition of progress and innovation.125 These tools could be incorporated in pollution prevention plans or agreements. Environmental protection legislation should not interfere with business operations. Aside from the disincentive for development of new technology, a major criticism of BACT concerns its intrusion into the day to day workings of business operations. According to the Business Council, [ijndustry opposes BACT as a basis for setting environmental regulations. Government officials should not be involved in manipulating the choice of technology used by firms or the type of products they produce and sell in the marketplace. Environmental standards and criteria should be based on scientific analysis, not the existence of particular technologies.126 In fact, as long as there have been environmental performance standards, government has had an influence on the choice of technologies, either directly or indirectly. Standards have compelled the development of technology to meet them. Indeed, prominent economist, Michael Porter, believes that environmental regulation is good for competition and the economy as a whole, provided that it focuses on outcomes, not technologies, use flexible approaches organized around "affected industry clusters", and focuses on pollution prevention, rather than pollution control.127 1 2 5 In British Columbia, MELP and the Ministry of Employment and Investment are working towards the creation of an International Centre for Environmental Business that may be utilized to realize some of these aims. It remains to be seen how this centre will be operated, but most business interests have indicated that they would want it to operate outside of government. 126 Supra, note 118 at 18. 1 2 7 M. Porter and C. van der Linde, "Toward a New Conception of the Environment-Competitiveness Relationship", Journal ofEconomic Perspectives (Vol.9, No.4(Fall 1995)) 87 -80-Another way in which legislation may interfere with business operations is with respect to the requirement to perform and provide environmental audits under the assurances of voluntary compliance provisions.128 Other principles mentioned above emphasize open communication and cooperation. However, those principles must be limited to protect the rights and interest of private parties. "Transparency" should be used with good judgement based on a consideration of the other principles outlined above. Environmental protection legislation should provide for a cost-effective regulatory regime. Business interests constantly call on government to eliminate waste of every form, including bureaucratic waste and unnecessary oversight costs. Examples of waste, from the business perspective were identified in the draft requirements in BCEPA for reporting, provision of site profiles, environmental audits, and payment into funds such as the Sustainable Environment Fund129 and the Environmental Accident and Emergency Fund.130 The latter fund would require payment by the private sector into a fund to enable the ministry to plan for the prevention and at 110. In the same journal, K.Palmer, W. Oates, and P. Portney "Tightening Environmental Standards: The Benefit-Cost or the No-Cost Paradigm?", Journal of Economic Perspectives (Vol.9, No.4(Fall 1995)) 119 at 121. critique what they articulate as two of Porter's assumptions: that the private sector systematically overlooks profitable opportunities for innovation and, secondly, that regulatory authorities are in a position to correct this market failure. 1 2 8 Supra, note 107, s's. 37 and 38. 1 2 9 Detailed draft legislation regarding this fund has not been released, but provisions exist with respect to marketable discharge rights (Section 52(1)) and payment of administrative penalties (Part 10, Section 41). Supra, note 107, Part 6, Section 8. - 81 -management of environmental emergencies, provide environmental clean-up activities and pay compensation and other expenses. The private sector would argue that in order to be cost effective, the regulatory regime must allow for priority setting. It should facilitate means whereby funds and resources are directed to protect the environment according to relative need. Cost effective environmental protection could be more readily achieved through cooperative approaches to standard setting, monitoring and testing requirements. Environmental protection legislation should focus on accountability of decision-makers and should require ministry staff to report periodically on their activities and initiatives. Providing public disclosure would help ensure accountability, reporting on priorities and measures taken to address them. Business interests would like government to make annual reports to the public outlining the overall budget and spending of the environment ministry and including information specifically detailing the activities relating to each of the funds created and requiring public input, spending generated through the activities carried out pursuant to the contaminated sites and permit fees legislation as well as details of the costs associated with enforcement and revenues generated from the collection of fines and levies. i Beneficiaries of past practices should share responsibility for remediation. Retroactive polluter pay measures should recognize that specific entities and individuals may not have been the only beneficiaries of past practices that, though -82-acceptable at the time and are no longer appropriate today. In some cases, the public sector may have had knowledge and in fact encouraged activities that require remediation today. Environmental protection legislation should recognize those circumstances and provide equitable means to apportion responsibility. BCEPA should dove tail with other related legislation such as the British Columbia Environmental Assessment Act ("BCEAA") and the Canada Environmental Protection Act ("CEPA"). As discussed earlier, the current constitutional division of powers between the federal and provincial governments creates legislative and regulatory duplication and overlap. From a business perspective, it is important that legislation be streamlined in order to maximize efficiency and certainty and minimize compliance costs. Environmental protection legislation should provide a level playing field. The notion of a level playing field means different things to different people. For many in the private sector, it means that similar industries and operations should be treated alike. For others, there is a concern that government has focused an inordinate amount of attention on industry as the main cause of pollution, when in many instances, it may be non-point sources (e.g. automobiles), municipal activities and agriculture that pose a far greater threat and have more impacts on the environment. Many within the private sector fully recognize that industry must take responsibility for ensuring that impacts on the environment are prevented and that those that do occur be minimized and mitigated. However, they would also suggest that it is only - 83 -appropriate that government promote shared responsibility for environmental protection and an equitable approach to apportioning responsibility and accountability. For its part, MELP has begun to acknowledge that industry in British Columbia is not the major cause of the larger problems such as air quality in the Lower Mainland where the problem is automobiles. Nor is industry the major impact on water quality. Using data from the United States to illustrate the point, MELP officials have suggested that the majority impacts on estuaries, lakes and rivers are from nonpoint sources and municipal point sources rather than industrial point sources.131 Despite the facts, however, the ministry continues to rely on the collection of permit fees, by enlarge from industrial facilities, to finance approximately, 96% of its budget with the remaining four percent coming from general revenue. Thus, from a business perspective, it would appear that the concept of polluter pay is unfairly apportioned. Environmental protection legislation should recognize unique local conditions and provide the flexibility necessary to address them. This principle recognizes that environmental conditions differ from region to region as do economic and social 1 3 1 T Galimberti, Address (British Columbia Ministry of Environment, Lands and Parks to the Business Council of British Columbia, Vancouver, 18 July 1996). Data presented for the United States showed that for estuaries, nonpoint sources accounted, municipal point sources and industrial point sources accounted for 45%, 22%, and 8% respectively; for lakes, nonpoint sources and municipal point sources accounted for 76% and 8% respectively (industrial point sources did not register); and, for rivers, nonpoint sources, municipal point sources and industrial point sources accounted for 65%, 17%, and 2% respectively. - 84 -needs. It recognizes that imposing minimum standards that do not reflect local conditions may be ineffective and inefficient. This principle incorporates other principles that have already been addressed and reflects the need to be able to determine and set local ambient standards, establish environmental protection goals, consider social and economic factors, determine priorities, and implement a plan of action. This approach has been partially provided for in drafts of BCEPA. However, in order to truly facilitate this approach, legislation must incorporate mechanisms for setting standards and creating cooperative approaches to achieve consensus on priorities and action plans after consideration of economic and social concerns as well as environmental considerations. With the wide range of views and principles proffered during the consultations on BCEPA, the process was unable to move towards any consensus on the appropriate contents of a new act, let alone definitive wording for such an act. As the consultation process wore on through 1994, it became clear that finding general agreement would elude the participants. Consultations on BCEPA came to an end in the fall of 1994. The draft act was incomplete at the time and was subsequently shelved. What did emerge from the BCEPA consultation process, however, was yet another stakeholder consultation. Only this time it was to find a replacement for the BACT policy. A small taskforce, consisting of eight representatives of environmental and private sector interests, was given the task of developing a policy to be used by MELP for setting guidelines and standards. Although the Pollution Prevention Guidelines and Standards - 85 -Working Group, as it was formally called, did not have a mandate to reach consensus, the consultations did represent movement by diverse interests toward a more unified understanding of factors that ought to be considered in setting guidelines and standards. The expectations of the Working Group are reflected in the draft policy that is discussed in the next section. 3.6 Reconciling Expectations It is clear that given the great number of expectations expressed by various stakeholders it may be difficult to achieve a sufficient merger of interests to allow for progress on environmental protection to move forward in a unified fashion. This section will highlight the different perspectives held by stakeholders in regard to some of the key principles of environmental protection. The development of a British Columbia Pollution Prevention Guidelines and Standards Policy (the "Guidelines and Standards Policy" will be considered as a backdrop for this discussion. Examination of the policy demonstrates that general agreement on concepts may break down upon closer scrutiny of each stakeholder's understanding of how a concept or principle should be implemented. Although it has not been formally adopted, the Guidelines and Standards Policy is likely in its final draft form and could be in place at any time. The purpose of the policy as set out in the latest draft is: - 86 -"to establish a framework for setting Guidelines and Standards designed to protect the environment and promote sustainability by integrating environmental, economic, health and social considerations."132 In the case of the Guidelines and Standards Policy, the stakeholders have provided input and the ministry has drafted a policy without attempting to come to a consensus. Nevertheless, the participants did come reasonably close to agreement on several of the principles included in the policy. It is proposed that the policy include ten principles that will form the basis for setting guidelines and standards in British Columbia for discharges, products, procedures, and ambient conditions. Although there is no stated pecking order, the principles appear to have been set out in an order that reflects the level of concern of some of the participants. The principles, which are summarized below, may become a reflection of expectations for the setting of guidelines and standards in British Columbia in the years ahead. Briefly, the policy will require regulators to consider the following factors when determining guidelines and standards: 1. Ensure ecosystem integrity - interdependence of biota and the delicate balance between various ecosystem components (air, water, aquatic life, wild life, land, etc.) in an ecosystem must be considered as well as the components themselves; 1 3 2 Environmental Protection Department, Ministry of Environment, Lands and Parks, Environmental Protection Department Guidelines and Standards Policy - DRAFT, (Victoria: 22 April, 1996). -87-2. Compliance with or excedence of all applicable international, national, bilateral and regional agreements, protocols and conventions on environmental matters; 3. Compliance with or excedence of all provincial reduction and elimination targets and requirements; 4. Adherence to the precautionary approach; 5. Anticipation of and prevention against the adverse effect of substances on the environment - in anticipating adverse effects, the province will be expected to have regard to the inherent characteristics of a substance (i.e., its degree of persistence, bioaccumulation, and acute/chronic toxicity). In heeding the concerns of business interests, the ministry has noted in the explanation of the principle that its application will rely on scientifically based assessment. 6. Use of best available techniques - here the ministry has made an attempt to revisit BACT by putting a new slant on the definition. As contemplated, A best available technique is a technology or method of operation which achieves operational or production goals with the least impact on the environment. In determining whether a technology or method of operation constitutes the best available techniques, consideration will be given to: (a) adherence to the pollution prevention hierarchy; - 88 -(b) techniques proven successful under similar conditions for a minimum of six to twelve months in the province or other comparable jurisdiction; (c) commercial feasibility; and (d) prevalence of use amongst comparable jurisdictions. The best available technique for a particular process or method of operation will change over time in the context of technological advances, economics and social factors as well as changes in scientific knowledge and understanding. In some cases, particularly when a substance's inherent characteristics include persistence, bioaccumulation or toxicity, the best available technique might not sufficiently protect the environment. In that situation, Guidelines and/or Standards of zero discharge or the lowest achievable discharge rate may be appropriate. Application of the pollution prevention hierarchy. Maximization of net environmental, social, health, and economic benefits - this principle seeks to ensure that guidelines and standards take into consideration and seek to balance social, health, economic and environmental considerations. Ensure the polluter pays', and, Ensure consistent protection of ambient air, water, and soil quality - this means establishing province-wide discharge rates or ambient concentrations that consistently protect ambient air, land, and aquatic environments. Ibid, at 3; - 89 -These principles and the consultation that took place around the formulation of the policy may become a starting point for the next attempt to create a new environmental law for British Columbia. Therefore, an analysis of how stakeholders interpret these principles may shed light on how far we as a society have come or, conversely, how far we yet to go before achieving consensus on how to protect the environment. Three key principles found in the draft Guidelines and Standards Policy will be considered in order to highlight different perspectives; these are sustainable development, the polluter-pay principle and the pollution prevention hierarchy. Sustainable Development Anyone who has studied environmental law and policy is likely to be familiar with the concept of sustainable development. As discussed earlier in this chapter, the classic definition comes from the Brundtland Report: development which meets the needs of present generations without compromising the ability of future generations to meet their own needs.134 Most business interests are supportive of the concept of sustainable development because they interpret the principle to mean that industrial development is a good thing, so long as it is balanced with environmental considerations. Many environmentalists, on the other hand, are apparently uncomfortable with the notion that the sustainable development concept should be the central principle in laws and policies Supra, note 74. - 90 -intended to protect the environment. Their concern is that the environment may not be given overriding consideration if decisions must be balanced against economic and social considerations. Some environmental advocates argue that the environment ministries have no business focusing on anything but environmental protection, regardless of cost or other implications external to the environment itself. These views were reflected in the BCEPA consultations. For example, the West Coast Environmental Law Association ("WCELA") urged the ministry to include a "purpose section" in BCEPA that would focus on "sustainability of the environment", rather than sustainable development. To this end, WCELA recommended the inclusion of following wording: "2(1) The purpose of this act is to provide for the protection, conservation, and sustainability of the environment by... (e.2) protecting the right of present and future generations to a healthful environment:... (g) recognizing British Columbia's economic prosperity depends upon a healthy environment and sound environmental management:"135 WCELA also recommended that the act state that "the first responsibility of the minister is to promote the protection of the environment and sustainability".136 1 3 5 A. Hillyer, "Recommendations for Improvements to Proposed British Columbia Environmental Protection Act Draft Dated June 30, 1994", (West Coast Environmental Law Association: 15 August 1994) 7. 136 Ibid. - 91 -It is interesting to note that the draft BCEPA and the current draft Guidelines and Standards Policy, the ministry appears to attempt a reconciliation of environmentalist and private sector views on sustainable development. As noted above, the draft BCEPA would have made "sustainable management of the environment" a central purpose of the act. Under the proposed Guidelines and Standards Policy, the purpose of the policy will be to "promote sustainability by integrating environmental, economic, health and social considerations."137 Furthermore, the eighth principle would require regulators to ensure that "guidelines and standards take into consideration and seek to balance social, health, economic and environmental considerations." Use of this wording would appear to favour approaches to policy-setting supported by the private sector. On the other hand, use of the term "sustainability" and inclusion of other principles such as ensuring ecosystem integrity and the precautionary principle tend to support environmentalist perspectives on how guidelines and standards should focus first and foremost on environmental protection. Polluter Pays Principle The polluter pays principle is central to government thinking on allocation of financial responsibility for cleaning up the environment, particularly in the area of contaminated sites. There appears to be a general consensus on the notion of polluter-pay in regard to present-day activities. However, there are dissidents among the business community in regard to 137 Supra, note 132 at 1. - 92 -the application of polluter pay to past activities. Some business interests today are being called to account for decisions made decades ago with the complete sanction and often encouragement of government, and by extension society. Those business interests would argue that it is not equitable to retrospectively allocate liability solely to surviving businesses or current property owners when others, including governments, communities, and citizens benefitted from and approved the conduct. In those circumstances, a "beneficiary pays" principle would seem appropriate. From a business perspective, general consensus on shared responsibility for correcting environmental effects of the past would be seen as a positive step towards establishing a cooperative approach to environmental protection that will facilitate agreement on priorities. The Pollution Prevention Hierarchy Unless the federal and provincial government agenda changes, pollution prevention is set to become the primary focus of environmental protection in years to come. Although the concept has been around for several years, there remain different views in British Columbia on what activities should be included within its hierarchy. Pollution prevention contemplates an approach to environmental protection that focuses on avoiding the creation and production of polluting products and utilizes a hierarchical 1 3 8 For more on retrospectivity see: W. Stanbury, ed., Retrospective Liability (1995) 29 U.B.C.L.R. 1. - 93 -checklist for decision-making in regard to the handling of what are termed "polluting products". The definition of pollution prevention varies from jurisdiction to jurisdiction. In British Columbia, it has gone through changes and been massaged into a hierarchy that is meant to be a compromise to satisfy most interested parties. For the moment, in British Columbia, pollution prevention means "to avoid, eliminate or reduce the creation, the use or the release of polluting substances."139 The pollution prevention hierarchy is as follows: To avoid the creation of polluting substances or to eliminate the release of these substances to our environment through a hierarchy of activities including the: (a) avoidance, elimination or substitution of polluting products; (b) reduction in the use of polluting products; (c) elimination of, and reduction in, the generation of polluting by-products; (d) reuse and recycling of polluting by-products; (e) recovery of energy from polluting by-products; and if necessary, (f) treatment or containment of polluting residual by-products; and, (g) remediation of contaminated sites.140 Some environmental advocates believe the pollution prevention hierarchy as contemplated is flawed because it mixes the meaning of pollution prevention with pollution control. They argue that pollution prevention "demands a conscious shift in thinking that prevents the creation of pollution in the first place. The current definition of pollution prevention in the [draft 139 Pollution Prevention and Pesticide Management Branch Strategic Plan 1995-i997(Victoria: Queen's Printer for British Columbia, 1995)13. 140 Ibid, at 14. - 94 -BCEPA] Act is confusing since it includes some prevention, some pollution control and some pollution remediation."141 In its submission on BCEPA, WCELA advocated that pollution prevention must be limited to activities that eliminate or reduce at the source the use, generation, or release of toxic pollutants, hazardous substances, and hazardous wastes. In making this argument, WCELA quoted and endorsed the 1994 Pollution Prevention Evaluation Report of the Minnesota Office of Waste Management: "Pollution prevention is an environmental protection method that is fundamentally different from approaches that focus on managing or controlling pollution after it has been generated. Pollution prevention occurs before the creation of a waste or a pollutant, and thus before the implementation of waste management alternatives such as pollution control, treatment, recycling or disposal."142 Under this interpretation, pollution prevention would not include out of process recycling143 on the basis that it is a measure that would be aimed at dealing with waste after it has been created. The expressed concern here is that out of process recycling can allow operators to consider "add ons" to existing practices rather than making fundamental changes. Another concern is that out of process recycling can create pollution and waste while increasing risk to workers, consumers, the community and the environment.144 In keeping with its interpretation of pollution prevention, WCELA recommended the following definition: 141 Supra, note 135 at 12. 142 Supra, note 135 at 12-13. 1 4 3 Out of process recycling is recycling that takes place outside of the facility where a substance is generated. 144 Supra, note 135 at 13. -95 -"pollution prevention means to avoid, eliminate or reduce from all sources the use, generation or release of polluting substances, including toxic substances, or the manufacture of products with polluting or toxic constituents, by means of activities including (a) avoidance and elimination of polluting substances; (b) substitution of polluting substances with less polluting substances; (c) reduction of the use of polluting substances; (d) elimination and reduction of the generation of polluting substances; and (e) in process recycling and reuse or onsite closed loop recycling." Many business interests would take a markedly different view of pollution prevention. If one accepts the definition of pollution found in the Waste Management Act, being that "pollution means the presence in the environment of substances or contaminants that substantially alter or impair the usefulness of the environment."145, then a substance that is used, recycled and re-used is not a pollutant. Yet, the interpretation of pollution prevention advocated by WCELA would label a substance as a "pollutant" by its nature and when it is produced, rather than on the basis of how it is used and stewarded once it has been produced. Herein lies the author's initial concern with the pollution prevention. In the author's view, pollution prevention should focus more on how substances are used, rather than attempt to classify a substance as a pollutant by virtue of its physical attributes. Many substances, be they natural or anthropogenic, have the potential to be very beneficial or harmful to the environment, depending on how they are used. Water is perhaps the most obvious example of this fact. A more controversial substance would be lead. According to many environmentalists, lead should be near the top of the list of substances for elimination. Yet, it is lead acid batteries that are most likely going to be at the heart of the first 1 4 5 Supra, note 41. -96-generation of environmentally-friendly electric vehicles. Moreover, lead is completely recyclable and lead recycling is approaching one-hundred percent in Canada. The debate over elimination of lead has gone on for years and has resulted in its elimination of products of concern - paints and gasoline - so that now risks associated with lead in Canadian products no longer pose a significant threat to health in Canada. Concern over a broad and imprecise definition of "polluting products" was brought to the attention of MELP. 1 4 6 It was further stressed that it was really a case of how substances are used and managed that determines whether pollution may result. With this in mind in was suggested that the wording of the hierarchy be changed to focus on uses and management of substances "so as not to cause pollution". Thus, what was sought was an acknowledgement and recognition that products and substances do not in and of themselves pollute; it is a lack of human stewardship or natural occurrences that result in pollution. If the narrower interpretation of pollution prevention espoused by WCELA were implemented, a broad interpretation of "polluting substances, including toxic substances, or the manufacture of products with polluting or toxic constituents" would potentially eliminate a multitude of products and substances in use today. This distinction is important to a company like Cominco that concentrates and refines many of the Earth's natural elements. 1 4 6 The pollution prevention hierarchy refers to "polluting products". Under the draft BCEPA language, a "polluting substance" is "any substance that alone or in combination with other substances causes or is capable of causing pollution." As noted earlier, "pollution" is defined in the Waste Management Act. Although "product" has not been defined, it is has come to be used to describe any output produced by an activity. Therefore, as is the case with the Waste Management Act definition of pollution, "polluting products" could include any substance that could impair the environment. - 9 7 -While some would view heavy metals as polluting products, the fact is that they occur naturally all around us and cannot be eliminated. However, they can be used beneficially while limiting their application to uses that, if properly controlled and managed, do not threaten human health and the environment. For companies like Cominco, this is an appropriate approach to pollution prevention. Although MELP declined to modify its definition of the pollution prevention hierarchy, it agreed that the definition could be interpreted this way. The interpretation of what constitutes pollution prevention is also a concern. The notion expressed by WCELA that out of process recycling and pollution control measures should not be viewed as pollution prevention seems to ignore the central thrust of achieving environmental protection in favour of correct thinking "that prevents the creation of pollution in the first place."147 If pollution prevention planning becomes a central activity for environmental protection, it would make sense to consider all means available to reduce pollution and protect the environment; assess risks and determine priorities; evaluate alternatives; and make decisions on the basis of what will be most practical and effective in protecting the environment. It would therefore make sense to encourage a broad approach that considers a wide range of options, rather than limiting what may be considered to activities such as changes in production processes and inputs, redesign of products and improved production management, as advocated in the WCELA recommendations148. Supra, note 135 at 12. Supra, note 135 at 13. - 98 -In the next chapter, an examination will be made of several initiatives that utilize approaches to environmental protection requiring cooperation among various stakeholders. That analysis should be indicative of whether it is realistic to anticipate that a merger of stakeholder expectations could occur. The questions that might be considered as one looks at those programs is how they have addressed the expectations of interested stakeholders, what expectations outlined in this chapter have been addressed, and most importantly, are the initiatives accomplishing what they set out to do? -99-Chapter Four Environmental Protection Through Cooperative Initiatives 4.1 Introduction Since the late 1980s, a new trend in environmental protection has been emerging. Government regulators have sought alternative means to address environmental problems beyond the traditional approaches of command and control and end of pipe regulations. The reasons for this shift may be seen as a reflection of the demands of society and the greater attention given to environmental protection within the political realm. At the same time that humanity's impacts on the environment have become increasingly obvious, scientific and technological advances have enabled more accurate measurement of environmental effects and fuelled speculation concerning future implications. Moreover, the advent of a so-called "information age" has made available more information to more people than at any other time in history. This phenomena has generated opportunities for global awareness of environmental problems. In turn, this has led to greater dissemination of information to interested stakeholders and given them a voice with which to influence decisions affecting the environment. Among stakeholders, the environmental non-governmental organizations have been most effective in utilizing communication technology to disseminate information on environmental issues and in turn influence political decision - 100-making and bureaucratic responses.149 Opportunities for greater awareness and dissemination of information have in turn led to demands for more information and accountability. The interested public and stakeholders seek information in regard to a myriad of environmental issues ranging from identification of "polluters", statistics on enforcement of existing environmental laws, information on environmental effects resulting from industrial and other activities, and information on regulatory policy initiatives and legal reform. At the same time, the interested public has sought avenues to voice concerns and influence policy directly rather than through traditional political representation. Thus, there has emerged a greater emphasis on public consultation and empowerment. In British Columbia for example, stakeholder consultation has become a standard practice in the drafting and implementation of new laws and policies in regard to the environment.150 Although society's expectations will be discussed in greater detail in Chapter Four, it is important to mention the subject here to put into context the emerging trends of environmental protection. At the same time that society's expectations of government have increased in regard to environmental protection, the human and financial resources available have been cut back through efforts to contain deficits and shrink the size of government. While this is 1 4 9 While Environmental Non-Governmental Organizations have been quick to utilize tools of mass communication effectively, industries have been cautious in utilizing the Internet and the media as a tool. 1 5 0 For example, extensive consultations were held by the British Columbia Ministry of Environment, Lands and Parks in regard to several regulatory and policy initiatives including the drafting of a new British Columbia Environmental Protection Act, regulations to support Bill 26 - the contaminated sites legislation, proposals for an Environmental Bill of Rights, and drafting of a Environmental Protection Department Guidelines and Standards Policy. - 101 -particularly true in Canada, it is an occurrence that is also recognized in other developed countries151. These factors have led to the realization that governments alone cannot be responsible for protecting the environment. Responsibility must be shared with the entities whose activities and decisions may directly or indirectly affect the environment. There are, of course, other factors which have compelled governments and other stakeholders to seek new approaches to ensuring environmental protection. This chapter will consider the factors that have led stakeholders - government, industry and other interested parties - to seek cooperative solutions to achieve improved environmental quality and protection. Particular emphasis will be placed on the circumstances that lead stakeholders to take cooperative initiatives, the process of getting them into operation and following through, and the logistics and challenges of coordinating input and making decisions leading to action. The purpose in doing this is to familiarize the reader with the practicalities of pursuing voluntary initiatives involving the participation of multiple stakeholders. The intent is to gain a sense of whether and how the principles and objectives discussed in the next chapter can be incorporated into voluntary initiatives. Each voluntary initiative described below is different in size and scope and has been chosen in part for that reason. The initiatives are presented in order of chronology. This is important because the social and political conditions that have given rise to each may be seen as reflecting a progressive change in attitudes over time. Moreover, the occurrence of two of the initiatives, the Dutch Covenants (a national program) and the Trail Lead 1 5 1 With respect to developing countries, those governments have tended to focus priorities on providing the basic essentials of life and have had relatively little political incentive to focus on the environment. - 102 -Program ( a eommunity program) may have indirectly influenced the creation of the OECD Lead Risk Reduction Program (an international initiative). Each of these initiatives has a different focus and was established for a different purpose; yet, common threads run between each program - each was established as an alternative to traditional regulatory approaches and each requires the participation and cooperation between the public and private sectors. The British Columbia Pollution Prevention Demonstration Projects will be the last initiative to be discussed. This initiative is a pilot for a new system of pollution prevention planning that is intended to form the nucleus for authorizing industrial activities with the potential to affect the environment. This examination of cooperative initiatives begins with a discussion of the Dutch Covenants. What the reader should consider is the detailed process and long term view that the Dutch have embraced in pursuing a national strategy to achieve sustainable development. 4.2 The Dutch Covenants - Setting Targets and Gaining Industry Commitments In 1987, the World Commission on Environment and Development published Our Common Future. The Dutch Government embraced the concept of sustainable economic development and set to the task of preparing a strategy for achieving it. A year later, the Dutch National Institute of Public Health and Environmental Protection released a study entitled "Zorgen voor Morgen" which in Dutch, has two meanings: "worries about tomorrow" as well as "care for tomorrow". The study examined the quality of the national environment. It contained a quantitative assessment of emissions and discharges into the - 103 -Dutch environment at that time. In addition, it set forth a series of reduction targets which would need to be realized in order to achieve sustainable development. The target was to achieve those reductions within one generation - by the year 2015.152 With the information provided in the care for tomorrow study, the Dutch government prepared a strategy and set out an overall objective and environmental policy to solve the identified environmental problems, or at the very least, control them within one generation. Referred to as the National Environmental Policy Plan, the plan sets national targets to be met by the years 2000 and 2010 for various environmental measures ranging from reduction of emissions to limits on production of waste.153 The primary objective identified in the plan is to maintain the carrying capacity of the environment in order to achieve sustainable development. The Dutch have assumed that the carrying capacity of the environment is impaired if environmental impact cannot be reversed within the same generation. This is consistent with the concept of sustainable development which requires that the ability of future generations to meet their needs not be compromised by the present generation. In their national plan, the Dutch envisioned a new approach to achieve targets. Rather than implementing new laws and regulations, it was determined that identified target groups would be approached and called upon to take responsibility. How did this new approach come to pass? At the time that Dutch government was working on the plan, industry was 1 5 2 L. van Bodegom, "The Dutch Industry Declaration of Intent" (Address to the GLOBE 96 Environmental Conference, March 1996 [unpublished]. 1 5 3 Ministry of Housing, Spacial Planning and the Environment, Department for Information and International Relations, The Netherlands' National Environmental Policy Plan,(the Hague: the Netherlands, 1989). - 104 -consulted and asked for their views. Broadly speaking, industry was faced with two alternative responses. The first would be to take the standard industry approach that the targets were unacceptable unless it could be proven that they were both technologically and economically attainable. The second was to accept the government's proposed approach provided that industry was involved in determining how implementation would be carried out. Industry's consideration of these alternatives was outlined in a speech by Dr. Joop Kleibueker at the Globe '96 Conference in Vancouver on the topic of "Are the Dutch Covenants Working?"154 Dr. Kleibueker candidly pointed out that Dutch industry chose to cooperate in achieving the government's policy for several reasons. First of all, the social and political climate did not allow for any other choice; secondly, it was imperative that industry work towards environmentally acceptable production systems if it is survive in the future; thirdly, third parties such as banks, auditors, insurance companies, shareholders and consumers, are increasingly making demands of companies with regard to environmental requirements; and fourthly and finally, it was recognized that cooperating with government opened a possibility for industry to affect government policy.155 The suggestion that societal expectations did not allow industry any other choice begs the question: "If there is no alternative, but to participate, then is participation voluntary?" In fact, there was at least one alternative, that being for industry to remain with the traditional permitting and licensing system. It may not have been a preferable choice, but it was one that each party 1 5 4 J. Kleibeuker, "Are the Dutch Covenants Working?" (Address to the GLOBE 96 Environmental Conference, March 1996) [unpublished]. 155 Ibid, at 2. - 105 -could resort to if need be. The importance of maintaining the ability for each party to resort to another alternative is that it maintains some equality of bargaining power, without which an equitable partnership could not exist. For the Dutch Government, the scope and demands of upholding its responsibilities in environmental protection gave it the incentive to seek alternative means of delivery. As is the case in Canada, the Government of the Netherlands faced challenges in administering its own industrial pollution control system. In the Netherlands, pollution control is managed by a decentralized licensing system which calls upon local, regional and water management authorities to grant and administer licenses. Within that system, there is significant discretion in decision-making with respect to emissions control standards and enforcement policies. Under that management system, government was expected to ensure that all industrial facilities operated under appropriate standards. Ensuring the adequacy of standards and compliance required time-consuming and costly monitoring by the government. In the Dutch experience, there was a wide divergence in environmental performance standards. Inconsistencies in standards and enforcement hindered not only environmental performance but also produced inequality amongst competitors within the Dutch industry. Given the ambitious goals and vision by the national plan, it became all the more important to ensure a uniformly fair and efficient implementation process throughout industry.156 1 5 6 J.A. Suurland, "Agreements with Industries: The Dutch Covenants" (Address to the GLOBE 96 Environment Conference, March 1996) [unpublished]. - 106 -With these incentives in mind, the positions of industry and government switched from opposition to consultation and cooperation on environmental affairs.157 Immediately after release of the national plan, a Central Committee on Environment and Industry was established. The Committee included representatives from industry, trade unions, licensing authorities and control government ministries.158 Under the auspices of this Committee, procedures were developed to facilitate cooperation and resolve disagreements. The Committee produced several guidance documents for the target group management approach which, in turn, led to the concept of utilizing covenants involving industry.159 Fundamental to the covenants concept was the notion that it is essential to efficiently use available resources and skills of both government and industry to meet environmental goals. Government gained from the voluntary participation of industry, which enabled it to apply more resources to achieving its targets. Industry gained certainty in terms of the government's regulatory agenda and this in turn assisted in long term planning.160 The idea of industry and government working cooperatively generated concerns among other stakeholders that environmental regulation would be softened. However, it is an underlying premise of the Dutch Covenants that they will not replace laws or licences and that the Supra, note 154 at 2. Supra, note 156 at 3. Supra, note 156 at 3. Supra, note 154 at 3. - 107 -covenant process should lead to a legal framework for environmental policy that fits within the development strategy of industry. Since inception of the covenants process, over 70 environmental covenants have been signed covering the following areas: reduction of emissions into the atmosphere, soil and water (12 covenants signed); improvement in environmental quality of products (19 covenants signed); energy conservation (31 covenants signed); and miscellaneous (10 covenants signed).161 In regard to setting targets, the national plan utilized a target group approach to identify specific sectors responsible for contributing emissions and discharges as well as resource conservation targets. These sectors include industry, energy conversion, agriculture, building and construction, traffic and transport, waste management services and consumerism.162 In keeping with the focus of this thesis, the analysis of Dutch Covenants will be limited to those aspects associated with agreements with industry. These may be divided into two broad categories. Those dealing with product related issues, such as packaging, waste prevention and recycling and, secondly, agreements dealing with production process controls (ie, reduction of emissions). In general, the national plan calls for emission reductions of up to 50%-70% by the year 2000 and 70%-90% by the year 2010 compared to 1985 levels. Set out in the table below are the reduction targets for various environmental measures for the years 2000 and 2010: 161 Supra, note 154 at 3. 162 Supra, note 156 at 1. - 108 -Summary of NEPP Targets for Industry 2000 201Q Climate change ozone depletion C02(base-year 1989) -3-5% Acidification (1985} so 2 -80% -90% NO x -60% -90% voc -60% Diffusion (1985) Heavy metals -50-90% -80-99% toxic chemicals -50-90% -50-99% Eutrophication (1985) Nitrates -70% -75% Phosphate -75% -95% Waste Disposal Prevention 10% Re-use/recycling 68% 60.106 tons Incineration 15% Landfill 7% One of the first tasks in expediting the covenant process was to establish an industry-wide inventory of current emissions to act as a baseline reference for the development of emission reduction and resource conservation targets to be met by different sectors within industry. Once completed, the inventory was used to identify 13 environmental sectors involving over 12,000 companies. Overall, these sectors were estimated to account for approximately 90% of industrial pollution in the Netherlands.163 In addition to the Supra, note 156 at 3. The specific industries sectors are set out below: Printing and packaging printers Base metals Chemicals Dairy Metal products and electronics Textiles Abbatoirs/meat industry Paper and paper products Leather - 109 -inventory of current emissions, a sectorial pollution matrix was created in which data for each industry branch was assessed in terms of its relative contribution to the environmental problems identified (ie, climate change, acidification and spread of toxic chemicals). This helped to identify the major polluting subsectors which in turn became priority targets. Next, a database was developed which integrated sectorial data with the targets set out in the NEPP-1 and other relevant policy documents. This enabled a quantification of the emission reductions necessary from each sector in order to meet the proposed targets.164 Using the database as a guide, the covenant negotiation process begins with consultations between the central government, representatives of provincial and municipal government and representatives of the relevant industry sector. Industry representatives typically include trade associations and on some occasions, representatives of trade unions. The purpose of the preliminary discussions is to reach agreement and commitment on the environmental objectives set out in the national plan. Next, the structure of the covenant is drawn up in a declaration of intent which sets out the commitment of the industry associations, and government to pursue measures to achieve the Integral Environmental Target Plan (IETP) for that particular sector. The IETP consists of all national plan policy objectives including energy conservation pertaining to the sector for the years 1995, 2000 and 2010. Each Rubber and plastic products Brick and roofing tiles Concrete and cement products Other mineral products. 1 6 4 E. Matthews, "Environmental Policy and Action No. 1: Working with Industry" (Ministry of Housing, Spatial Planning and Environment, Department for Information and International Relations, The Hague, The Netherlands, 1994) 2. - 110-covenant is viewed as an agreement having the status of binding contracts under Dutch civil law.165 Once general agreement on the targets has been reached, a covenants process from that point on may vary depending on the nature of the industry in question. Homogenous sectors (those using similar production processes) can adopt a standardized approach while heterogenous sectors involving complex and unique industrial processes will require more individual approaches and specific environmental plans for each facility. By way of illustration, the printing industry would be considered a homogenous sector. In 1993, an environmental agreement was entered into between representatives of the government, ministries of environment, economic affairs and transportation and public works, provincial and municipal organizations and trade associations representing the printing and packaging industries of the Netherlands.156 The agreement includes a framework for developing detailed implementation programs for specific industries within the sector, such as the graphics industry. The implementation plan sets out overall objectives and conditions of the agreement, measures to be taken in order to achieve environmental targets for emissions to air and water, chemical and solid waste and energy consumption; a timetable for implementation; and organizational and procedural arrangements outlining responsibility, monitoring arrangements and communications provisions. The plan is followed both by companies and licensing authorities. It should be 165 Ibid. 166 Ibid, at 8. - I l l -noted that progress from general agreement with targets to a detailed implementation plan has been a time-consuming process. In the case of the printing sector covenants, it took over two years of negotiation between government and the industry to determine the most appropriate measures to achieve targets and how to measure progress.167 In heterogenous sectors, such as the base metals and chemicals industries, the negotiation process can become even more complicated due the differences in technology and processes among all the participating operations. For the base metals industry, the negotiation of a declaration of intent took approximately 18 months. The declaration of intent includes emission reduction targets for the years 1994, 1995, 2000 and 2010, objectives for energy efficiency, noise control and clean-up of contaminated soils. Because of the great variation in industrial processes in the metals sector, it was agreed in the declaration of intent that individual facilities would prepare company environmental plans (CEPs) and submit them to the licensing authorities. The licensing authorities would in turn use the CEPs as the basis for licensing with each operation. The declaration provided for the establishment of an Industry Consultation Committee (ICC) to oversee implementation of the covenants. It also contains provisions for periodic progress reports and set out a communications strategy for companies and the various licensing authorities. Ibid, at 9. - 112 -While the CEPs may contemplate the implementation of different measures, there are certain elements that are common to all: all plans must cover a period of at least four years and include a projection of activities contemplated for the following four years; each CEP will contain an inventory of polluting emissions and energy consumption for the base year; each CEP will outline the emission reductions achieved and anticipated under existing policy and licensing requirements together with a summary of proposed additional measures that will be implemented to help achieve the sectoral IETP. each CEP will identify potential impediments to the implementation of proposed measures. These may include, for example, changing economic and market conditions and changes in technology. each facility is expected to commit to the use of best available technology.168 In addition to common elements, each CEP may contain specific provisions for actions that are unique to a facility. These could include anything from research and investigation of particular issues, development of new processes, investments in new equipment, or phase-out of old operations. CEP's are intended to set out a proposed plan to achieve the target commitments, allowing for flexibility along the way. They are not fixed agreements, nor are they merely statements of good intention without commitment.169 They require the involvement and endorsement of senior management and thereby call upon the commitment Supra, note 164 at 7. Supra, note 154 at 10. - 113 -and integrity of individual business leaders. At the same time, since the covenants apply to entire industry sectors, participating companies may use moral suasion or simply decline to do business with facilities that decline to contribute their share to meeting industry targets. The inherent flexibility of CEPs allows government authorities to gain commitments on actions that are typically difficult to incorporate in permits. This allows for a shift in emphasis from end-of-pipe controls to pollution prevention initiatives and commitments on energy conservation. With the covenants, industry must take responsibility for determining how goals and targets are both set and reached. This gives facilities managers the flexibility to determine how best to achieve to environmental targets in keeping with business plans. Conversely, this approach forces managers to make decisions with both business and environmental considerations in mind. By ensuring that common elements are found in each CEP, it becomes possible to draw comparisons and evaluate progress. This is being carried out through periodic reporting that allows licensing authorities to monitor each facility to determine if it is meeting its objectives. In addition, the information from individual facilities can be combined to estimate whether the industry as a whole is meeting the targets set out in the covenant. Analysis of this information will identify where targets are being met or exceeded or where additional measures may be in order.170 Supra, note 164 at 8. Initial Results - 114 -The metals sector was the first industrial group to complete its CEPs. This has enabled an evaluation of progress against the targets set for 1995. Results are summarized in the table below. 1995 2000 Target CEP's Target CEP's Acidification sulphuroxide 35% 28% 75% 56% nitrogenoxides 25% 14% 55% 16% Diffusion to Air fluorides - - 80% 23% fine particles - - 75% 60% zinc 50% 46% 50% 49% lead 70% -37% 70% 90% chromium 50% 29% 50% 60% arsenic 50% 63% 50% 63% PAH's - - 80% 70% hydrogen sulphide - - 50% 49% Diffusion to Water phenols - - 50% 99% zinc 65% 86% 65% 90% lead 65% 73% 65% 78% nickel 50% 38% 50% 60% mercury 25% -21% 50% -15% hydrogen sulphide - - 50% 81% Eutrophication 61%171 nitrogen 40% 61% 70% 171 Supra, note 156 at 6. - 115 -These results show that only 4 out of 11 target parameters were met or exceeded by 1995. The major contributing factor in limiting progress has been economic setbacks to the industry. The collapse of world market prices for steel and aluminium has eroded financial reserves available for capital projects, including environmental investments. Dutch authorities have accepted this explanation.172 The significance of the government's acceptance of economic realities should not be overlooked. The fact that the Dutch government is willing to take into consideration poor economic conditions in allowing changes to the time allowed to achieve targets demonstrates its commitment to linking economics and the environment. This is a real advantage for Dutch industry and provides a strong incentive for it to work with the government. If industry can anticipate how government authorities will treat changing circumstances, it will serve to reduce uncertainty and risk. This should generate other favourable results: greater certainty generally tends to attract investment and reduces the cost of borrowing, while enabling better planning. If Dutch industry can proceed with the knowledge that its governing agencies are not going to make unforseen demands, it can incorporate measures to achieve the NEPP targets in ways that are complimentary to other business decisions and focus more resources on creating greater efficiencies and competitiveness. 1 7 2 However, the targets for the year 2000 have been maintained. This means that the CEP's must pick up the shortfall over the next five year period. - 116 -Comments on the Dutch Covenants The Dutch Covenants create potential advantages for both industry and government, which should ultimately benefit the environment. The Dutch approach has been to systematically quantify many aspects of Dutch society's impact on the environment and to apportion responsibility to a selection of identified sectors. The notion of setting targets for improvement over a 20 year period is consistent with sustainable development; (ie.) that the present generation should take steps to ensure that its actions result in an acceptable environment for future generations. This is a logical approach that takes into account society's concern over environmental quality and gains endorsement and buy-in from responsible sectors. Once conditions underlying environmental quality are out in the open, it is difficult for responsible parties to resist taking action.173 By utilizing a cooperative approach, the public and private sectors are gaining a better understanding of the conditions and expectations that each must face. By working through potential conflicts together, there is greater likelihood to reach consensus on priorities and appropriate courses of action. Without such cooperation, it would be more difficult for government authorities to take into consideration circumstances where changing economic conditions dictate adjustments to target timing. Thus, from industry's perspective, the Dutch 1 7 3 As Kleibeuker, (Supra, note 154 at 7), put it in his presentation at the GLOBE 96 Conference: "It is not right to speak of voluntary cooperation. Indeed there is no legal need to come to such covenants, but the social climate in the Netherlands is such that not cooperating would have considerable consequences for the position of the companies within the Dutch society." - 117-Covenants offer an opportunity to negotiate with government on what measures will be carried out, and when. Because targets are applied across whole sectors, there is a reduced risk that individual operations will be discriminated against so as to distort competition within the Dutch economy. At the same time, the Dutch government is responsible for representing Dutch interests internationally, particularly as it pertains to competitiveness. Accordingly, the government is committed to monitoring the development of environmental policies in other countries and is striving to implement a similar target group approach within the European Union174 This may be a significant consideration for North American exporters to Europe who may ultimately find environmental policies used by European countries to justify trade sanctions on the basis of unfair advantages due to less rigorous standards in the producing nations. By providing for monitoring and periodic reporting, there is transparency to the covenants process which helps ensure accountability. This should, in theory, help maintain public confidence. However, there may still be concerns expressed by some that the government will become softer on business than it otherwise would be under command and control. The response to this criticism is that the covenants are not an alternative to regulation and do not take precedence over existing law.175 Supra, note 156 at 8. Supra, note 164 at 2. - 11.8 -For government, there are several advantages to covenants. With the shift from pollution control to pollution prevention, industrial facilities are called upon to introduce processes and take actions to prevent pollution from occurring. They are also required to implement "best available technology" and use the "precautionary principle". It would be difficult to draft and enforce regulation calling for relatively nebulous actions on the part of the regulated. Moreover, the state of the art in regard to best available technology is in constant change. If, in order to enforce these policies, government set up a prescriptive regulatory regime modelled after command and control, the uncertainty could be tremendous and the cost of enforcement much higher than traditional end-of-pipe standards. With the covenants, the responsibility for development of measures to protect the environment is left mostly up to industry. The establishment of CEPs helps to identify the appropriate contribution each facility should make to achieving national environmental objectives. The monitoring and reporting system assists government regulators in evaluating progress and identifying problems, as well as achievements. An added benefit of publishing the expectations on each facility is that failure to achieve targets may give rise not only to censure from the public, but also from other members of the same sector who have made similar commitments and are expected to meet them. Together these factors have the potential to result in benefits for the environment if it means that more resources are focused on environmental protection and enhancement. The notion of setting goals and allocating responsibility amongst responsible parties gives Dutch society a focus and ability to articulate its environmental goals. - 119 -A common theme in environmental discourse is the notion of "think globally, act locally." While the Dutch Covenants contemplate a national agenda and more global thinking, in the next section an initiative based in British Columbia, which began at approximately the same time as the Dutch program, will be reviewed as an example of local action. 4.3 The Trail Community Lead Task Force While the Dutch have demonstrated leadership in developing their national strategy, efforts in Canada to derive national approaches to environmental protection are complicated by complicated divisions of responsibility between the federal and provincial governments.176 As discussed earlier, the provinces bear the lions share of responsibility for ensuring the adequacy of environmental protection at the local level. In British Columbia, the Waste Management Act is the primary environmental legislation. However, the Act has its limitations since its central focus is on the prohibition of pollution and punishment of polluters. The Act can be used to address the actions of polluters, but it is unable to address circumstances where the cooperation of other stakeholders is required. This shortcoming required the Province, Cominco Ltd. and the City of Trail to take a different approach to address the incidence of elevated blood lead levels in children living in the community, which also houses one of North America's largest metallurgical complexes. See Chapter Two discussion of constitutional divisions of power. - 120-In 1989, a study carried out by the Division of Occupational and Environmental Health, Department of Health Care and Epidemiology, University of British Columbia,177 (Hertzman et al.) found that soil lead concentrations and, secondarily, lead particles in house dust, were the principal environmental determinants of elevated blood lead levels in Trail children.178 The study's results showed that: "although blood lead levels had on average decreased from 22.4 ug/dl [micro-grams per deci-litre] for 1-3 year olds in 1975 to 13.8 ug/dl for 2-5 year olds in 1989, 39.4 % of the children tested in 1989 were above the U.S. Environmental Protection Agency's "level of no concern" of 15 ug/dl at the time (US EPA 1986)."179 The Trail Community Lead Task Force (the "Task Force") was a product of findings and recommendations of the Hertzman study. Before addressing the process and activities of the Trail Community Lead Task Force, it may be useful to put the relationship between Cominco Trail Operations and the City of Trail into context. To do this, it is necessary to look back to the origins of both the community at Trail and Cominco itself, for both are inextricably linked. The City of Trail was established over one hundred years ago as a result of local mining activity and the construction of a smelter. Trail began as a landing place along the Columbia River referred to as Trail Creek Landing. In 1890, two French Canadian prospectors struck gold on Red 1 7 7 C. Hertzman, et al, "Childhood Lead Exposure in Trail Revisited" (1991) 82 Canadian Journal of Public Health 385. 1 7 8 S. Hilts, "A co-operative approach to risk management in an active lead/zinc smelter community"(1996) 18 Environmental Geochemistry and Health 17. 179 Ibid. - 121 -Mountain to the northwest of the City of Rossland, six miles from Trail Creek Landing. News of the gold strike started a rush of thousands of fortune-seekers. By 1895, over 2,000 claims were staked in the area. Exploration led to mining. In the early years of production the copper-gold ore was shipped by wagon to Trail Creek Landing and loaded onto sternwheeler steamships and barges and transferred downstream to the United States and transferred again at another point for the final leg of its journey to U.S. smelters.180 In 1896, Fritz Heinz of Butte, Montana travelled to Rossland to investigate the feasibility of building a smelter to handle local ore. The site he chose was Trail Creek Landing, which became known as Trail. A small copper smelter was built and brought into production within a year (no environmental assessment in those days!). Heinz also acquired the rights to build a railroad from Rossland to Trail and built a line north to Castlegar. Interest in Trail was heightened when Canada's first gold ingot was poured there in 1897. However, it was Heinz's interest in railroading that caught the attention of the Canadian Pacific Railroad. The C.P.R. wanted to build a southern route across British Columbia to the Pacific Coast and needed Heinz's railroad franchise. However, Heinz refused to sell the railroad unless the C.P.R. bought the smelter as well. The C.P.R. agreed to Heinz's terms and the Canadian Smelting Works was founded in 1898. With its other rail lines, the C.P.R. had the capacity to generate other opportunities and savings for the Trail smelter operation. There were other ore shippers in the Slocan and East Kootenays and cheaper 1 8 0 "Cominco, A Canadian Enterprise"(1954) 75 Canadian Mining Journal 132. - 122 -coal and coke available via the Crows Nest Pass line through the Rockies. These factors led to the decision to build a lead smelter, which was completed in 1901. In 1906, the Canadian Smelting Works amalgamated with several mines and became "The Consolidated Mining and Smelting Company of Canada Limited", later shortened to Cominco Ltd. In 1910, Cominco purchased the Sullivan Mine, which produced a complex lead-zinc-iron ore. In the early years of operation, high grade lead ore was hand sorted and shipped to the Trail smelter. During the First World War, the Imperial Munitions Board of the United Kingdom requested that Cominco start a pilot plant to produce zinc. Initial capacity of 30 tons per day was expanded and over 20,000 tons of the metal were produced during the last three years of the war.181 Research and development of mechanical and metallurgical processes at Trail resulted in the invention of processes that solved problems associated with the Sullivan ore. A process known as differential flotation enabled production of high-grade lead and zinc concentrates. This meant that Trail could rely on a long term supply of concentrates from Sullivan and created the capacity to expand. In the 1920's, annual lead output at Trail expanded from 13,000 to 150,000 tons and zinc output increased from 18,000 tons to 120,000 tons. By 1930, the Trail operations were also recovering cadmium, bismuth, antimony, silver, gold, zinc and lead. 181 Ibid, at 133. - 123 -When the Second World War broke out, the Trail smelter became an integral part of the Allied war effort. In addition to its lead and zinc production, Cominco brought into production mercury and tungsten operations to supply military needs. Because of its expertise in the heavy chemical field gained through its fertilizer production, the Canadian Government requested the company to expand its own plants and undertake production of ammonium nitrate, resulting in two new plants - one at Trail and one in Calgary. The growth of the smelter facilities created tremendous employment opportunities. By the 1950's, the City of Trail had grown to a community of 8,000 with Cominco providing direct employment for approximately 5,000 people. In the 1960s, Trail citizens were on average the highest paid individuals in Canada. However, all this wealth and prosperity did not come without a cost to the environment. The massive expansion in the 1920's resulted in the emission of sulphur dioxide gas, released during the treatment of zinc and lead concentrates. Released to the air, large volumes of the gas were carried down the Columbia River by prevailing winds and across the border into the State of Washington. In 1927, Washington farmers alleged that the smoke was damaging their crops and made claims against the company that were referred to the International Joint Commission182. The outcome of the case was that Cominco was ordered to pay damages and was required to reduce and control its discharges. To address the problem, the company, through research and innovation, applied present-day pollution prevention theory by making a waste into a product and developed sulphur-based chemical fertilizers. 1 8 2 The Trail Smelter case was the first international case to deal with the problem transboundary transfer of pollution. - 124 -While Cominco has over the years been able to apply in-house expertise to find innovative solutions to many metallurgical process challenges, it required the assistance of the community of Trail and the provincial government to bring down blood lead levels in local children. At the Provincial government's suggestion, the Task Force was put together. Formed in 1990, the Task Force includes representatives of the Ministry of Environment, Lands and Parks ("MELP"), the Ministry of Health, the City of Trail, the Village of Warfield, the Regional District of Kootenay/Boundary, School District Number 11, the Trail and District Environmental Network, the United Steelworkers of America, and Cominco. Initially, community support for the Task Force was limited. Some residents who had been born and raised in Trail, and gone on to raise their own children in Trail and work at the smelter, were sceptical of any concerns associated with blood lead levels. As one local commentator put it: "Typically' it [lead] has been found to depress IQ scores by one to three points on a statistical basis, a change that is much too slight to be perceived individually and which pales in comparison to the impact of the social and economic advantages enjoyed by many Trail children over the years."183 Notwithstanding some local scepticism, the work of the Task Force began in 1991. The Task Force members gather on a monthly basis in meetings that are open to the public. When it was set up the parties agreed that funding for the Task Force would be divided up on the basis of 30% from each of Cominco, MELP and the Department of Health and 10% from the City of Trail. In addition to funding, the province and the company provide technical support. 1 8 3 R. Masleck, "Lead task force battles myriad of opponents" Trail Times (10 November 1995) 4. - 125 -Development of a strategy to reduce children's exposures to lead has been a major challenge. Elsewhere, communities with inactive smelting facilities or mines tended to opt for large scale soil removal to clean-up and permanently remove hazards. The cost in 1990 of removing contaminated soils in the Trail vicinity was estimated to be over $55,000,000. Aside from the cost, the Task Force was concerned that soil removal would create a transient increase in lead exposure. Moreover, even if the contaminated soil was removed, the smelter has continued to emit up to 300 kg/day pending the completion of a new lead smelter. The new smelter, which is expected to be completed by the end of 1996, will reduce lead emissions by approximately 65 %. 1 8 4 Based on these considerations, the Task Force pursued a course of education and individual case management. In addition, an assessment was performed to gain a better understanding of lead exposure pathways. The work of providing community information and case management started with the establishment of voluntary blood screening facilities. These facilities were utilized by 75-80% of local children. Follow-up clinics were held for children showing elevated blood lead levels. The case management component of the program includes increased blood lead monitoring and counselling to provide advice on ways to reduce in-home exposure. Key components of the education program have included advice on personal hygiene, minimization of house dust, and child care to minimize exposure to outdoor sources such as exposed dirt. 1 8 4 R. Masleck, "Children's lead levels show an increase", Trail Times (2 November 1994) 1. - 126 -Not long after the Task Force got started, its members began to receive feedback from the commumty that it wanted something done to improve physical conditions in the community.185 The Task Force decided to pursue actions that could be carried out at relatively low cost. This included a plan to green public areas by planting grass and shrubs in order to decrease children's direct contact with the soil and reduce dust generation. The greening and dust control program focused particular attention on areas identified to have high lead levels. In 1993, a residential ground cover program was introduced whereby householders could receive a 50% rebate on material costs used to cover bare soil in the yards. The results gained by the Task Force have been impressive. In the first year of the program, the average blood lead levels fell 14% between the fall of 1991 and fall of 1992. Average blood lead levels for each year of the program are set out below: Year Blood Lead Level ug/dl 1991 13.0 1992 11.4. 1993 11.1 1994 12.0186 1 8 5 Supra note 178 at 18. 1 8 6 R. Masleck, "Children's lead levels show an increase", Trail Times (2 November 1994) 1. Some explanation of the increase in blood lead levels in 1994 is in order. According to Steven Hilts, the Task Force Lead Program Director, In 1994, the age range of children tested was narrowed to 6-60 months and the outlying areas were eliminated from annual blood lead screening, making comparison with previous years difficult. Comparison with results from the same age and area group from 1991 to 1994 does show that 1994 blood lead 1995 10.4 - 127 -The 1995 results represented the most significant decline in blood lead levels since the initial year of the program. Participation in the voluntary clinic was also highest in 1995 with 83 % of children between the ages of 6 and 60 months being screened.187 Despite its successes, the future of the Task Force is uncertain. Originally, the Task Force was expected to operate until 1998. One of its mandates was to make recommendations on possible options for remedial plans. Ongoing analysis will be required to determine the effect of the new smelter when it comes on line at the end of 1996. Based on the information collected, plans for ongoing activities to minimize lead exposure might be anticipated. However, in the last couple of years, a conflict has arisen over continued funding of the* Task Force. Aside from a general reduction in the availability of public funding, MELP has adopted the polluter-pays principle188 and is against funding any activities in Trail that could be considered remediation and thus a violation of policy. Under British Columbia's proposed contaminated sites provisions, many of the activities already carried out by the Task Force would constitute remediation and it is therefore levels rebounded to approximately what they were in 1992. The rebound does appear to be mostly attributable to protracted hot, dry weather from June through September in 1994. 1 8 7 "Dramatic decline seen in 1995 blood lead levels", The Trail Times (24 November 1995) 13. 1 8 8 R. Masleck, "Lead task force battles myriad of opponents" The Trail Times (10 November 1995)4. Masleck noted that the Task Force was set up under the former Social Credit government and when the New Democratic Party took office it adopted polluter pay. - 128 -questionable whether any provincial participation in the Task Force might be considered contrary to the government's policy.189 This creates a dilemma for the environment ministry since it has actively promoted a cooperative approach. The ministry recognized that the participation of the citizen's and children of Trail could not have been achieved through a prescriptive regulatory approach.190 Although the Task Force's current mandate will end in the next few years, new activities have been proposed that would see the Task Force studying the effects of other heavy metals including arsenic, cadmium, copper, silver, and zinc levels in the local environment.191 Although current funding is expected to cover the initial work, the provincial government may need to choose between continuing its participation in the Task Force or modifying its policy in regard to polluter-pays. Sandy Santori, the Mayor of Trail has expressed concern on behalf of the citizens that if the province pulls out of the program and Cominco is the only other sponsor then the credibility of the program may suffer, with a corresponding decline in support.192 1 8 9 Under the Waste Management Amendment Act, contaminated sites provisions, currently not in force, for the definition of "remediation" would define remediation to include site investigations, analysis and interpretation, and risk assessment and environmental impact assessment.(see: Waste Management Amendment Act, S.B.C. 1993, c.25, s.l.). 1 9 0 L. Rodlie, 'Trail can be proud of its lead program" The Trail Times (7 July 1995) 1. In commenting on the Task Force, Don Fast, the Executive Director of the Environmental Protection Division of the MELP was quoted in the article as saying that: "[Trail has approached lead contamination] with informed concern instead of panic. No [government] regulation could replace the cooperative atmosphere found in this community." 1 9 1 R. Masleck, "Studying Heavy Metal" The Trail Times (6 June 1996) 1. 1 9 2 R. Masleck, "Lead program funding likely to be slashed" The Trail Times (5 June 1996) 1. - 129 -Regardless of its future, the Trail Community Lead Task Force has been successful in bringing together stakeholders from the provincial and local governments, community and union representatives and the company to address a common concern.193 The level of success achieved could not have been realized without cooperation, and in particular, the participation of local parents and their children. It remains to be seen whether the province will continue to participate in the Task Force and what effect that decision will have on the future of the initiative. The environment ministry has made it clear that the provincial government has many priorities to address and fewer resources to manage with than in the past. As discussed in the last chapter, the province has begun the process of revamping environmental laws and shifting its whole approach to environmental protection from pollution control to pollution prevention. The implications of this new approach and the options for its practical application are the subject of a voluntary initiative between the government and private sector that will be discussed in the next section. 4.4 The British Columbia Pollution Prevention Demonstration Projects In Chapter Three, it was noted that the election of the NDP Government in 1991 was followed a period in which the environment ministry pursued a rather frenzied pace of releasing legislative policy discussion papers and embarked on an agenda of legislative 1 9 3 The Task Force received recognition in winning British Columbia's 1994 Minister's Environmental Organization Award. - 1 3 0 -reform of the province's environmental laws. The centrepiece of that reform movement was to be a new British Columbia Environmental Protection Act (BCEPA). The government's stated intention was to introduce omnibus legislation to bring together most of the province's environmental laws in one enactment. In the "politically correct" spirit of transparency and consultation, the government provided opportunities to interested parties to comment on the policy papers and participate in a facilitated consultation process. As draft sections of BCEPA were released it became apparent that the province's intentions went beyond streamlining existing laws and that it intended to introduce a series of new themes. Among other things, the proposed legislation included a "purpose" section that would require regulators to consider a long list of principles before making decisions under the Act; it contemplated new ways to enforce standards through administrative penalties and an environmental bill of rights, and introduced "whistle-blower" protection194; it had sections devoted to regulation of bio-technology; and, under its appeal provisions it provided that any decision of the ministry could be subject to appeal by anyone on the basis that their right to a healthy environment was or could be violated. While many of the provisions contemplated in the draft BCEPA were troublesome to the business community, others, including the concept of pollution prevention, received cautious support. It was during this time that Cominco articulated its own views in its paper Environmental protection - Balancing Environmental, Social and Economic Goals^ 1 9 4 The environmental bill of rights provisions were later withdrawn from consideration after strong criticism from the business community. 195 Supra, note 97. - 131 -Not long after completion of the Cominco paper, the company was approached by MELP in December, 1993 to explore the possibility of creating a pilot project with other industrial companies and industry associations to explore how pollution prevention planning might be used as an alternative to end-of-pipe permitting. MELP wished to establish a partnership with industry to develop a methodology for implementing pollution prevention planning at industrial facilities in consultation with other government agencies and affected stakeholders. Having satisfied themselves that Cominco could endorse the pollution prevention hierarchy, company management entered into negotiations to complete a memorandum of understanding with the province and other participants who included the Canadian Chemical Producers Association, Fletcher Challenge Canada Limited, Tilbury Cement Limited, and Westcoast Energy Inc. The Federal government was also invited to participate through Environment Canada. However, when the invitation was received regional representatives indicated that it could take six months to a year to get a "go ahead" from Ottawa. Rather than wait, it was decided to proceed without Environment Canada, and let them join in the projects at a later date if they so wished. As with the experience of the Dutch, the negotiation process was slow as the parties had to build up a relationship and mutual trust in the process of coming to agreement on the project terms. The negotiations started in earnest in the winter of 1994. Although the basic structure of the memorandum of understanding ("MOU") was completed relatively quickly, it was agreed that each pilot facility and the government should have a relatively clear understanding of the proposed terms of reference for each pilot project before signing the MOU. This meant that rather than entering into an agreement at a corporate level with - 132 -ministry staff based in Victoria, much of the negotiation process was appropriately centred at the operations where the pilots would be carried out and involved both plant management and regional offices of MELP as well as MELP staff based in Victoria. One of the initial challenges faced by MELP was to gain the commitment of regional staff to consider a potentially fundamental shift in the way they managed facilities. A shift from end-of-pipe management was seen by some as a criticism or repudiation of the value of the approaches that many of them had applied for decades. For others, the problem was a lack of resources and capacity to take on new initiatives when staff cut-backs were already squeezing resources. This was a problem with Trail Fertilizer Operations, which was selected as Cominco's pilot plant. MELP regional staff and Cominco had already committed to carrying out another priority-setting exercise for all of Trail Operations, the execution of which conflicted with the P2 pilot. Ultimately, these problems have been worked out through accommodation, cooperation, and education conveyed through workshops and meetings with pilot participants to build consensus and commitment. The MOU was finally signed by the participants in the summer of 1995.196 It begins by setting out the basis for the parties' voluntary participation in the demonstration project: It has been recognized by Provincial and Federal governments, by business and by stakeholder groups that traditional "command and control" approaches to protecting the environment are becoming increasingly complex, cumbersome and costly. While considerable progress has been made through traditional approaches to protecting the environment, a consensus is emerging on the need for 1 9 6 In June, 1996 Alcan Smelters and Chemicals Limited also joined the demonstration project. - 133 -alternatives to command and control, which will foster more cooperation amongst stakeholders. It is also recognized that greater emphasis must be placed on preventing pollution.197 The MOU set out several purposes and objectives. The central purpose of the demonstration project is to design, implement, and determine the feasibility and merits of pollution prevention planning as "an effective and cost efficient alternative to conventional government permitting processes."198 The objectives of the demonstration project are: • to reduce emissions of polluting substances through voluntary actions; to use public consultation to identify the interests of other stakeholders, which will be incorporated into the pollution prevention planning; • to document a framework for pollution prevention planning; and, • to develop recommendations to the government, including recommendations on measures to eliminate duplication and overlap between each order of government. The pilot projects are scheduled to run for an initial period of two years. Progress will be monitored and reported on annually. The results of the project are to be used by MELP when developing proposals for legislation, regulation, policies, and procedures.199 MELP staff have indicated that they believe that pollution prevention planning will be the primary means of regulating large facilities in the future and that the pollution prevention plans developed under the demonstration projects could ultimately be combined with other 1 9 7 The British Columbia Pollution Prevention Demonstration Project, Memorandum of Understanding (British Columbia: July 1995) 1. 1 9 8 Ibid. 1 9 9 Ibid at 2-5. - 134 -existing permits under the current system and form one single authorization. This is a prospect that is looked upon favourably by industry in terms of taking a multi-media approach to environmental protection. It also offers the prospect of simplifying and streamlining the present single-media/ multi permit system. A key aspect of the P2 process, outlined in the MOU, calls for the integration of environmental and economic decision-making. To achieve this, the participants are expected to include environmental considerations within the context of overall strategic business planning. The process involved in doing this for the pilot projects requires the selected facilities to perform environmental reviews of their operations, identify and rank possible changes to operating and administrative practices based on the objective of providing maximum environmental protection and creating economic benefits, and then use this analysis to create a comprehensive "pollution prevention plan". Multi-stakeholder participation is a key component of every pilot project. Each pilot project involves the participation of a stakeholder advisory group, which may include membership from representatives of local communities, other provincial and federal ministries, non-governmental organizations, labour unions, MELP and the participating facility. The scope of each pilot project is detailed in a terms of reference. For the Trail Fertilizer Operations pilot, Project Description and Terms of Reference sets out Cominco's reasons for participation, briefly describes why the Trail Fertilizer Operations were selected, discusses the role of the Stakeholder Advisory Group and describes in detail how the P2 plan will be developed. - 135 -The role of the Stakeholder Advisory Group at Trail will be to become familiar with the fertilizer operations through environmental reviews which will be carried out in phases. In the initial phase, Trail staff will conduct a preliminary review to explain and show the Stakeholder Advisory Group the plant operations and introduce them to pollution prevention concepts. The group will be familiarized with the management structure, technical processes, and the business and environmental aspects of the fertilizer operations. In addition, MELP staff will provide basic instruction on the principles of pollution prevention and the need to integrate economic and environmental considerations in the business planning process.200 Consultation with the Stakeholder Advisory Group in concert with the preliminary environmental will set the stage for development of a work plan for a comprehensive review to be carried out by Cominco staff. The general scope of the comprehensive review has been outlined in the Terms of Reference; however review emphasis will depend on priorities identified in the preliminary review. The general subject areas for review are set out below: The Management System Organization Policies, programs, and objectives Risk assessment and emergency planning Training and communication The Production System Materials Inputs, outputs, Procurement, transport, storage, containment, handling, shipping Process facilities, operation, control and maintenance 2 0 0 Cominco Ltd., Pollution Prevention Plan, Trail Fertilizer Operation, B.C. Ministry of Environment, Lands and Parks, Project Description and Terms of Reference (Trail: 1996) 4. - 136 -Recyclables, residuals, wastes Energy Procurement, generation, utilization, recovery, and conservation Water Inputs, outputs and recycles Utilization: potable, process, cooling Storm water Ground water Effluent treatment, discharge quality, re-use, containment Residuals recovery/disposal Monitoring systems: effluent quality, receiving environment Air Stack and vent discharges Fugitive emissions Abatement systems Residuals recovery/disposal Monitoring systems: emissions quality, receiving environment Land Land storage, landfills Site contamination As can be seen from the areas of investigation outlined in the checklist, the pollution prevention environmental review contemplates an examination that goes far beyond examination of what emissions and effluents are leaving the plant. While these measurements remain important, the focus shifts to a consideration of material and energy inputs and how they are handled and processed. Using this checklist as a guide, a comprehensive review will document the current status of activities and seek opportunities to improve processes, performance and procedures in accordance with the pollution prevention principles.201 201 Ibid at 4-5. - 137 -With the information collected in the comprehensive review, Cominco and MELP staff in consultation with the Stakeholder Advisory Group will rank the findings in terms of environmental concerns and pollution prevention opportunities. A preliminary pollution prevention plan will emerge from the ranking exercise. When general agreement is reached (or as close to agreement as can be achieved) recommendations in the form of a draft plan will be presented to Cominco management for consideration in regard to funding requirements and other priorities of Trail Operations and corporate needs. Concurrently, MELP will review the recommendations in regard to its policies and regulatory concerns. Ongoing internal review of planning progress should minimize the risk of disagreement at this stage.202 Once agreement has been reached on a pollution prevention plan, the company and MELP will sign off on the plan. Execution of the plan will be monitored and periodic progress reports given to the Stakeholder Advisory Group. An independent system of verification will be established to collect data on results. As the pilot project is completed, a review of the costs and benefits of the exercise will be carried out and recommendations will be made in regard to the merits of establishing a single facility-wide plan. In the meantime, all existing permits will continue to be in effect. At this time, it is too early to predict the outcome of the Trail pilot project. A Stakeholder Advisory Group has been established and will have completed the initial stage of the review process in the summer of 1996. The preliminary schedule provides for a period of 2 0 2 Ibid, at 6. - 138 -approximately one year complete the comprehensive review and finalize the pollution prevention plan. However, some of the other pilot projects are progressing quite rapidly, indicating that initial time estimates may have been conservative. Representatives of the demonstration project participants meet on a quarterly basis as a steering group to discuss progress and share ideas, problems encountered and lessons learned. These meetings also serve as an opportunity for MELP to introduce preliminary plans and procedures designed to help standardize the pollution prevention process. These meetings provide an opportunity for participants who are not as far along in their pilots to consider approaches utilized by others who are further advanced. Perhaps the greatest benefit, however, is the opportunity to gain an insight and understanding of each others' perspectives. For the author it has meant enlightenment on the inner workings of the ministry in terms of how, for example, regional staff are evaluated partially on the basis of the number of permits they manage and the perceived threat that a single authorization approach might present and of how change in general and the uncertainty associated with moving in a new direction may be resisted. These are the human elements of change that can be easily overlooked and lead to unnecessary resistance. Perhaps most important is the acknowledgement by MELP that the status quo will not serve to optimize environmental protection on its own. If one considers the "elements of a solution" described in the Cominco paper, it will become apparent that the ministry wants to achieve much of the same things. However a significant difference in philosophies between the provincial government and industry in general may emerge over the issue of polluter pay versus beneficiary pay. To date, conflict has not arisen within the demonstration projects. However, since contaminated site remediation is part of the pollution prevention hierarchy - 139 -and the province has taken a polluter pays approach to contaminated sites, that debate may well arise.203 In the meantime, the parties are generally accomplishing what they set out to achieve by participating in the voluntary initiative. The province wants to test new approaches and pollution prevention and gain the support of the private sector, while Cominco and others wish to be able to direct their scarce financial and human resources to those priorities that will produce the greatest benefits, as well as, have the opportunity to help shape the regulatory framework of the future. The province also hopes to demonstrate that pollution prevention can pay for itself in cost savings. With this in mind, the province is pursuing the development of total cost assessment software that would be made available companies in analyzing the economic feasibility of pollution prevention options. As the initiative proceeds, MELP has been producing guides to such things as environmental reviews and public consultation, which may ultimately become mandatory requirements in a formalized pollution prevention process. Although MELP is eager to seek feedback on its draft policies and procedures, there is a lack of resources and time available to 2 0 3 To date, the Province has been steadfast in its support for "polluter pays", particularly in regard to Bill 26, the proposed contaminated sites legislation, which has been passed but is practically inoperative until regulations are passed. Debate over the regulations has been ongoing and it is anticipated that the fourth draft of the regulations will be released in the fall on 1996. Cominco has funded scholarly writing on the retrospectivity provisions, focusing on the legal, economic, and ethical issues associated with retrospectivity, as well as a comparison with experience with Superfund in the United States.[see: W.T. Stanbury, ed., "Retrospective Liability" (1995) 29 U.B.C.L.R.1.]. - 140 -thoughtfully consider and respond within the time frame provided. Despite the rapport and cooperation that has evolved, there are occasions when the ministry may introduce proposals for general guidelines that appear to be prescriptive, thereby raising the ire of the other participants. Another concern is that the ministry may prejudge the outcome of the pilot projects and move forward with plans to enshrine a pollution prevention planning process in new legislation before the results of demonstration project are known. Without a doubt, there are policy objectives and elements of pollution prevention that the province will be insistent on including in the scope of the pilots. Notwithstanding the concerns raised above, the ministry has been conscientious in regarding the demonstration project as a true partnership and has responded when concerns have been raised. It will be interesting to see if the level of cooperation can continue, potentially in the face of political pressures to bring in new legislation in advance of the completion of the demonstration projects. 4.5 The International Lead Management Centre and the Organization for Economic Co-operation and Development A review of an international industry program on lead risk reduction, the International Lead Management Centre ("ILMC"), will round out this survey of voluntary initiatives. It is appropriate to discuss the ILMC last because it is probably the most recent voluntary initiative of the mining industry. Furthermore, the ILMC, as a private sector program aimed at promoting risk reduction of a specific metal on a global scale, represents a first for the - 141 -industry. The ILMC has only just been formally constituted in July of this year. However, the path that led to its creation has been a long one and dates back to an Organization for Economic Co-operation and Development (OECD) 2 0 4 initiative started in 1990. It has taken that long to gain consensus among 25 OECD member countries as well as a dozen of the world's largest primary lead producers. The story of the ILMC dates back to the OECD Council Act on Risk Reduction concluded in 1991.205 Under the terms of the Act206, the OECD members agreed to strengthen national risk reduction programs. Moreover, the Act called for the development of common criteria to assist in identifying appropriate substances for risk reduction. Risk reduction criteria were adopted at a workshop held in Sweden in 1992: [In order] for a chemical to be selected for risk reduction activities, it is proposed that at least two OECD Member countries be in agreement on the need for cooperative risk reduction activities.207 The criteria stipulates that once specific substances are identified, the other Members should be canvased to determine whether they wished to pursue joint work. If there is significant 2 0 4 The OECD is a Paris-based organization created in 1961 and made up of 25 industrialized democracies set up for the purpose of studying and formulating policy in the economic and social spheres. Although there is no formal requirement, it is convention that the OECD act by consensus. 205 Decision - Recommendation of the Council on the Cooperative Investigation and Risk Reduction of Existing Chemicals, 31 January 1991, C(90)163/Final. [hereinafter Council Act on Risk Reduction]. 2 0 6 Pursuant to Article 5 (a) of the Convention on the Organisation for Economic Co-operation and Development 14 December 1960, Council Act decisions are binding on all OECD members, unless otherwise provided. Once member countries vote for adoption of a Council Act they are expected to make domestic laws consistent with the provisions of the Act and ensure that the commitments are implemented. Chairman's Report, Risk Reduction Criteria Workshop, May 1992. - 142 -interest, then at least three countries should be willing to provide staff and resources to support the project. On this basis, five chemicals were selected for risk reduction: brominated flame retardants, cadmium, lead, mercury, and methylene chloride. In 1993, the OECD published Risk Reduction Monograph No. 1: Lead - Background and National Experience With Reducing Risk 2 0 8 which set out national positions on lead risk, outlined actions taken in Member countries to reduce such risks and provided statistics related to lead emissions and exposures in each Member country. The report also summarized in total the work on lead in Member countries and concluded: For those Member countries that monitor lead in various media, data also indicate that the average levels of lead in environmental media have declined to below national levels of concern. However, some countries have identified releases of lead from point sources and/or the long range transport of lead in air as concerns. Others have indicated that, given the recent progress on reducing lead in air, there are more significant domestic concerns such as lead in imported canned food, lead in drinking water (especially for critical groups such as bottle-fed infants), or lead in dust and chips form deteriorating old household paint. The latter sources of concern are largely the result of past practices. In order to address these concerns, a number of governments are undertaking studies to determine the magnitude and extent f their problems. Where the risk from lead exposure is high, abatement measures, educational activities, continued monitoring and, in instances of sever lead poisoning, medical treatment such as chelation therapy, form integral components of the risk reduction strategy.209 When the Lead Monograph was reviewed, it appeared to industry representatives that most lead risk issues were appropriately being addressed at national levels. However, at the 20th 2 0 8 OECD Environment Directorate, Risk Reduction Monograph No. 1: Lead -Background and National Experience With Reducing Risk Paris, 1993 [hereinafter Lead Monograph]. 2 0 9 Ibid, at 276. - 143 -Joint Meeting of the OECD Environment, Chemical Group and Management Committee, held in May, 1993, it was agreed that a process for developing and evaluating commitment to a Council Act on risk reduction of lead should be undertaken and that the process for lead leading to OECD action should be followed for the chemicals under consideration.210 The Chemicals Group was given the task of coordinating and determining appropriate content and overseeing the drafting of a Council Act. The approach that the Chemicals Group took was one of "learning by doing"211. Industry representatives and countries less inclined to support a Council Act favoured a more structured and less arbitrary approach to determine which lead risks warranted concerted international action. Canada took the position that absent clearly documented problems it was premature to consider a Council Act. Canada also favoured a more structured approach to determining the need for international action and offered to host a workshop in 1994. Recounting the proceedings of the Toronto workshop is a good illustration of the challenges that may be inherent in making progress towards a goal in a large consensus-based organisation. The workshop, held in September, 1994, was attended by 170 participants representing 15 Member countries, primary lead producers and product manufacturers. The 2 1 0 OECD, Record of the Twentieth Joint Meeting, 26-28 May 1993 (ENV/MC/CHEM/M(93)) 1. 2 1 1 Although it is unclear when this approach was first adopted, the Chairman of the Chemicals Group, John Buccini of Environment Canada affirmed in his address to participants of an OECD workshop held in Toronto in September, 1994 that "learning by doing" would continue to guide program activities . - 144 -workshop set up ten concurrent sessions, one for each of the main lead product uses. Each session was asked to respond to five questions: 1. What information is available concerning each product grouping? This question was intended to gather information on the various products within a product group and identifies product uses, why lead is used in the product, and what are the trends regarding continued use of lead. 2. What are the routes of exposure? This question required participants to consider the lifecycle of products to determine how lead contained in products could migrate to the environment or be ingested by humans. 3. What are the international dimensions of exposure pathways? 4. What are the possible means available to reduce exposure pathways? Depending on the product, alternatives for addressing exposure concerns could include developing alternative product specifications and product substitution, communication of safety precautions and handling requirements, and standardization of labelling requirements. 2 1 2 The product areas were shot and fishing sinkers, gasoline additives, ceramic ware, plastics, paint and ink, faucets and water coolers, crystal ware, soldered food packaging, cosmetics, and municipal solid waste. - 145 -5. What are the potential implications of the alternative means to address exposure pathways? This question considered technical effectiveness of product substitutes, practicability and cost of implementing alternatives and the returns that could be achieved in regard to risk reduction. The stated objective of the workshop exercise was to collect information on the various product headings to enable subsequent analysis to determine whether there was a need for concerted action. Instead, the Toronto workshop proved to be a illustration of the difficulties encountered when several countries with differing priorities and political agendas are called upon to reach consensus. Each workshop session was co-chaired by representatives of a Member country environment ministry and a representative of commercial or economic interests. The findings of each session were compiled in a report written by a nominated rapporteur. The reports were then reviewed and approved by session participants and the co-chairs. Thus, great care and effort went into ensuring an accurate record. The session reports were to be presented at a meeting of delegations following the workshops. However, at the final meeting the conference chairman allowed interjections by Nordic representatives213 seeking to add information to the session reports or challenge 2 1 3 The Nordics countries are strong proponents of an eventual phase-out and substitution of all uses of lead, even where , as is the case with lead acid batteries, the recycling rate is over 90% in some countries. The concern is that collection and recycling programs will never completely eliminate the risk of environmental contamination in the long run. - 146 -the views expressed in them; the result was that the session ran out of time before the agenda could be completed and additional interventions were allowed that had not been approved by session participants. Several industry and government representatives from economic ministries voiced concerns that allowing the interventions served to undermine the cork that had been carried out in each of the workshop sessions. Ultimately, the individual session reports were attached to the chairman's report and became the official record of the workshop. Review of the reports reveals that there was not broad consensus on the need for international action on risk reduction for many of the lead uses studied. Notwithstanding this, the Toronto workshop did not significantly change the views of the national positions. What did emerge from the Toronto workshop was the beginnings of an alternative to a Council Act that would take the form of a non-regulatory action programme on lead that would include a voluntary industry initiative as a key component. The Government of Canada stepped forward and offered the Canadian Proposal for an OECD Action Programme on Risk Reduction Concerning Lead and Lead Products21*. The original Canadian proposal called for an action programme to provide assistance in addressing priority areas identified in Monograph on Lead and the Toronto Workshop. Using industry resources, technical information and expertise would be provided to countries, communities, industries and other stakeholders. The main areas of concern identified included: uncontrolled dispersion of lead that results in its being bio-available; 2 1 4 Canada, Canadian Proposal for an OECD Action Programme on Risk Reduction Concerning Lead and Lead Products (16 November 1994) (ENV/MC/CHEM/RD/(94)14 - 147-leaching of lead into food or potable water from food containers and plumbing containing lead solder; lead in products that may pose a risk to children; lead shot in wetlands; development of technology for safe management of wastes; and, regulatory and non-regulatory measures for the workplace. The guiding considerations in development of the programme included: • the primacy of national jurisdictions to regulate on domestic matters; • efficiency and effectiveness to design to facilitate Member consensus and to lead to significant results; equity in regard to access to the programme for both OECD Members and non-members: complimentarily through utilization of knowledge and resources of other international bodies; pollution prevention through the use of processes and practices that void or minimize creation of pollutants and wastes; and stakeholder involvement to identify and implement actions to reduce potential risks associated with lead.215 Canada's action had the effect of polarizing national positions into two camps. Countries who favoured a Council Act included the United States and those of the European Union. However, there were differences of opinion within the European Union on what form an 2 1 5 Ibid, at 2-3. - 148 -Act should take - whether it should use prescriptive or permissive language based on recommendations. The Netherlands (no doubt because of its Dutch Covenants experiences) also supported an action programme and saw this as a way to engage industry. On the other side, four countries voiced strong support for the Canadian Action Programme concept: Australia, New Zealand, Turkey, and Mexico, while softer support came from Ireland and Italy. Notably, Japan chose to defer its decision on which alternative to support. As time passed various iterations of both proposals were modified and additional meetings held to try to come to consensus. The final versions of the Council Act contemplated a series of both prescriptive actions as well as recommendations. The required actions would have included: the phase-out of leaded gasoline - a significant challenge for Europe where leaded gasoline is still widely used; phase-out of lead in children's toys; elimination of lead solder in food and beverage canning; reducing exposure to lead used in paint; ensure effective production and process controls in ceramics production to prevent leaching of lead; restricting exposure to lead in drinking water resulting form lead used in conveyance systems; and, restricting exposure to led in the working environment. - 149 -The recommendations in the draft Act advised Member countries to: employ pollution prevention to reduce the creation of lead pollutants. remove lead-based paint from structures in an environmentally sound manner when undertaking maintenance; prevent exposure whenever abatement programs are undertaken; prevent workers from inadvertently exposing their families and others to lead; prevent significant exposure to lead from air and water from point sources; ensure adequate occupational protection of workers; use environmentally and economically sound recycling and collection programs evaluate the effectiveness of national programs to reduce exposures to lead and conduct periodic assessments of sensitive populations; recommend appropriate organizations to establish standards for lead leaching from ceramics and crystal ware; and, share information about exposures of concern, risk reduction options, and environmentally sound technologies (earlier drafts had proposed using an OECD clearinghouse mechanism). The proposal also called for progress reviews to be carried out for an undetermined period and subsequent assessment at an undetermined time (earlier drafts had suggested within three years) to review the need for other concerted action where product substitution is feasible. In addition, non-OECD Member countries would be invited to reduce lead risks in accordance with the provisions of the Council Act.216 2 1 6 US/EU Proposal for a Council Act on Lead Risk Reduction Measures, (28 April 1995) (ENV/MC/CHEM(95)8/ANNI. 5-7. - 150 -Many of the actions proposed in the draft Council Act may seem perfectly reasonable and appropriate. The notion that certain uses of lead may result in unnecessary and inappropriate risks to human health has been acknowledged by industry. In essence, however, the Council Act contemplated the creation of significant additional international regulation over many matters that are already being addressed nationally. Moreover, it contemplated an additional layer of bureaucracy through the continued participation of the OECD. Canada's position on this issue boiled down to there being no demonstrable justification for establishing a Council Act, particularly when the lead industry was already prepared to offer its expertise to address the concerns in an open and transparent process that could be scrutinized by the OECD. The Action Programme offered a potentially cost effective and efficient means to address the issues. Yet, cost was an issue that had not even been addressed in the "learning by doing" approach of the Chemicals Group. In fact, little if any information was presented in the course of the six years of deliberations by the OECD Member countries on the costs and benefits of the proposed risk reduction activities on lead. Neither was any systematic risk assessment carried out. The lack of such analysis indicated a serious flaw in the process. Another concern related to the possible application of the OECD approach on lead to other chemicals perceived to require risk reduction. Given the difficulties in reaching consensus on lead, which many saw as these easiest to reach agreement on, it appeared that applying the same approach to many other chemicals would - 151 -involve an unacceptably lengthy and expensive process that governments now realize they can no longer afford.217 The final Canadian Proposal For an OECD Action Programme on Risk Reduction Concerning Lead and Lead Products218 contemplated the provision of "expertise to address regional, bilateral and transboundary issues confronting certain Member countries"219 in a programme that would: recommend to appropriate organizations the development of international standards for performance and testing for lead release and common definitions for certain [yet unspecified] lead products; work with other institutions to provide scientific and technical information on lead risk reduction to Member and non-Member countries through existing information exchange mechanisms; invite the lead industry to develop a voluntary industry plan with clear objectives and priorities for lead risk reduction to promote the safe production, processing, use, recycling and disposal of lead and lead containing products. 2 1 7 It could be argued that once a model Council Act process was fine tuned, efficiency would increase. However, the risk issues with chemicals are unlikely to be the same in any two cases. Thus, in each instance it would be necessary to come to agreement on what the risks are, how likely they are to occur, and what should be done about them. 2 1 8 Canada, Canadian Proposal For an OECD Action Programme on Risk Reduction Concerning Lead and Lead Products (Ottawa: May 1995). 2 1 9 Ibid, at 1 - 152 -Attached to the Canadian Action Programme was a proposal prepared by the international lead industry: an International Lead Management Centre Proposal for a Voluntary Industry Lead Risk Reduction Project220 Under the proposal, the lead industry would establish an International Lead Management Centre (ILMC) to implement a voluntary Industry Lead Risk Reduction Project. The proposal summarized the industry perspective and what it intended to offer: Both the Monograph and the Toronto Workshop demonstrated clearly that the relative significance of different exposure sources varies from country to country, and that effective management of risk requires programs tailored to national or regional circumstances. Although important lessons can be learnt from the experience of others, different countries need to take into account the particular environmental factors, and the economic, social and cultural circumstances that apply to them. The OECD work has also shown that most of the developed OECD countries have effective risk management programs already in place, and that efforts are continuing in this area. However there is a perception that progress elsewhere, especially in some developing countries, may have been less effective. Developed OECD countries and industry could play an important role in working with such countries to improve their ability to deal with lead risks. A number of areas can be identified where concern exists about the possibility for unacceptable risks. These include occupational exposure,point source industrial emissions, certain exposure sources resulting from past practices, and some current practices and uses of lead. Examples of uses which have been identified by some countries as causing concern include lead in gasoline, paints for residences and for children's toys and furniture, soldered food cans, and ceramic crystal ware. To address the needs of both OECD and non-OECD countries the international lead industry proposes to undertake a voluntary Lead Risk Reduction Project. This would constitute the voluntary industry initiative called for in the Risk Reduction Action Program proposed by Canada and would be consistent with the Recommendation in UNCED's Agenda 21 for 2 2 0 International Lead Management Centre, International Lead Management Centre Proposal for a Voluntary Industry Lead Risk Reduction Project (London, England: May 1995). - 153 -action by governments and industry to enhance the sound management of chemicals. The industry's Lead Risk Reduction Project would not duplicate, but rather complement and support, the activities and needs of international agencies and countries. Flexibility would be provided by developing and conducting initiatives on a project-by-project basis. Projects would be supported by a network of technical and scientific experts and information databases. Development and updating of network capabilities would be an on-going activity and would be driven in part by individual project requirements.221 The industry proposal included a list of activities, including: pilot programs to refine the objectives and mechanisms of the project. The pilots would focus on generating risk reduction options to address specific problems. For example, one country expressed an interest in participating in a project to address lead risk reduction in associated with its ceramics industry; outreach to consumer industries. Liaison would be established with relevant industry organizations to address applications of lead that have the potential to pose risks to human health; worker health training programs. Levels of awareness vary dramatically and contributions to risk reduction could be achieved through training and education in countries with acute occupational exposure problems; risk reduction teams. Upon request from countries, teams of technical experts would be assembled to assist with local investigations. information resources and databases. To assist with the transfer of information on available risk reduction techniques, information delivery systems and databases would be developed to address issues such as occupational exposure, industrial emissions, 221 Ibid. - 154 -recycling, abatement issues, and risk reduction experiences and options in regard to lead-containing products.222 The proposal also included a schedule that contemplated completion of the activities over a five year period. The ILMC would implement the activities under the direction of an executive board, which would receive guidance on priorities and project feasibility and recommendations from a Policy Advisory Group made up of representatives from international agencies such as the OECD, the United Nations Industrial Development Organization, the World Health Organization, the World Bank, the United Nations Common Fund for Commodities, the International Lead Zinc Study Group, the International Labour Organization, the International Programme on Chemical Safety, the United Nations Development Program, the United Nations Environment Program, and the United Nations Commission for Sustainable Development. The primary lead producers would provide funding and personnel to establish and staff the ILMC. ILMC activities would also contemplate cost-sharing between industry and those countries requesting technical cooperation. The ILMC would look to host countries to support the activities of the experts during local consultations. The ILMC would seek to participate in instances where other organizations are pursuing programs with similar aims. 2 2 2 Ibid, at 12-13. - 155 -In taking this approach, the program put forward by the industry offered the potential to work cooperatively with the OECD, its' Member countries, non-Member countries, other international organizations and consuming industries to address lead risk reduction issues. When the OECD Chemicals Group and Management Committee held its 23rd Joint Meeting in June of 1995, consideration of the two options was on the agenda. Once again, consensus eluded the Membership. It was agreed that the countries closest to the debate would meet subsequently during the summer to try to come to agreement. Work continued amongst the government delegations off and on over the remainder of the year. Progress finally began to emerge through a third alternative, which contemplated an earlier idea of Australia to utilize an OECD Ministerial Declaration, which would refer to an voluntary industry program. A Ministerial Declaration is a formal communique issued by national ministers of OECD countries, in this case the Environment Ministers who were to meet in February, 1996. Although legally non-binding, ministerial declarations are intended to be statements of national intent. In a marathon negotiating session of national delegations held in Paris in January, general agreement was reached on a carefully worded ministerial Declaration, together with a Resolution linking it to the OECD. The Ministerial Declaration was adopted on February 20, 1996 and in so doing, after six years of deliberations, finally set the wheels in motion for the actual creation and commencement of the work of the ILMC. As this paper is written, the real work of the ILMC is just beginning. Procedural details of incorporation and writing of bylaws have just been completed and budgets written. The - 156 -Board of Directors, officers and the executive director have been appointed and international organizations have been approached to provide members for the Policy Advisory Group. Already, requests for potential projects are being received. Preliminary discussions have also been started with a UN agency to jointly develop an information transmission system that would provide access to developing countries. The task of bringing together the many stakeholders and gaining consensus to proceed with this initiative has been arduous to say the least. The hurdles encountered in establishing the program are illustrative of the fact that the larger the scope and the more stakeholders that are brought to the table, the greater the difficulty becomes in finding the means to move forward as a group. It has taken a long time to get the program into a shape that is acceptable to all the parties involved. Certainly, major compromises were made, and some countries may simply go on to other forums to achieve what they could not at the OECD. Thus, the proverbial ball is in the industry's court: it has asked to have the opportunity to contribute to lead risk reduction and now the international community waits. One way or another, the success of this initiative may have a significant impact on the shape of international efforts to protect the environment in the future. - 157 -Chapter Five Voluntary Initiatives and Society's Expectations 5.1 Introduction In Chapter Two, the command and control approach to environmental protection was examined and found lacking in its ability to adequately protect the environment and meet the expectations of society. Chapter Three identified several of the principles and expectations that interested parties and policy-makers want incorporated in an environmental protection regime. Not surprisingly, there is a lack of congruency in some of the expectations of the various stakeholders. In Chapter Four, a few examples of co-operative approaches were identified for consideration as an alternative to more traditional approaches. Drawing on the analysis of the earlier chapters, the discussion in this chapter will endeavour to address two questions: 1. What factors and considerations inherent in the reviewed initiatives increase their chances of success? 2. What conditions and parameters need to be present to satisfy society's expectations and optimize environmental protection? - 158 -5.2 Lessons from the Experiences Gained in Voluntary Initiatives Recognition of the reality of interdependence: In each of the initiatives discussed earlier, there was recognition as each program was being created that one party or stakeholder alone could not accomplish the desired objectives without the assistance of other stakeholders who may have approached the task from a different perspective. For the Dutch, it was clear that the government's decision to proceed with the covenants was based on the recognition that the overall goal of sustainable development could only be achieved with the assistance and cooperation of industry and consumers in general. The Dutch government was prepared to acknowledge that it alone could not oversee and manage the changes contemplated in its National Environmental Policy Plan. Dutch industry, in turn, saw that society's expectations dictated a proactive approach to environmental protection. It also realized that policies and laws adopted by government had overwhelming potential to impact the success or failure of industrial activity. Government policy could result in unreasonable requirements; it could impact investment and increase the cost of capital by increasing uncertainty and risk though ambiguous or onerous laws. Dutch industry realized that if it chose to work with government rather than opposing its efforts, it stood a better chance of influencing the agenda and ultimately creating more predictability in regard to the direction of environmental laws and ultimately lower risks for investors. Moreover, the ability of Dutch industry to determine how best to achieve targets depended on gaining the trust and a - 159 -mandate from government. Thus, the Dutch Covenants provide a clear example of mutual dependence to achieve desired goals.223 Similarly, the Trail Community Lead Task Force could not have utilized the methods it has to accomplish the results it has achieved without the cooperation of the citizens of Trail and the government and Cominco. Families that sought to reduce blood lead levels in their children while reducing the potential for exposure to lead in the future, needed education and knowledge of how to reduce exposure. The participation of the provincial government lent a degree credibility to the program that might have been missing if Cominco was acting alone with the community.224 In Trail, there is also a general acknowledgement and a desire that the Cominco smelter operations will continue to be the economic engine that will maintain high standards of living in the surrounding community. At the same time, in order for Cominco to prosper, it is essential that potential effects to human health and the environment be minimized and kept within the standards set by society. All these factors serve to strengthen the need for the various parties to work together. As with the Dutch, the British Columbia Ministry of Environment, Lands and Parks has concluded that the way to achieve its pollution prevention goals is best achieved with the 2 2 3 Although national in scope, the Dutch also realized that in the long term sustainable development depends upon global endorsement and recognition of global interdependence. Obviously, this is true because environmental effects are unrestricted by borders. It is also true that the ability of Dutch industry to contribute to the nation's social and economic aspirations means that it must be able to compete internationally and therefore it is desirable that the global playing field be level. 2 2 4 This argument is currently being made by the mayor of Trail who is concerned that a threat to reduce or eliminate provincial funding will undermine the credibility of the program, particularly if all remaining funding is left up to Cominco. - 160 -cooperation of industry and the involvement of other interested parties. In British Columbia increasingly scarce public resources, a constant back log of permit applications and facilities that lawfully should be permitted but are not, lead to a recognition that government needed the cooperation of others to achieve its mandate. For companies like Cominco who are participating in the pilot projects, the chance to work with regulators to address real priorities and move away from counter-productive adversarial relationships presents an opportunity to achieve more effective and efficient environmental protection. Cominco's history of working with the communities where its operations are located has also illustrated the value of communicating and working with municipal government and local interest groups. The company is also committed to participation in debate over regulatory reform in the provincial, federal and international arenas. Clearly, it makes for better understanding and trust if facilities management can learn what concerns there are and endeavour to address them where appropriate. At the same time, it is important to convey an understanding of and the rationale behind the company's own priorities. In turn, gaining the support of communities and jurisdictions where the company is active can be a factor in determining what measures are ultimately put in place to protect and enhance the environment. Finally, the creation of the International Lead Management Centre and its program for lead risk reduction can be described as a truly global initiative. Its creation reflects a recognition that the international lead industry possesses the most expertise and technology available to reduce risks associated with lead. However, the ultimate success of the ILMC initiative - 161 -may depend upon the level of cooperation of governments seeking its services to reduce risks. Individual countries will be called upon to facilitate access and provide support for the ILMC's activities. The OECD Environment Ministers' Ministerial Declaration illustrates a level of commitment of member countries and may be of assistance when countries are called upon for support. Another important factor will be the level of participation of representatives of international organizations participating as members of the Policy Advisory Board. This group will screen requests for assistance and may be relied upon to use its expertise in determining how best to achieve the objectives of the program. The Policy Advisory Board through its participation will assist in gaining and maintaining public confidence in the program. Thus, in each of the programs there was a significant presence of interdependence and a recognized need for co-operation. Recognizing this fact may be the first step in finding the common ground necessary toward the establishment of clear and mutually acceptable goals. Transparency through stakeholder education and participation: For industry in Canada, one of the challenges of improving environmental protection is gaining the flexibility to determine and address priorities in a reasonable time frame acceptable to individual facilities management. This would be in contrast to more prescriptive approaches and would require an essential element of public trust. For the most part, many ENGOS and others generally interested in environmental quality have less than complete faith in the intentions of government and industry. A clear example of this mistrust was illustrated in the reaction to the proposed Regulatory Efficiency Act discussed earlier. Many - 162 -environmental interest groups saw the proposal as nothing more than a way to circumvent regulation and give industry a license to pollute on the basis of deals made behind closed doors. There are good reasons for these sentiments. Before laws were introduced to protect the environment, it seemed that there was relatively little consideration given to environmental effects resulting from development. When laws were introduced, governments slowly gained more control and a better understanding of what was required to protect the environment. In the 1980's, enforcement of environmental laws became a political priority and more resources were focused on enforcement and prosecutions. For many in the private sector, the threat of prosecution was likely what it took to create the change in attitudes that resulted in improved environmental performance. Therefore, many environmentalists may think that the shift to other regulatory mechanisms represents a movement away from an approach that works and is necessary in order to keep the private sector in line. Perhaps the best way to build trust and co-operation among all stakeholders is to make sure they are well represented and consulted in the process of building and carrying out an initiative. Providing good representation means that stakeholders need to be educated on the issues and have access to the information and knowledge needed to make intelligent decisions. It is also important that stakeholder representatives be given a voice and a reasonable opportunity to use it. This means providing adequate time to allow for information review and development of well-considered positions. Of course, this approach requires balance and judgement to ensure that decisions are made in a timely fashion. However, it could be argued that in the long run, time taken at the outset to build a - 163 -foundation for trust, respect and open communication among the interested parties will likely pay off in terms of greater understanding and cohesiveness.225 The efforts of industry and the Canadian and Australian governments in promoting an voluntary industry action plan to the OECD is a clear example of the importance of transparency, education and stakeholder participation. It took OECD Member Countries approximately six years to achieve consensus on support for the OECD Risk Reduction Program on Lead. To begin with, the 25 countries embarked on the process without any guiding principles or firmly fixed reference points. It was not clear at the outset or after the Monograph on Lead was released that there was any international dimension to lead risks that warranted OECD action. At the suggestion of Canada, it was decided to hold a workshop and invite representatives of industry, scientists and ENGOS to participate. The advent of the workshop provided a catalyst for the lead industry to propose a voluntary initiative. It also created an environment for building a working relationship between industry and the Canadian government, in particular Industry Canada and Natural Resources Canada. Communication with the provinces was also crucial in gaining agreement on a Canadian position. The provinces played a key role because they could be expected to be called upon to use their constitutional jurisdiction to carry out the federal government's commitments if any were called for under a binding instrument such as an OECD Council Act. 2 2 5 The assumption here, and it may be a large one, is that all the parties are genuinely committed to coming to agreement on a course of action. This attitude would be in contrast to interests who may choose a strategy of frustrating the process through conflict and delay. - 164 -As the process for determining a course of action unfolded, industry continued to communicate with the OECD member countries in order to convey what the industry proposed to do and to gain feedback on what the OECD's expectations were. Industry's diligence in maintaining lines of communication was critical in creating the opportunity to establish a cooperative initiative. The Trail Community Lead Task Force is another clear example of the importance of public participation and education and communication. In fact, the whole initiative relied on public participation as a key to implementing measures to reduce risks associated with possible exposure. Parents were required to ensure that their children received periodic blood testing and were largely responsible for becoming educated on and implementing the measures that were intended to minimize their children's exposure to lead. Similarly, an integral component of the British Columbia Pollution Prevention Demonstration Projects will include the formation of public advisory committees to participate in activities associated with environmental reviews of facilities, identification of environmental concerns and issues and establishing the priorities that will be set out in the pollution prevention plans. In contemplating the role of various stakeholders, a key consideration in planning initiatives must be when and at what level of detail should particular stakeholders be involved. In the case of the Trail Fertilizer Operations Pollution Prevention Pilot Project, for example, it was not considered appropriate to engage the public in actually carrying out the detailed environmental review. The reason for this is that completing the task will require technical - 165 -expertise and the commitment of a significant amount of time and effort that voluntary participants should not be expected to make. As is the case in the application of common law principles, the degree of public participation should come down to the exercise of reasonable judgement to strike a balance to ensure that a reasonable level of understanding is conveyed, without the necessity of everyone involved becoming expert in the processes under review. The need to establish appropriate targets, goals, and timeframes: In contemplating the success of the voluntary initiatives discussed earlier, the first thing that may be noticed is that not one of the initiatives has been completed. Therefore, the jury is still out as to whether any one of them represents an improvement over more traditional approaches. On the other hand, in the case of the Dutch Covenants process and the Trail Community Lead Task Force, targets and objectives are being met and measurable results are being achieved. A system based on prosecuting persons for failure to meet an existing standard could not have gained such results. The Dutch Covenants provide a good example of the use of targets and goals. They envision a twenty year time frame, during which interim targets have been set for reduced emissions and other goals. A provision such as this allows participants to measure progress along the way. These results may in turn be used to evaluate whether planned initiatives will suffice to meet ultimate goals or whether other measures should be contemplated. - 166 -The use of targets and goals together with consideration of the proposed means to achieve them also allows for the evaluation of the benefits and costs and ordering of environmental priorities. This notion of having to choose from a host of potential objectives is important in light of the fact that there are limited resources available to address society's expectations. At some point, criteria need to be established and decisions made on where resources should be spent to derive the greatest benefits. One of the hallmarks of modern democratic society is the tendency to focus primarily on relatively short term goals and results. There is a perception that the public expects immediate results to whatever concerns are most pressing. Politicians and bureaucracies respond accordingly by devoting scarce resources to achieve quick fixes. This presents a potential problem for efforts intended to achieve sustainable development and optimal environmental protection. Clearly, the environmental impacts and economic momentum created by two hundred years of industrialization cannot be shifted painlessly overnight or even in the span of a political term of office. In determining the scope and goals of a voluntary initiative, careful thought needs to be given to the length of time required to achieve the outcome. In each of the cases studied above, a significant period of time was required in the initial stages to get the parties involved to agree on a common definition of the task at hand and what the targets should be. In the case of the OECD Lead Risk Reduction Programme, it took almost six years to achieve consensus. This highlights another important consideration: the length of time required to complete a task is directly proportional to its complexity and the number of parties who must agree on how to achieve it. For the OECD initiative, the task required - 167-achieving consensus among 25 countries in regard to a program that contained a multitude of options for potential goals and objectives. In the cases of the Dutch Covenants and the British Columbia Pollution Prevention Pilot Projects, it required between one and two years to reach agreement on terms of reference for the activities to be carried out under the initiatives. When the British Columbia initiative was originally proposed in December, 1993, government representatives had hoped that an agreement with industry would be in place by the end of March, 1994. However, the initiative took much longer to get off of the ground because, as a cooperative exercise calling for industry and government to work together, it took time for the participants to grow accustomed to working with each others as partners for the first time. Moreover, with only the existing prescriptive, command and control regulatory system in place, there was no blueprint or model for proceeding. Part of the delay was also caused by external political and other priorities that demanded the attention of the ministry staff. As well, coordinating meetings among industry representatives created scheduling challenges that caused further delay. Therefore, despite best intentions, it is reasonable to expect that progress will require more time than originally anticipated, unless scheduling anticipates unforseen delays. Project timing must also allow a reasonable period of time to achieve goals and targets. For example, the Dutch have allowed one generation, or approximately twenty years to achieve the targets it has set for industry. The Dutch have also acknowledged that flexibility in timing is sometimes warranted where other factors such as economic or social circumstances result in delaying progress. - 168 -In contrast, the ILMC program has been established for a planned five year period. However, given its broad global mandate to achieve lead risk reduction, it remains to be seen whether it will achieve all its aims within that time. Concern must also be raised with the British Columbia Pollution Prevention Demonstration Project. The ministry has indicated that it is likely that the government will call for new environmental protection legislation in the next year. The ministry wishes to incorporate pollution prevention planning. Even if the pilot projects proceed on schedule and plans are in place within the next year, it is unlikely that the results of those plans (which may themselves have timeframes of three to five years) will be measurable. Therefore, it would appear that the ministry may be planning to adopt the process it is now testing with industry without awaiting the outcome of the pilot projects. This apparent urgency to move forward before pilot project results are available may be a reflection of the bureaucratic imperative described in Chapter Two - the need to be seen to be doing something in response to political imperatives. There are potential hazards in moving too quickly. In relying too much on theory instead of practice, there is a possibility of making mistakes that could seriously undermine the credibility of the whole approach. Moving too quickly also creates a danger that participants will not have an adequate opportunity to understand and contribute to the initiative and thereby build faith in it. Again, using the Pollution Prevention Demonstration Projects as an example, the environment ministry is already moving ahead to prepare various guidelines for various aspects of pollution prevention planning such as the conduct of environmental reviews, setting up public consultation, and preparing pollution prevention plans - before significant practical experience is gained. - 169 -Government is certainly not alone in wanting regulatory reform sooner than later. Other stakeholders, including business interests, want to see reform to existing environmental protection legislation; however, the old adage of "haste makes waste" should not be forgotten. In adversarial circumstances, deliberate intent to delay is a common tactic used to frustrate an opponent. This should not be a concern under a cooperative approach. Therefore, the key focus on timing should be to ensure that each participant has the benefit of whatever time is reasonably required to make informed decisions. A need for guiding principles: Many business interests and representatives of ministries other than environmental industries only became involved in the OECD Lead Risk Reduction Program over three years after its inception when the Canadian government proposed a multi-stakeholder workshop. For those new to the initiative, a surprising characteristic of the program was that it appeared to be operating without any guiding principles. In fact, the stated approach was to "learn by doing". From an industry perspective, this appeared to be terribly inefficient. The circumstances were such that a large group of national delegations and OECD bureaucrats were asked to consider what to do about international lead risk reduction before determining what the international dimensions were and what alternatives were available to treat whatever concerns arose. Even after the Toronto Workshop that specifically focused on the international dimensions of lead risk reduction, the "learning by doing" advocates wanted to continue to ignore its findings and thereby would have rejected a more methodical approach that would have - 170-confined them to an objective analysis of the facts surrounding lead risks. Arguably, this may have been a case of a bureaucratic imperative and the need to be seen to be doing something significant on lead, particularly when millions of dollars had already been spent by the delegations in their deliberations. The desire to put in place a Council Act on Lead, the main alternative to a voluntary initiative, may have been due to passionate beliefs in what was necessary to protect the public, but without a structured process of consultation based on sound principles, the effort lacked credibility and justification. Design for flexibility and innovation: One motivation for industry to pursue voluntary initiatives is to avoid rigid and prescriptive standards-based regulations that deny them the flexibility to allocate resources to real priorities. Environmental protection will not be optimized if rigid regulatory standards require resources to be spent on low priority environmental hazards. Controversy over clean-up of contaminated sites provides a good illustration of this problem. In British Columbia, for example, public health experts have questioned the efficacy of spending millions of dollars of taxpayers' money to clean-up the Expo lands, which they consider to be a relatively low health hazard. Similarly, in the United States, a survey of how the public and Environmental Protection Agency experts rate health risks showed that while hazardous waste sites ranked highest among public concerns, EPA experts ranked the health risks as medium to low.226 Although the objective of addressing environmental concerns in some order of priority requires that decision-makers 2 2 6 Supra, note 9 at 21. The study also showed that industrial pollution of waterways ranked 3rd highest in public concern, but was considered a low risk to the experts. Conversely, industrial air pollution was ranked 11th by the public, but was considered a high risk to the experts. - 171 -are well informed, it is also necessary that they be free to make choices about the best course of action. Unless the environmental protection system is inherently flexible, then the opportunity to pursue priorities will be limited since resources are finite and must be allocated first to meet the letter of the law. If policies are adopted that allow flexibility in determining how targets are to be met, then there will be greater freedom to be innovative. Under the current regulatory climate, a facility could be penalized for introducing new technology or process changes. If, as is often the case, there are process upsets during implementation, existing standards may be exceeded and lead to prosecution. On other occasions, the adversarial climate perpetuated by command and control is such that when an operation moves to change past practices, Crown prosecutors will use that change as evidence to show that the facility was operating improperly and without due diligence in the past. These circumstances are a consequence of a rigid standards-based regulatory system that is inherently adversarial in nature. Until environmental protection moves beyond this, innovation will continue to be hampered. Adopting a monitoring and reporting framework: If interdependence is essential to optimizing environmental protection then gaining a level of trust among stakeholders will be crucial to achieving and sustaining progress. When Ronald Reagan was asked if he trusted the Soviet Union to dismantle its nuclear missiles in accordance with their agreement with the United States, his reply was "trust?, yes, but verify". This same approach would make sense for voluntary initiatives intended to replace more prescriptive approaches. In recent times, the politics of transparent government and the information age combined to create an - 172-expectation among stakeholders that they have access to information and be informed about the activities of government. Regular monitoring and voluntary reporting are important to generating and maintaining faith in a system. It is also essential for providing information for evaluating progress towards targets and goals. For example, the Dutch Covenants have built in regular monitoring provisions and interim targets. Similarly, the British Columbia Pollution Prevention Demonstration Project and the Trail Community Lead Program provide annual progress updates. Making information on progress available is also important for providing feedback and reinforcement to participants and acknowledgement of their efforts. The significant successes in Trail on blood lead reductions in children has been widely recognized and provided encouragement that the efforts are worthwhile. Sustaining environmental protection measures that call upon individuals to change habits will be aided by the reinforcement that regular monitoring can provide. Address enforcement issues at the outset: It is a major concern of environmental interests groups that government enforcement of standards will become lax if there is a general shift towards voluntarily negotiated instruments like pollution prevention plans. There are a number of ways to address these concerns. For the Dutch, the threat of bringing in stricter standards is considered to be the "stick" that compels industry to act voluntarily. In British Columbia, maintaining the alternative of the traditional permitting system may act as a stick that can be used if voluntary and negotiated measures are not pursued in good faith with effective results. Keeping in place alternative means of regulating environmental protection - 173 -is also important to ensure that other approaches such as pollution prevention planning retain the aspect of voluntariness. This characteristic is particularly important to business interest in the context of initiatives like the pollution prevention demonstration project where facilities may be expected to consider significant process technology or input changes - decisions that are strongly considered to be within the purview of private sector decision-making in a free enterprise system. Where negotiated agreements are formalized into legally enforceable commitments, provisions could be put in place to address various circumstances of breach. Those provisions could range from a formal review process that would accommodate modifications to targets and goals depending on the circumstances, to penalties for failure to reach agreed upon targets; to mediation; and, ultimately to criminal sanctions where environmental harms result from gross negligence, wanton or deliberate acts. Taking into consideration the human element: With initiatives that contemplate paradigmatic shifts from traditional approaches, change agents must be sensitive to impacts on individuals and organizations accustomed to doing things differently. Within government, for example, individuals accustomed to being evaluated on the basis of the number of permits they process or administer may be expected to be alarmed and possibly resistant to a change that contemplates doing away with permits and combining all approvals in a single authorization. Similarly, managers accustomed to thinking in terms of pollution control may have difficulty imagining how they would develop new skills to manage in a pollution prevention - 174 -environment. This is particularly true if the government is looking to reduce the size of the bureaucracy by handing off more responsibility to industry. Similarly, some managers within industrial facilities may be expected to resist and be sceptical of proposed changes, particularly if what is being promoted is seen as a quick fix or the latest "flavour of the month" in facilities management techniques. Often enthusiasm for new management approaches like "re-engineering" and "total quality management" receive early support but enthusiasm declines over time and managers return to former practices. One cause of this phenomena seems to be that managers become convinced that they recognize all the problems and opportunities for innovation and productivity gains. Consequently, they may believe that it is a waste of time to adopt a new framework for information collection and analysis and a process for decision-making and implementation when they already know the answers. Unless changes anticipated by an initiative are presented in such a way that potential participants are given a reasonable opportunity to understand and challenge the assumptions of the proponents and contribute to program modifications where appropriate, there is a possibility that internal resistance may cause inertia that will in turn undermine the entire initiative. Although proponents of an initiative must be patient and willing to move a program along at a pace that takes into account the necessity of achieving buy-in and commitment, they must also demonstrate the leadership, judgment and determination to move forward and not get unjustifiably bogged down. For example, the convention requiring the OECD to proceed on the basis of consensus among its 25 members almost caused a stalemate after six years of consultation. With an initiative as far-reaching and broad as the - 175 -ILMC, a requirement that all decisions be made on the basis of consensus could forestall any action whatsoever. Therefore, on a simple majority basis, the ILMC Board will have ultimate decision-making authority on recommendations received from the Policy Advisory Group. In this chapter, the experiences gained in the initiatives discussed in Chapter Four have been considered in order to derive factors important to achieving successful outcomes from voluntary programs. Eight considerations have been identified. The next question is whether voluntary initiatives are something that ought to be pursued. This is addressed in the chapter that follows. - 176-Chapter Six Conclusions The traditional command and control approach to environmental regulation raises several concerns in regard to its ability to optimize environmental protection. In Chapter Two, several problems were identified. Canada's constitutional make-up results in problems of overlap and duplication between the two orders of government. These problems are compounded by several factors that contribute to a lack of cooperation and consultation between ministries and orders of government. These factors include: rivalry within and between orders of government; ignorance which leads to poor decisions; strong convictions and passions that may cloud judgement; political, bureaucratic, and institutional imperatives that compel action out of the need to be seen to be doing something; and need itself wherein inappropriate behaviour is cited to support the argument for the need to regulate. These factors contribute to circumstances that Stephen Breyer identified as "the vicious circle"227: public perceptions influence political decisions, while government, through the information it releases, helps to shape public perception. In turn, both political and public pressures influence bureaucratic responses. This has created a regulatory system of environmental protection that allocates the majority of its resources to controlling pollution from point source industrial facilities, which, according to experts in and outside loccit. - 177 -government, are not necessarily the major cause of environmental concern facing the province. Command and control has been the form of regulation used most often to manage the environmental performance of industrial facilities. From an industry perspective, some important legal cases arising from command and control regulation have had a significant influence on articulating and defining appropriate standards of conduct in regard to due diligence and environmental performance. However, command and control perpetuates an adversarial system that is expensive to operate and counter-productive in terms of achieving cooperative means to protect the environment. In the examination of command and control it was also noted that the system itself is difficult to administer, manage, and enforce. Requirements to meet existing standards under command and control have opportunity costs and may sacrifice the ability to address more important priorities. Moreover, this form of environmental protection is considered expensive to maintain. In a period when governments are intent on reducing costs, environment ministries are forced to look for new ways to facilitate environmental protection. At the same time, thinking on environmental protection has shifted from controlling pollution to preventing it altogether. Most regulation is prescriptive in nature and is designed to control pollution by limiting discharges to the environment. The main problem with command and control is that it has been overused and relied upon to take on a role it cannot fulfill. It is a form of regulation that is paternalistic and has become largely ill-suited to an increasingly knowledgeable society in which industrial processes require management and technical expertise that government does not possess. Partially in recognition of this, the shift to pollution prevention calls for - 178 -a different approach that will require facilities management to become actively engaged in preparing pollution prevention plans that must in turn be approved by environment ministry staff. Arguably, such planning would benefit from an open, communicative and cooperative environment. Despite its shortcomings, command and control will continue to be a necessary component of environmental protection. Society demands that certain behaviour be punished. Wanton, deliberate or grossly negligent actions that lead to harm to the environment should not be condoned. Maintaining environmental laws that are considered to be quasi-criminal will help serve as a reminder that there are standards of conduct in place and potentially severe consequences may result if one fails to meet those standards. Command and control, with its standards and permitting systems, provide an alternative to the voluntary approaches considered in this thesis and will be an important means to assure the freedom of negotiation. In the event that alternatives no longer exist, the freedom to choose will be lost and along with it, a measure of equality of bargaining power. Chapter Three identified several expectations of society in regard to the environment by tracing the evolving agenda of environmental protection. Particular consideration was given to the expectations of government, environmental non-governmental organizations and business interests. Several principles and concepts were highlighted. These include sustainable development, pollution prevention, the goal of zero pollution, the precautionary approach, the requirement that facilities use best available technology, and the polluter pays principle. Although there is often unanimous agreement among stakeholders concerning many of the principles of environmental protection, there are instances when interpretations differ. In those circumstances there is a danger that stakeholders will either disagree about - 179 -what should be done or will simply fail to communicate their differences. Ultimately, these circumstance could lead to conflict that diverts resources away from environmental protection. Such was the case in the example cited in Chapter Two of litigation against Cominco Ltd. as a result of an accidental spill of mine water into a creek. The expectations identified in Chapter Three provided a backdrop for the examination in Chapter Four of four cooperative voluntary initiatives that range in scope from local to international. The discussion followed the chronological development of the initiatives. The Dutch Covenants, a national program of government and industrial sectors in the Netherlands, is utilizing a series of industry/government covenants to achieve sustainable development over a twenty year period. The Trail Community Lead Program is a local community program established to reduce blood lead levels in children in the City of Trail, British Columbia. The eight year program has achieved significant results that are attributable to the level of cooperation among participants in the program. The British Columbia Pollution Prevention Demonstration Project is a provincial pilot program intended to test the opportunities for industrial pollution prevention planning in the province. If successful, the pilots will result in a new approach to environmental protection in the province through the use of voluntary pollution plans that would incorporate all required environmental authorizations in one instrument along with a comprehensive pollution prevention plan. Finally, the recently launched International Lead Management Centre is considered as an example of a program that is international in scope and aimed at addressing concerns over risks to health and the environment associated with exposure to lead. - 180-Review of the initiatives revealed that each requires a significant degree of commitment in the early stages to define program terms of reference and targets. Typically, the exercise of moving from concept to an agreed upon course of action may require between one and two years. Much of that time may be spent on building trust among participating stakeholders and establishing a human dynamic that results in individual commitment and mutual recognition of goals and objectives. Although none of the initiatives studied is complete, those which are firmly underway have demonstrated substantial progress towards reaching proposed targets. Chapter Five identifies several important features that are believed to be integral to the success of voluntary initiatives. Perhaps most important is the notion that optimizing environmental protection requires a recognition of the interdependence among stakeholders and that no one group or stakeholder can achieve all that is needed to protect the environment. It was also recognized that in order to build trust and cooperation, it is essential that there be transparency through stakeholder education and participation. It is also necessary to establish targets and goals, as well as reasonable timeframes for meeting them. At the same time, there is a need to adopt principles to act as a guide to achieve goals, while maintaining an ability to be flexible in determining how goals are met. As voluntary programs proceed, it is essential that a monitoring and reporting framework be adopted to provide a means to assess progress. Monitoring and reporting are also important in ensuring transparency, and are integral to maintaining public faith. While these program components are being considered, it is also important to bear in mind the human element in regard to those who are expected to carry out an initiative and, in particular, what fundamental changes - 181 -individuals will face in regard to the ways that they are accustomed to addressing environmental issues. In Chapter Five, the focus was on identifying process issues that may contribute to voluntary initiatives. There are two other important factors that should not go unmentioned in regard to identifying requirements for enhancing environmental protection. The first concerns the need to make the study of environmental effects a priority. A key to all the work contemplated by activities intended to protect human health and the environment is gaining an accurate understanding of impacts of products, substances and activities. The resources available to address environmental concerns ultimately come from the same source as those which are allocated to meet society's other needs and expectations. Application of the precautionary approach will mean that where scientific certainly is lacking, decisions will err on the side of caution and measures will be required to guard against potential harms. Perhaps, in the long run, this could result in the allocation of significant resources that could have been used to serve society's needs in different, and arguably more beneficial, ways. Currently, not enough is known about the effects of human activities on the environment. This knowledge gap will perpetuate a schism among stakeholders that will hinder development of a common view on appropriate protection strategies. The current impasse among stakeholders concerning contaminated sites standards for British Columbia provides one example of the division that will arise if there is no common perception of what the problem is and what the appropriate goals should be. There, the regulations intended to - 182 -make the legislation operative have been strongly criticized by business interests and have been the subject of ongoing revisions over the last three years. Science and assumptions about environmental effects should be at the heart of any action taken to protect the environment. Instead, much of the government effort in recent years has been devoted to policy and discussion of principles. Bureaucracies tend to lack the scientific expertise and operational experience to carry out necessary research. This lack of specialized knowledge may undermine the stakeholders' confidence in government and affect their sense that actions taken are either necessary or sufficient and that those actions will really contribute to sustainable development. Another essential ingredient for successful initiatives concerns the level of commitment of the participants, in particular the private sector. Each of the programs discussed in this thesis has required a significant commitment of time and resources from participants. In circumstances like the pollution prevention demonstration projects, facilities staff and regional managers of the environment ministry already have full time responsibilities under the existing permitting system, yet, they are also being asked to assist in initiating a completely new system. At the same time, because of Trail's success in addressing potential health risks under Trail Community Lead Task Force, those same individuals could be called upon to provide expert advice as part of the International Lead Management Centre initiative. The point here is that if business interests are going to take a leading role in assessing priorities and initiating actions to protect the environment in ways that are consistent with their overall operating goals, then it will be necessary to provide the human and financial resources to achieve those aims. - 183 -We are at a point in time where government is actively looking for ways to create an expanded role for the private sector in assuring environmental protection. Like the Dutch, governments in other countries have come to believe that environmental stewardship must be a shared responsibility. On the other hand, environmental interest groups are very concerned that government is turning its back on the environment and is abrogating its responsibilities in order to cut costs and stimulate job creation. These circumstances have created a window of opportunity for the private sector to build the confidence of the public and demonstrate an ability to play a key role in improving environmental protection, without the threat of prescriptive, command and control regulation. Without the commitment of sufficient resources, the private sector will be unable to successfully seize the opportunities it has been offered. If, in initiatives like the ILMC, industry fails to deliver on expectations because of inadequate support, the private sector's credibility may be severely undermined and critics will have an unprecedented opportunity to call for even greater prescriptive measures.228 If this proves to be the case, industry, the environment, and ultimately society will be worse off. 2 2 8 This is a prospect that would not bode well for the environment, the economy and competitiveness of industry, and society. One need only look to the United States where prescriptive laws like the contaminated sites legislation have resulted in unsustainable government administration oversight costs and litigation that has consumed upwards of 80% of the dollars allocated to address contaminated sites clean-ups. In the case of the OECD Lead Risk Reduction Program, failure of the voluntary action program would most likely lead to renewed calls for a Council Act on Lead, which could be treated as a precedent for other substances and environmental concerns, and thereby create yet another layer of bureaucracy. - 184 -If the considerations highlighted in Chapter Five can be employed and combined with the commitment and energy of stakeholders working in concert, then the potential exists for improved, even optimal environmental protection. If forces that have traditionally been at odds can be marshalled to work together to achieve common goals, the chances of success are greater than if we continue to operate according to the status quo. Presently, initiatives like those discussed in this thesis have made inroads toward establishing a new cooperative approach to environmental protection. Their success will ultimately depend on a sustained commitment and action among stakeholders to bridge gaps in communication and understanding and achieve common goals. The tools necessary to build those bridges may be found in the characteristics inherent in cooperative approaches. The question that remains is whether the stakeholders are really prepared to use them. - 185-BIBLIOGRAPHY Barton, B.J., R.T. Franson, A. Thompson, A Contract Model for Pollution Control, Vancouver: Westwater Research Centre, 1984. Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal, 24 March 1989. Breyer, S., Breaking the Vicious Circle. Harvard U. Press: Cambridge, Mass. 1993. Bodegom, L. van, The Dutch Industry Declaration of Intent, presentation to Globe at Globe 1996 Environment Conference, Vancouver: Canada, March 1996. Bourassa, A. and B. McKean, The Greening of Metals, World Mineral Notes, Vol. 10 No. 2 (1994). 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