Law, Faculty of
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Findlay, Caroline K. H.
Master of Laws - LLM
University of British Columbia
This thesis explores the interface between environmental regulatory discretion and scientific complexities. Two key observations about the nature of scientific information are made which lead to the argument in this thesis that science must be made more explicit in environmental decision making processes. First, scientific analysis is crucial to understanding the impact of pollution on the natural environment. Thus, it is fundamental to the design and implementation of environmental laws. Secondly, scientific information has certain methodological limitations and inherent uncertainties which often make it subject to interpretation and value judgments. These judgments involve important policy choices about environmental risks. In Canada, the use of science to shape environmental laws is a matter for bureaucratic discretion that is rarely subject to external scrutiny. This thesis argues for an express statutory obligation on environmental administrators to disclose and to explain the scientific analysis used to support the exercise of their discretion in making regulatory decisions. Discretionary powers are a necessary and permanent part of the Canadian legal landscape of environmental protection. Within this regulatory context, science is segregated as the rational "factual" basis for decisions when, in fact, science cannot be disentangled from the economic, political and social dynamics that influence regulatory discretion. The implications of this are illustrated by the experience of the United States which is considered for purposes of comparison in this thesis. Under U.S. environmental laws, regulators are required to disclose and to explain the scientific analysis used to support their regulatory decisions. While it is clear that a procedural "fix" is not a panacea, it does offer some distinct advantages that enhance the democratic legitimacy of environmental decision making. In short, a legal duty of this kind will improve the process of environmental decision making in Canada: (1) by requiring a more thoughtful analysis of the administrative task and the relevant information and thus increasing the accountability of regulators; and (2) by helping to harness and make accessible a valuable pool of knowledge. As a result, the integrity of the decision making process in Canada will be improved by making analysis more transparent and subject to challenge.
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POLLUTION CONTROL, ADMINISTRATIVE DISCRETION, AND SCIENCE:A JOURNEY THROUGH THE MAZE OF ENVIRONMENTAL LAWbyCAROLINE K. H. FINDLAYB.A. (Hons.), University of Western Ontario, 1982LL.B., Queen's University, 1985A THESIS SUBMITTED IN PARTIAL FULFILMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF GRADUATE STUDIES(FACULTY OF LAW)We accept this thesis as conforming to the required standard.THE UNIVERSITY OF BRITISH COLUMBIASeptember 1993© Caroline K.H. Findlay, 1993(Signature)viIn presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.DeDakftlent ofThe University of British ColumbiaVancouver, CanadaDate 11q3DE-6 (2/88)iiABSTRACTThis thesis explores the interface between environmental regulatory discretionand scientific complexities. Two key observations about the nature of scientificinformation are made which lead to the argument in this thesis that science must bemade more explicit in environmental decision making processes. First, scientificanalysis is crucial to understanding the impact of pollution on the naturalenvironment. Thus, it is fundamental to the design and implementation ofenvironmental laws. Secondly, scientific information has certain methodologicallimitations and inherent uncertainties which often make it subject to interpretationand value judgments. These judgments involve important policy choices aboutenvironmental risks. In Canada, the use of science to shape environmental laws isa matter for bureaucratic discretion that is rarely subject to external scrutiny. Thisthesis argues for an express statutory obligation on environmental administrators todisclose and to explain the scientific analysis used to support the exercise of theirdiscretion in making regulatory decisions.Discretionary powers are a necessary and permanent part of the Canadianlegal landscape of environmental protection. Within this regulatory context, scienceis segregated as the rational "factual" basis for decisions when, in fact, science cannotbe disentangled from the economic, political and social dynamics that influenceregulatory discretion. The implications of this are illustrated by the experience of theUnited States which is considered for purposes of comparison in this thesis. UnderU.S. environmental laws, regulators are required to disclose and to explain theiiiscientific analysis used to support their regulatory decisions. While it is clear that aprocedural "fix" is not a panacea, it does offer some distinct advantages that enhancethe democratic legitimacy of environmental decision making.In short, a legal duty of this kind will improve the process of environmentaldecision making in Canada: (1) by requiring a more thoughtful analysis of theadministrative task and the relevant information and thus increasing theaccountability of regulators; and (2) by helping to harness and make accessible avaluable pool of knowledge. As a result, the integrity of the decision making processin Canada will be improved by making analysis more transparent and subject tochallenge.ivTABLE OF CONTENTSAbstract^ iiTable of Contents^ ivExcerpt from the Heidelberg Appeal^ viChapter One^Introductory Overview^ 1A. Lessons From Our Past 2B. Making Decisions under Environmental Laws^9C. The Context of Science^ 16D. The Methodology and Scope of this Thesis^20Chapter Two^The Administrative State and Environmental Laws^25A. Introduction^ 25B. The Age of Bureaucracy and the Nature of Discretion^27C. The Theoretical Framework --The Political,Administrative and Legal Contexts^39D. Discretion and Environmental Laws 51E. Conclusions^ 57Chapter Three^The Role of Science in Environmental Regulation^59A. Introduction -- The Need for Science^59B. The Nature and Use of Scientific Knowledge^66C. The Debate: The Separateness of Science 83D. Conclusions^ 85Chapter Four The Case for Scientific Explication -- An Examinationof the U.S. Experience^ 88A. Introduction 88B. The Clean Air Act - An Overview^92C. Standard Setting and Science -A Closer Look^103D. Conclusions^ 123Chapter Five^Concluding Remarks^ 126Bibiliography^ 135We want to make our full contribution to thepreservation of our common heritage, the Earth.We are however worried, at the dawn of the twenty-firstcentury, at the emergence of an irrational ideology which isopposed to scientific and industrial progress and impedeseconomic and social development.We contend that a Natural State, sometimes idealized bymovements with a tendency to look toward the past, does notexist and probably never existed since man's first appearance inthe biosphere, insofar as humanity has always progressed byincreasingly harnessing Nature to its needs and not the reverse.We fully subscribe to the objectives of a scientific ecologyfor a universe whose resources must be taken stock of,monitored and preserved.But we herewith demand that this stock-taking,monitoring and preservation be founded on scientific criteriaand not on irrational preconceptions....We intend to assert science's responsibility and dutiestoward society as a whole.We do however forewarn the authorities in charge of ourplanet's destiny against decisions which are supported bypseudo-scientific arguments or false and non-relevant data.**Excerpt from the Heidelberg Appeal, signed by 218 scientists worldwide andaddressed to the heads of state attending the Earth Summit, Rio, 1992(Source: "Beware the False Gods in Rio", Wall Street Journal, June 1, 1992)vi1CHAPTER ONEINTRODUCTORY OVERVIEWThe face of pollution control in Canada has changed over the last twodecades: it lacks the innocence of the earlier years, but now possesses thefirst wrinkles of wisdom gained through experience.'The primary concern motivating this project has been to explore, from a legalperspective, the interface between science and law in the area of environmentalprotection. On one hand, it appears obvious that scientific understanding isfundamental to both addressing and preventing the impact of pollution on the naturalenvironment. It is key knowledge. On the other hand, scientific uncertainty in thisarea often means that this information is subject to interpretation and valuejudgments. There is a conspicuous absence on the face of many Canadianenvironmental laws as to how much reliance should be given to scientific analysis.In Canada, this is a matter for bureaucratic discretion that is rarely subject to externalscrutiny.The combined effect of these two observations, that science is both necessaryto, yet subject to the vagaries of, the administrative process, leads to the somewhatobvious legal argument presented in this thesis, namely, that science is so crucial tothe shape of environmental policies and laws that the role of science must be mademore explicit in decision making processes. It will be argued that there should be a1 K. Webb, Pollution Control in Canada: The Regulator y Approach in the 1980's. AdministrativeLaw Series, A Study Paper prepared for the Law Reform Commission of Canada, (Ottawa: Minister ofSupply and Services, 1988), at pg. 9.2statutory duty on environmental regulators to disclose and explain the science behindtheir decisions. In order to give this argument context, this introductory chapterbegins by examining the general Canadian experience to date with regulatoryenvironmental protection. It then provides an overview of the general nature ofenvironmental laws and how science interfaces with this regulatory process. Thisdiscussion will also explain the key terms used in this thesis. Finally, the methodologyand limitations of this thesis will be set out.A. Lessons From Our PastCanadian environmental policies and laws have, but for a few exceptionalevents, developed in an evolutionary manner, gradually adjusting to theunderstandings brought by experience. Over the last twenty years, this experience hastaught us a number of valuable lessons about the dynamics and realities of the designand implementation of environmental protection laws. We have learned that thesolutions to environmental concerns can be costly and that they are extremelycomplex, both technically and politically. There is increasing judicial recognition ofthis situation. For example, in a recent Ontario case dealing with PCBcontamination, Fraser J. made the following observation about the the "arbitrary"limit of 50 parts per million of PCBs set as the level in regulations triggering legalaction, in this case, clean-up: "Such regulatory decisions reflect a complex weighingof choices in terms of economic activity, costs, technological options and social3goals."2 The costs and the scientific/technological and political complexitiesassociated with environmental protection are important factors in the history ofCanadian environmental regulation that will inevitably continue to shape the future.Although these themes are not necessarily comprehensive of all that has beenlearned, they are considered central to the Canadian experience to date.3The Costs. Evidence of the often enormous financial costs associated with efforts tocontrol or eliminate pollution are plentiful4, but consider just one example.Recently, the Canadian federal government has put in place three sets of regulationsapplicable to the pulp and paper industry.5 It is estimated that the pulp and paperindustry will incur costs of about $4.85 billion in order to comply with these2 R. v. Consolidated Mayburn Mines Ltd. et. aL (1992), 73 C.C.C. (3d) 268 (Ontario Prov. Div.),at pg. 277.3 These themes, and others (such as the ideological dimensions of the environmentalmovement), are elaborated on by many commentators in the literature. For some interestingCanadian perspectives, see the following (references in full in bibliography): Boardman, CanadianEnvironmental Policy; Doern, Getting It Green; MacDonald, The Politics of Pollution; Schrecker,Political Economy of Environmental Hazards; Tingley, Into the Future: Environmental Law and Policyfor the 1990's; and Webb, Pollution Control in Canada.For example, it has been estimated that the costs of environmental regulation in the UnitedStates average about $90-100 billion/year, about half of the total cost of government regulation. Itis estimated that by the year 2000 this will increase to $155 billion or 2.5% of the nation's GNP.These figures are cited by E. Donald Elliott, "Environmental Law at a Crossroad", 20 NorthernKentucky Law Review 1 (1992), at pg. 1. It is difficult to readily obtain any comparable Canadianstatistics.These three regulations are: (1) Pulp and Paper Mill Effluent Chlorinated Dioxins and FuransRegulations, promulgated under the Canadian Environmental Protection Act ("CEPA"), SOR/92 -267;(2) Pulp and Paper Mill Defoamer and Wood Chip Regulations, promulgated under CEPA, SOR/92 -268; and (3) Pulp and Paper Effluent Regulations, promulgated under the Fisheries Act, S0R192 -269.4regulations.6 One analyst has commented that one of the most disturbing aspectsof these regulations is that it is unclear what overall benefits will be gained by thisexpense.7 Furthermore, the allocation of these costs has presented a constantstumbling block for achieving effective environmental control: "Who pays forpollution prevention - governments, through spending, grants, and tax incentives? thepolluting industry? the worker who loses his or her job? the province or countrythat sees economic growth transferred to its trade competitors because of itsenvironmental regulation?"8. These are common questions in the environmentaldebate.The Science. Very little scientific assurance can be given about the real risksor impacts that many human activities will have on the environment. Indeed,scientific uncertainties abound in this area. Again, the experience of the pulp andpaper industry is exemplary of the nature of the scientific information that typically6 This figure is based on cost estimates set out in the Regulatory Impact Analysis Statementsaccompanying the publication of the final regulations, supra, fn 5. The costs are computed over 20years and discounted at 10%. This figure is also cited by William T. Stanbury, "Reforming the FederalRegulatoty Process in Canada, 1971 -1992", Report to the Sub-Committee on Regulations andCompetitiveness of the Standing Committee on Finance, published as Appendix SREC-2 in theMinutes of Proceedings and Evidence of the Sub-Committee, House of Commons, Third Session ofthe Thirty-Fourth Parliament 1991-1992, at pg. 10 and Table 6-3.7 Stanbury, supra, fn 6, at pg. 10. Professor Stanbury notes: "The Regulatory Impact AnalysisStatement failed to provide any estimate of the benefits of the measure in either physical or economicterms." However, the Statement does attempt to set out qualitative benefits based on improvedwatercourse quality and the value of passing on to future generations improved environmentalconditions. Professor Stanbury's comment is compounded by the fact that monetary values may notbegin to capture the benefit or values inherent in the various perspectives that underlie environmentallaws. While the advantages and disadvantages of "cost-benefit" analysis may be debated, it is at leastarguable that without some systematic analysis, it will be difficult to justify such a huge cost. Query:could this money be better spent?8 Doug MacDonald, The Politics of Pollution: Why Canadians Are Failing Their Environment,(Toronto: McClelland & Stewart Inc., 1991), at pg. 12.5exists in environmental regulation. Dioxins and furans, two substances known asorgano-chlorines that have been linked to human health concerns and are associatedwith pulp mill effluent, have been a pollution issue for regulators over the last fiveyears. Scientists have different views about the potential health risks these substancespose. A world-renowned expert on cancer causing substances, Dr. Bruce Ames,referring to dioxins (TCDD) states: "there is no convincing evidence the TCDD iscarcinogenic or teratogenic [causing fetal abnormalities] in man, although it is inrodents."9 Compare this opinion with that of Dr. David Schindler, a scientist withthe Canadian federal government for 22 years: "organo-chlorines are an extremehuman carcinogen."10 Who is to be believed in such a case, and what are theultimate implications of this to a legal decision to regulate? With respect to dioxinsand furans, despite these differing scientific opinions, the Canadian government hasassessed the toxicity of these substances and has concluded "that these compoundsare highly toxic and that they may enter the environment in quantities which haveimmediate and long term harmful effects on the environment and they constitute adanger to human health in Canada."11 This raises the question of what kind ofscientific evidence was relied upon and why. In many ways, the answers can be castas political ones.9 "Dioxins: time for tough limits." The Vancouver Sun, Letters in the OP/ED page, pg. A13.[emphasis added].10 Ibid. [emphasis added].11 Pulp and Paper Mill Effluent Chlorinated Dioxins and Furans Regulations, supra, fn 5, at pg.1946.6The Politics. The last lesson learned is indeed a political one. Forenvironmental decisions to have integrity and credibility with Canadian citizens, thedecision making processes need to be democratized. For too long, regulation of theenvironment has been seen as a closed-door negotiation process between regulatorsand industry alone, backed by a legal system allowing for little room to participatein or challenge decisions.12 Concern about the alienation that this has caused andcries for greater participation by other interested parties have resulted in reformefforts by policymakers to improve the processes of decision making. Indeed, thisconcern has prompted one observer to state that process is all that really matters inthis area: "In democratic policymaking, process always matters. But inenvironmental policymaking, process seems to be everything."13The dissatisfaction with how environmental policy and law have beenmanaged in the past is a continuing theme in present reform efforts. One does nothave to look far for evidence, or at least the rhetoric of it, regarding the recentpreoccupation of Canadian governments with improving environmental decisionmaking processes. In British Columbia, a discussion paper outlining a five-year actionplan for a new legislative framework (tentatively entitled the British ColumbiaEnvironmental Protection Act or the "BCEPA") expressly addresses the need to make12 Bi-partite bargaining has been endemic to the process of Canadian environmental regulation.For further discussion, see, for example, A.R. Thompson's classic study, Environmental Regulation inCanada: An Assessment of the Regulator), Process, (Vancouver: Westwater Research Institute, 1980).13 G. Bruce Doern, Canadian Environmental Policy: Why Process is Almost EverythingCommentary #19 for the C.D. Howe Institute, (Ottawa: Renouf Publishing Company Limited, July1990), at pg. 2.7procedural reforms:The provisions of the new act should promote public involvement insetting standards...Few things are more suspect to an increasingly well-informed public than to learn that proposed regulatory initiatives havebeen shared with industry alone...The BCEPA should entrench the principle of stakeholderconsultation in policy development initiatives, through "notice andcomment" procedures.14Political accountability is also at the heart of Ontario's proposed Environmental Billof Rights:In examining present environmental laws, it became apparent that thepublic does not have a consistent, clear right to participate insignificant environmental decisions by government. Government makessuch decisions in the form of policy, regulations or when it issueslicences, permits, approvals or orders controlling activity which mayresult in environmental harm...A state of law which does not expresslyrecognize the public as a partner working with government andindustry to promote a better environment is not likely to inspire publicconfidence or participation. The public requires an accessible andtransparent decision-making process in order to measure government'saccomplishments and to hold government accountable where it fails tomeet public expectations respecting environmental protection.15The foregoing discussion has distilled the major Canadian environmentalregulatory "lessons" from the past in three key areas: economic impact, scientificcomplexities and political dynamics. These lessons highlight the fact that much of theenvironmental dialogue centres around competing value systems, whether that be inthe form of how best to allocate costs, how to deal with risk uncertainty or how to14 Ministry of Environment, Land and Parks, New Approaches to Environmental Protection inBritish Columbia: A Legislation Discussion Paper (April 27, 1992), at pg. 31.15 Ontario Ministry of the Environment, Report of the Task Force on the Ontario EnvironmentalBill of Rights (July, 1992), at pg. 9.8accomodate the interests of various groups. They pose great challenges for the futureof environmental protection on the economic, scientific, political and legal fronts.Several of the underlying themes suggested by these lessons are of central interest tothis thesis. These themes are: (1) the importance of democratic legitimacy to theprocess of environmental decision making; and (2) the inevitability and implicationsof the involvement of science in these decisions.As already stated, this thesis will argue that the scientific or technicalreasoning upon which environmental regulators base their decisions should be madeexplicit in decision making processes. In legal terms, this means that there should bean express statutory obligation on environmental administrators to disclose and toexplain, both before and after a regulatory decision, the scientific analysis used tosupport the exercise of their discretion. The focus of this argument, as noted below,will be on the standard setting processes of regulation making and issuing permits asthe decision points requiring scientific explication.In short, this legal duty will result in several significant improvements to theprocess of environmental decision making designed to meet the challenges ahead:(1) it will increase the accountability of decision makers by forcing a more thoughtfulanalysis of the regulatory task and the relevant information; (2) it will help toharness and make accessible a valuable pool of knowledge; and (3) these first twoconsequences, in turn, will improve the integrity of the process by making analysismore transparent and subject to challenge.9B.^Making Decisions under Environmental LawsOver the last two decades, a great deal of literature has been generateddescribing and analyzing the plethora of environmental protection laws16 andregulations that have emerged in both Canada and the United States. It is widelyrecognized by these commentators that one of the hallmarks of environmentallegislation is that it confers broad discretionary powers° on delegated administrativeauthorities:They can be viewed as faceless purveyors of state policy, as benevolentservants of society or as pawns manipulated by the capitalist powerelite. No matter how they are perceived, there can be no doubt thatgovernment bureaucrats occupy a pivotal role in the pollution controlprocess. Behind every piece of environmental legislation, behind everyMinister of Environment lies a bureaucrat, and it is largely in his or herhands that the instruments of government policy are wielded.18Nonetheless, there is a noticeable dearth, particularly in Canada, of eithergeneral or legal literature providing any enlightening examination of theadministrative process in the context of environmental regulatory decision making16 "Environmental protection law" covers broad legal terrain and may include common lawdoctrines and statutes ranging from local zoning and public health laws to comprehensive schemes forresource management. However, for the purposes of this thesis, the following definition is adopted:Environmental laws means only those measures that are aimed at protecting the natural environmentand, more specifically, means those laws or regulations that regulate potentially harmful conduct.These latter laws are pollution licensing statutes and are typically labelled as "command and control"laws.17 The concept of discretionary powers will be discussed in greater detail in Chapter Two. Inshort, the notion of discretion as used herein means "an express grant of power conferred onadministrative officials where the determination of the standards according to which power is to beexercised is left largely to them". (Denis J. Galligan, Discretionaty Powers: A Legal Study of OfficialDiscretion, (Oxford: Clarendon Press, 1986), at pg. 1.)18 Kernaghan Webb, "Between Rocks and Hard Places: Bureaucrats, Law and Pollution Control"in Robert Paehlke and Douglas Torgerson, eds., Managing Leviathan: Environmental Politics and theAdministrative State, (Peterborough: Broadview Press, 1990), at pg. 201.10A current researcher had this to say about Canadian environmental policy:University and other researchers who are now studying the field arestruck by the paucity of literature and data. After more than 20 yearsof attempted action - and some notable progress - on the environment,we still know very little about the policy and implementation record.Data on monitoring, testing, enforcement, costs and benefits, naturalstock, and so on, remains thin or, where available, extremely unreliableand user unfriendly. 19Even within the realm of general administrative law, writers provide little analyticaltreatment of the inner realities of the administration despite its clear connection withmany of the preoccupying concepts of administrative law. 2° For example, oneleading scholar in this area observes that administrative law is "concentrated onquestions of jurisdiction, errors of law, natural justice, and remedies, each endlesslyfascinating in its own way, but at the same time seeming to miss the most importantquestion, namely just how administrative powers do get exercised and what contraintsthey are subject to".21 This conception of administrative law reflects the fact thatlawyers tend to view the administrative process from the perspective of dysfunction,that of judicial review. It is the premise of this thesis that a more systemic notion ofthe administrative process must be adopted in order to suggest any improvements.In environmental law, this gap in the understanding of "how" the law "in action" works19 Tom Conway, "Taking Stock of the Traditional Regulatory Approach" in G. Bruce Doern,Getting It Green: Case Studies in Canadian Environmental Regulation, (Ottawa: Renouf PublishingCompany Limited for the C.D. Howe Institute, 1990), at pg. 26.20 The lack of proper treatment in administrative law with respect to the "realities" of theprocess are acknowledged by two administrative law scholars in their excellent treatises. See ReneDussault and Louis Borgeat, Administrative Law: A Treatise, 2nd Edition, (Toronto: Carswell, 1985;Translated by Murray Rankin) and Galligan, supra, fn 17.21 Galligan, supra, fn 17, at pg. vii. [emphasis added].11is especially troublesome given that the vast majority of the content, and thus the realimpact, of the law is dictated by environmental regulators. A minor sampling ofsome of the discretionary powers exercised by environmental regulators in BritishColumbia, as illustrated by the following example, gives one a sense of the vast scopeand diversity of these powers.Consider the situation of an imaginary plastics manufacturing company wishingto establish a plant outside of Vancouver on the Fraser River. Assume that thecompany's operations will cause some "waste" in the form of toxic air emissions andeffluent discharge into the river. First, the company may be required to conduct anenvironmental impact assessment "if the Minister [of Environment] considers" thatthe operations would have a "detrimental environmental impact."22 Very littleelaboration is given in the Environment Management Act as to the content of the term"detrimental environmental impact". Subsection (1)(2) states that, for the purposesof the Act, a "detrimental environmental impact" occurs "when a change in the qualityof air, land or water substantially reduces the usefulness of the environment or itscapacity to support life". What does substantial reduction mean? Does it mean amore than 50% risk of harm? If so, consider the regulatory consequences of this inthe event that the decision maker has the burden of proving this. In certain cases,it has been observed that such statutory requirements "are seen by agency officialsas reasons for caution, and may generally predispose an agency to an approach whicherrs on the side of industry, at least unless the agency has made a clear commitment22 Environment Management Act, S.B.C. 1981, c. 14, s. 3. This section is permissive (ie. theMinister may require an environmental impact assessment).12to (and has the financial and personnel resources to support) a strategy of clarifyingthe limits of regulatory authority through test cases. In Canada, such commitmentsare rare, if they exist at all."23In addition, assuming that the air and water emissions of the company are"wastes" (as defined in the relevant statute), the company must obtain the necessarywaste discharge permits under the B.C. Waste Management Act (the "WMA").24These permits will be issued by the regional waste manager "subject to requirementsfor the protection of the environment that he considers advisable"25. The WMAdoes not set out any criteria that the manager must meet in this regard althoughsubsections 8(1)(a)-(f) do enumerate some items that the manager may include in thepermit such as monitoring, the posting of security, conducting studies, etc.Once the company is ready to operate, the WMA requires that spills of any"polluting substances" be reported. A "polluting substance" is defined in the WMAas any substance that could "in the opinion of the minister, substantially impair theusefulness of land, water or air" if it were to escape or be spilled. 26 What set ofcriteria does the minister use to determine if the environment is "substantiallyimpaired"? Again, does this mean a greater than 50% risk of harm? How is this23 Ted F. Schrecker, Political Economy of Environmental Hazards. Protection of Life Series, AStudy Paper prepared for the Law Reform Commission of Canada, (Ottawa: Minister of Supply andServices, 1984), at pg. 11. [emphasis added].24 Waste Management Act, S.B.C. 1981, c. 41, s. 3(3)(a).25 Ibid, s. 8. [emphasis added]26 Ibid, ss. 10 (1). [emphasis added]13information made available to the company so that it is certain of its spill reportingobligations?Lastly, where a manager is satisfied "on reasonable grounds" that a substanceis causing "pollution", meaning a substance "that substantially alters or impairs theusefulness of the environment", a pollution abatement order may be issued.27 Whatare reasonable grounds in this case? Is scientific data showing cancer in rats fromthe substance in the effluent a "reasonable" basis to issue an abatement order thatmay cost millions of dollars to comply with?The above example is not a comprehensive picture of all of the environmentallaws that the company would be subject to. It is merely intended to illustrate thateach legal requirement is subject to administrative discretion with virtually nostatutory criteria as to how this discretion is to be exercised. 28 The implications ofthis are that companies are very much in the hands of the administrators, and withinthis system, there is little advance certainty as to the rules of the game. How doesa regulator determine whether an activity has a detrimental environmental impact,or whether it substantially impairs the environment? If it does, what measures arenecessary or appropriate to protect the environment? Should he quantify thepotential risks and weigh these against the costs of the advisable protective measures?27 Ibid. s. 22.28 To further exacerbate this, one of the peculiarities of environmental regulation is that it isvery difficult to obtain information about how these administrative judgments are made. This maybe contrasted with the practise of other regulatory intensive areas of the law, such as tax or securities,where administrative officials frequently publish "Information Circulars" or "Policy Statements"advising the regulated community as to how the administrator will exercise his discretion.14The above example is also intended to illustrate the types of environmentaldecisions that a regulator makes. In general, there are three types of environmentaldecision making processes to consider: policies, projects and standards. 29 Policies,in the ordinary course of events, are at the top of the hierarchy and are consideredthe bailiwick of politicians. They are "statements of general intent and direction thatset out a government's major purposes in pursuing particular goals and some of themeans to be used to achieve them." 3° In the above example, it may be said that itwas a policy decision to design the WMA using a regulatory scheme of pollutionpermits rather than, say, to completely prohibit pollution. Project decisions, usuallyrelating to large facilities such as airports, dams or pipelines, are more specific andare typically governed by impact review assessment legislation. Assessment legislationis outside of the scope of the focus of this thesis. Lastly, the standard setting processrefers to the process for developing rules for "specific effluents, pollutants, orproduction technologies pursuant to parent legislation and/or regulations." 31 In theexample above, the requirement to obtain a waste permit under the WMA is anexample of the standard setting process. The standard setting process is afundamental part of environmental protection laws, typically called "command andcontrol" laws, because they focus on what particular polluters must do to meet thelaw and control this behaviour through penalties. These laws and the process of29 Doern, supra, fn 13, at pg. 3.30 kid31 kid, at pg. 5.15setting regulatory standards will be the focus of this thesis for two reasons. First,there is more history and thus more experience and information available about theseprocesses. Secondly, and more significantly, scientific issues are particularly salientin this context.Although, conceptually, there are generally three types of decisions inenvironmental laws - policies, projects and standards - they are rarely so discrete inpractise. It should be clear from the above example that the very nature of thediscretionary powers granted under environmental laws require that policy decisionsbe made in order to implement the laws. Each time that a regulator issues a permitand determines what is "advisable" to protect the environment or issues an order torectify the "substantial alteration" of the environment, he is making a policy choiceabout what constitutes an acceptable environmental risk. Furthermore, the substanceof these decisions are, by and large, very difficult to challenge under the narrowprinciples of Canadian administrative law. The fact that there is a limited formalinstitutional check on this discretion adds to the true power of discretionary decisionmaking under Canadian environmental laws. This is not to suggest that regulatorsact with unbridled powers. There are, of course, constraining forces such as politicalpressures, economics, and institutional factors which place very real limits ondiscretionary powers. One of the key factors influencing environmental decisionmaking is scientific knowledge and the understanding it brings to any analysis of theenvironmental impacts of commercial/industrial activities. Until recently, the role ofscience in environmental decision making has received limited attention in the legal16literature despite its clear relationship to the substance of administrative policies andregulatory schemes.C.^The Context of ScienceThe natural or physical sciences32 are the central fountain of knowledge fromwhich human understanding about environmental impacts and hazards is obtained.Without this understanding, we would have little knowledge of, for example, ozonedepletion33 or the potential risks associated with many toxic substances. The typeof scientific knowledge available to and used by regulators in environmental problemsolving is as vast and varied as the types of environmental issues encountered intoday's world. Yet, it is fair to say that one of the fundamental aspects ofenvironmental standard setting decisions is that they are about understandingenvironmental risks. In the jargon of risk analysts, "risk" in this context means theprobability of harm multiplied by the magnitude of an adverse event for humans orthe environment34. These risks result from human and commercial/industrial32 "Natural science" refers to that branch of knowledge that is concerned with the physical worldand its phenomena. More generally, "science" means accumulated and accepted knowledge that hasbeen systematized and formulated with respect to the discovery of general truths or the operation ofgeneral laws. See the Webster's Third New International Dictionary.33 See Douglas A. Smith, "The Implementation of Canadian Policies to Protect the Ozone Layer",in Doern, supra, fn 19, at pgs. 111-128, for a discussion of the role that science played in achievinginternational agreement on ozone depletion (arguing that there was significant convergence ofscientific opinion to provide the basis for useful assessments of costs and benefits).34 This definition of "risk" is adopted from the general literature on risk assessment. See AnneV. Whyte and Ian Burton, eds., Environmental Risk Assessment, SCOPE 15, (New York: John Wiley& Sons, 1980), at pgs. 2-3; and Donald T. Hornstein, "Reclaiming Environmental Law: A NormativeCritique of Comparative Risk Analysis", 92 Columbia Law Review 562 (1992), at pg. 571.17activities, particularly those associated with the use or release of synthetic chemicals.Accordingly, the discussion in this thesis will draw upon the science related to toxicchemical risk anaylsis.35 Despite this focus on standard setting and toxic chemicals,this analysis and its conclusions provide general insights into the environmentallaw/science interface.36In the context of environmental standard setting, it is generally thought thatscience brings certainty and rationality to the discretionary framework ofenvironmental decisions. However, as will be demonstrated in Chapter Three of thisthesis, scientific understanding of environmental risks is limited. These limitationsrequire scientists and/or regulators to use their discretion to fill in the knowledgegaps. What are the implications of this to the regulator? The regulator may not beequipped to evaluate the scientific information he is using and thus to understand themethodological and knowledge limitations. However, even assuming that theregulator is versed in the scientific uncertainty that he deals with, it is clear that hemust exercise discretion to interpret and assess the uncertainties presented by thescientific data.As one begins to explore the nature of discretion in environmental decisionmaking and its intersection with scientific knowledge, it becomes apparent that the35 A large part of the literature dealing with the debate about science in environmental decisionmaking that I have surveyed examines the use of science in the context of identifying and quantifyingthe risks of toxic chemicals.36 This observation has been made by several writers who have studied science andenvironmental regulation. See, for example, Ted Greenwood, Knowledge and Discretion in GovernmentRegulation, (New York: Praeger Publishers, 1984) and John D. Graham, Harnessing Science forEnvironmental Regulation, (New York: Praeger Publishers, 1991).18core of this intersection revolves around the theme of democratic integrity. In thefinal analysis, the role of science in the context of environmental decision makingmust be viewed against the larger backdrop of the role of regulatory power indemocratic societies. The scholarly analyses measuring how good a job ourenvironmental regulators do when dealing with science is a debate inspired by thequestion: "How should we structure our institutions so as to take account of scientificcomplexity without sacrificing " - and here you can fill in a list of whateverdemocratic political traditions are considered valuable such as accountability, fairness,or rationality.37 Typically, it is concluded that our regulators could indeed do abetter job. Often the suggested solution for reform is to implement better rules -better legislative rules and better procedural rules, both of which are orientedtowards controlling the exercise of discretion. If we had better rules, so the argumentgoes, we would have socially acceptable and workable decisions. This is the rationalebehind the American rulemaking framework38 imposed on U.S. administrative37 The observation that this question drives the scholarly discussions about the role of sciencein environmental decision making is made by Professor Stephen Carter in his astute article,"Separatism and Skepticism", 92 The Yale Law Journal 1334 (1983). Carter states that perhaps this isthe wrong question. He posits that the better question might be to ask "Why decisions involvingscience should be treated any differently from other complex decisions in our society?". Otherdecisions which we accept often defy rational analysis. Although I think this is a very perceptiveremark and undoubtedly of some philosophical significance, the answer is that science is indeedviewed differently. There are probably many explanations for this some of which will be canvassedin this thesis. However, let me say at the outset that I accept that the proper analytical starting pointis to consider the question of how we can best use science to make environmental decisions so thatthey have legitimacy and respect in our democracy.38 The American system is examined in greater detail in Chapter Four. "Rulemaking"generally refers to the administrative actions which result in the promulgation of "general rules" (asopposed to case-by-case adjudication) which, for all intents and purposes, are equivalent to the makingof regulations and issuing permits under Canadian law. Rulemaking is subject to proceduralrequirements under the U.S. Administrative Procedure Act, as interpreted by the courts: "The courtshave said, consider all the "relevant" evidence, respond to all "significant" comments, and weigh all19agencies and for this reason, it is often pointed to as an improvement on the "unruly"Canadian approach. But the rulemaking approach also has its critics. Too manyrules can result in a defensive preoccupation with information accumulation at thecost of efficiency39, or they can create rigidity which can sacrifice scientificlegitimacy.40 In addition, rather ironically, the result of these rules is that they oftencreate more discretion. One American scholar observes that the uncertainty createdby judicial review of the rulemaking process in the United States results in agencieslooking for ways to "avoid the rulemaking quagmire...So instead of more rules, wehave more discretion."41So we return to the original question. How can we make the best decisionsand accomodate scientific complexities? One author has observed that the challengein this area is to "design a regulatory process that captures the knowledge of sciencewhile safeguarding the proper domain of political choice."42 To meet this challengewe need to better understand the regulatory process and the use of scientificknowledge within it. This thesis seeks to elucidate this understanding and to propose"reasonable" alternatives" (as noted by R. Shep Melnick, "Administrative Law and Bureaucratic Reality",44 Administrative Law Review 245 (1992), at pg. 247).39 ibid.4° See, for example, Sheila Jasanoffs critique of the U.S. administrative process (in the contextof analyzing the Occupational Health and Safety Agency's program for assessing carcinogens), in"Science and the Limits of Administrative Rule-making: Lessons from the OSHA Cancer Policy", 20Osgoode Hall Law Journal 536 (1982), at pg. 554 ("Values cherished by American administrativeagencies - uniformity, continuity, certainty - seem frequently at odds with the demands of science,particularly in areas of rapidly developing knowledge").41 Melnick, supra, fn 38, at pg. 247.42 Graham, supra, fn 36, at pg. 1.20a viable legal solution for addressing the concerns raised by the interface betweenenvironmental regulation and science.D.^The Methodology and Scope of this ThesisThis thesis seeks to examine the dynamics of "how environmental regulatorsregulate" with a particular focus on the interface between scientific information andthe administrative process. The purpose of this examination is to gain a betterunderstanding, from a legal perspective, of the role of science in environmentaldecision making and to provide some insights into the tough job faced by ourregulators. Although it is often recognized that scientific uncertainties plague theenvironmental administrator's task, it is rare to find solutions as to how to addressthe problems resulting from these uncertainties. The argument in this thesis issimple. Regulators need to explain the assumptions, methodologies and gaps relatingto the science behind what they are doing and why.Chapter Two of this thesis examines the notion of environmental regulatorydiscretion in the context of the modern administrative state. Discretionary powersare a necessary and permanent part of the legal landscape in environmentalprotection and the exercise of this discretion is influenced by many competinginterests, including science. Within this context, in order for regulatory decisions tobe legitimate, they must adhere to the underlying principles of Canadian democracy,such as accountability, openness, rational decision making and fair procedures. Ingeneral, the regulatory process of decision making under Canadian command and21control pollution laws falls short of meeting these objectives. This regulatory process,as it currently operates, segregates science in a way that allies it with expertise andrationality; it does not subject this information to open scrutiny through participatoryprocedures. This exploration of the regulatory context of administering Canadianenvironmental laws in Chapter Two sets the stage for a consideration of the role thatscience plays, the subject of Chapter Three.In Chapter Three a fuller examination of the nature and use of scientificknowledge in environmental standard setting is considered. This is done through caseexamples and a more detailed discussion of the risk assessment tools used in standardsetting, epidemiological and animal studies. This discussion supports the argumentthat science is not separate from the economic and political dynamics of regulatorydiscretion. This argument lays the foundation for the legal argument in this thesis,which is further explored in Chapter Four through an examination of the U.S.experience.In the United States, the basic tenets of administrative law and procedureimpose general duties on regulators to explain their regulatory result through variousmechanisms, including structured nilemaking and liberal judicial review. With respectto environmental decision making and standard setting, U.S. regulators are requiredto disclose and to explain the scientific analysis used to support their regulations.Accordingly, the U.S. experience affords an illustration of how a procedural rulerequiring scientific explication functions. In Chapter Four two key standard settingprovisions of the U.S. Clean Air Act are discussed. From this discussion, it is clear22that a procedural fix is not a panacea; there are both advantages and disadvantagesof such a procedural approach. Based on the U.S. experience, one of the benefitsof a legal procedure of this kind is that it forces a link between the regulatorydecision and the scientific analysis. This can reveal genuine deficiencies in thescientific data, and through public scrutiny, it can also foster a more fullsomeparticipatory debate about environmental risks. On the down side, this link betweenthe regulatory rationale and science may be construed as requiring a reliance onscience which can produce unwanted results such as the promotion of delay (throughthe need for more and better science) or bureaucratic fence-sitting, and the disguisingof policymaking behind the veneer of science.Finally, Chapter Five summarizes the substance of the argument in this thesisand examines what a procedural rule dealing with the disclosure and explication ofscience might look like in Canada and why it would improve environmental decisionmaking. It also presents some concluding reflections on the interface betweenenvironmental regulatory demands and scientific complexities.Some preliminary comments about the scope and limitations of this thesis arenecessary. Treatises have been written on each of the separate topics ofadministrative process and scientific knowledge and about their interface. This is atechnically complex and analytically challenging area. My goal in this thesis is tosynthesize some of this learning so as to give lawyers a critical context in which toexamine the role that science plays in the framework of environmental law, itsprocedures and norms. Lawyers not only need to understand what the law is; it is23equally important for lawyers to appreciate how the law is made. In environmentallaw, the "how" of lawmaking goes beyond understanding the due process aspects ofdecisions. It is also vital to understand the substance of the scientific content behindthe formulation and implementation of environmental laws and policies. The authorsof a recent Canadian study dissecting the risk analysis controversy surrounding thecancellation of the herbicide alachlor had the following to say about the valuablecontribution of the public interest lawyers in that case:...they raised many important questions about the uncertainties thatplagued the [alachlor] studies presented to the Review Board byothers, and identified the assumptions underlying many of theinterpretations of the data.43Given my own tendency to think of science as a "black box", a tendency which I knowis shared by many in the legal profession, I think it is valuable for environmentallawyers to confront this intellectual barrier and to assess the implications of thescience/law relationship in the sphere of environmental protection. In addition, thescientific component of this discussion, attempts to distill a lot of highly technical andcomplex information. This distillation is a layman's understanding of this informationin order to meet the overall goal herein of highlightling the methodologicalparameters and limitations of science as it relates to regulatory discretion.Some comments about the nature of the sources relied on are also needed.Although there is some very thoughtful and useful Canadian literature onenvironmental decision making and science, it is limited. The vast majority of the43 Conrad Brunk et al., Value Assumptions in Risk Assessment: A Case Study of the AlachlorControversy, (Waterloo: Wilfrid Laurier University Press, 1991), at pg. 21.24relevant literature on, for example, environmental regulatory discretion and riskanalysis is American. Accordingly, this thesis has relied heavily on U.S. material.Indeed, many Canadian sources draw on U.S. writings. In addition, much of thescience used by American regulatory agencies is relied upon in Canada.' Nothingin the Canadian literature leads me to believe that this reliance on the U.S. literatureand experience is unwarranted, outside of some caution that is needed as a result ofthe obvious political and legal institutional differences between Canada and the U.S.Finally, the scientific component of this thesis discussion dealt with in Chapter Threeattempts to distill a lot of highly technical and complex information.' Schrecker, supra, fn 23, at pg. 3 (there is "widespread reliance" by Canada on American testdata with respect to environmental hazards).25CHAPTER TWOTHE ADMINISTRATIVE STATE AND ENVIRONMENTAL LAWSAdministrative agencies of the regulatory kind are established to cany outthe terms of the treaties that the legislators have negotiated and ratified.They are like armies of occupation left in the field to police the rule wonby the victorious coalition.'A.^IntroductionOne of the discriminating and persistent features of Canadian environmentalprotection laws is that they are pregnant with discretionary powers. In general, thismeans that administrative officials are given broad power and "the determination ofthe standards according to which power is to be exercised is left largely to them".2Consequently, much of the form, substance and enforcement of environmental lawsis determined by the occupying armies, the environmental regulators. As wasobserved in Chapter One, British Columbia's Waste Management Act (the "WMA")is a classic example of this situation. Section 8 of the WMA provides for the issuanceof waste permits by an official, the regional manager, "subject to requirements for theprotection of the environment that he considers advisable".31 George Hoberg, Pluralism By Design: Environmental Policy and the American Regulatoiy State,(New York: Praeger Publishers, 1992), at pg. 17, fn 2 therein (citing Earl Latham in "The Group Basisof Politics: Notes for a Theory" 46 American Political Science Review 376, at pg. 391).2 Galligan, supra, Chapter One fn 17, at pg. 1. The concept of discretionary powers will bediscussed in greater detail below.3 Supra, Chapter One fn 25. As previously noted, the WMA does not set out any criteria thatmust be met by the manager in this regard although subsections 8(1)(a)-(f) do enumerate some itemsthat the manager may include in the permit such as monitoring, the posting of security, conductingstudies, etc. This is particularly important to the scheme of pollution control laws in British Columbiasince the vast majority of legally binding environmental protection standards are determined through26Given the extensive nature of administrative activity and power inenvironmental law, any consideration of environmental law cannot be divorced fromthe larger context of administrative law. The term "administrative law" is used herein its broadest sense to mean that area of law that is concerned with the use of powerby public authorities.4 Although it is fair to say that environmental law has evolvedinto its own discrete field, it is helpful for the purposes of the analysis in this thesisto consider environmental law as a subset of administrative law. This is the task ofthis chapter -- to consider the phenomenon of discretionary powers in environmentallaw against the backdrop of administrative law and administrative realities. Thepurpose of this discussion is to develop an appreciation of the regulatory context inwhich environmental laws are administered. This analysis will set the stage for aconsideration of the role that science plays in this context, the subject of the nextchapter.This discussion begins by examining the nature of bureaucracy anddiscretionary powers in the machinery of modern government, which machinery willbe labelled "the administration". The term " the administration" will be usedthroughout this thesis to refer to the plurality of government entities comprising thepermit conditions. The other method of creating legally binding standards is through the use ofregulations, a tool used rarely under B.C.'s environmental statutes.4 See generally Dussault and Borgeat, supra, Chapter One fn 20, at pgs. 12-28 for a discussionof the definition and scope of this area of law. I adopt their view that administrative law extendsbeyond the notion of judicial review: "...this approach underestimates other parts of administrativelaw dealing with structures and acts of the Administration as well as the major management systemsupon which all administrative decision-making is based In its full dimension, administrative lawconsists essentially of two major functions: providing rules for the organization and internaloperations of the Administration and establishing relationships between the Administration and thepublic." (Mid, at pg. 28).27State's "administrative organs", ranging from Cabinet to governmental departments(or ministries) to consultative or adjudicative independent agencies or tribunals.5Bearing in mind that Canada is a federal system, this notion of the administration ismeant to encompass the structures of both the federal and provincial governmentsbased on the constitutional division of powers. This examination will be followed byan outline of the theoretical political, administrative and legal frameworks withinwhich discretion is situated and consider why it is viewed as anathema to thetraditional conception of parliamentary democracy. This theoretical framework isimportant because it reveals the underlying values that continue to shape ourinstitutions. Lastly, the nature of discretion as it is structured in environmental lawswill be examined together with the political dynamics that impact the admininistrative"realities" of environmental laws. This last section will focus on an examination oftraditional Canadian pollution control statutes as a model for understanding theimplications of discretion.B. The Age of Bureaucracy and the Nature of DiscretionNo matter what disciplinary perspective one brings to the study ofgovernments in North America today, whether it be as a political theorist, sociologist,public administrator or legal scholar, it is uncontroversially accepted that we live inthe era of the administrative state. An era in which the organization and operationof government is highly dependent on bureaucratic structures and the exercise of5^This understanding of "the administration" is developed by Dussault and Borgeat, supra, In4, at pgs. 43-47.28discretionary decision making powers by technocratic expertise. The administrationplays a predominant role in modern political, economic and social life; indeed, it hasbeen observed that "it constitutes the main reality of State power for the majority of[Canadian] citizens."6 This reality appears to fulfill the prediction made in 1918 byMax Weber, one of the earliest and most influential students of administrative theory,that "the future belongs to bureaucratization°. Indeed, as early as 1888 academicsin England were commenting on the increasing bureaucracy of the time:We are becoming a much governed nation, governed by all manner ofcouncils and boards and officers, central and local, high and low,exercising the powers which have been committed to them by modernstatutes.8Bureaucratization, or the delegation of decision making power to the administration,has become the norm in Canada:The Administration is now situated at the centre of collective life; ittranslates the choices expressed by those who govern into concreteacts. Through its constant and multifaceted activity, it regulates andtransforms the relationships existing between the authority of the Stateand society, and also amongst citizens themselves. In fact, very fewindividual or collective projects may now be advanced without theendorsement of one or another of its agencies.96^lbid, at pg. 9.7 Paehlke, supra, Chapter One fn 18, at pg. 24 (citing Max Weber in Economy and Society).For additional reading on Weber's examinations of bureaucratic organizations and a useful summaryof his theories and their place in modern ideology, see Galligan, supra, fn 2, at pgs. 117-128.8 Denys C. Holland and John P. McGowan, Delegated Legislation in Canada, (Toronto: TheCarswell Co. Ltd., 1989), at pg. 6 (citing Maitland's text, Constitutional History).9^Dussault and Borgeat, supra, fn 4, at pg. 3.29Despite the many complaints and criticisms against sprawling bureaucracy andoverregulation, it is reluctantly acknowledged that this modus operandi of governmentis here to stay. For example, in its study on the powers of independent administrativeagencies, the Law Reform Commission of Canada (the "LRCC") makes the followingintroductory comment: "And while we do not seek either to legitimize or questionany role they presently play, we are confident that they will remain for some time animportant aspect of modern government".1° Another commentator observes:We have a modern administrative state that cannot be dismantled ordenied. And it is not merely a minimalist state, with proportionsirreducible in light of modern life's countless opportunities for savagery.It is, rather, the ambitious state constructed as an instrument forcommon purposes.11Why is it that bureaucracy with its accompanying delegation of discretionarypowers has come to play such a crucial role in how we govern ourselves? One of themain reasons is the ever increasing complexity of the issues that legislatures must dealwith. These complexities have increased with the expanded role of the modernwelfare State. Government today has become the fixer of social dysfunction:in this role, the State limits abuses (legislation on labour, environmentand consumers), attempts to rectify inequalities among citizens (variouskinds of insurance, social assistance and allowances), and proceeds tocreate physical infrastructures (transportation, energy andcommunication) or social infrastructures (education, health and10 Law Reform Commission of Canada, Report on Independent Administrative Agencies: AFramework for Decision Making (Report 26), (Ottawa: Law Reform Commission of Canada, 1985),at pg. 5.ii Christopher F. Edley, Jr., Administrative Law: Rethinking Judicial Control of the Bureaucracy,(New Haven: Yale University Press, 1990), at pg. ix.30recreation).12The complexities that accompany these concerns, the inherent resource limitationsof legislatures and the flexibility needed to deal with individual situations andchanging circumstances, all encourage delegation to subordinate bodies to allow thedevelopment of specialized policies and strategies. These subordinate bodies can bedepartments within the government or they can take the form of independentadministrative agencies, such as labour relation boards or utilities commissions.Independent administrative agencies, in particular, have a special attraction forgovernments trying to cope with their growing involvement in social and economicregulation. The LRCC attributes the creation of these agencies to:the desire to divert the responsibility for the resolution of politicallysensitive issues to discrete, non-partisan governmental bodies; the needfor specialization and expertise to manage progressively more complexgovernmental tasks; the perceived inability of a then partisan, non-professional civil service to perform such tasks; and a reluctance tobog down courts in matters that, because of their nature or theirvolume, were not suited to the judicial process.13A good example of the use of an independent agency in British Columbia toaddress the problematics of environmental conflicts can be seen in the government'sestablishment in 1992 of "CORE", the Commissioner on Resources and theEnvironment. The legislation creating the office of the Commissioner states that hisrole is to "advise the Executive Council in an independent manner on land use and12 Dussault and Borgeat, supra, fn 4, at pg. 7 fn 12 (citing L. Borgeat, R. Dussault and L.Ouellet, l'administration quebecoise: organization et fonctionnement, 1982).13 LRCC, supra, fn 10, at pg. 5.3 1related resource and environmental issues in British Columbia and on the need forlegislation, policies and practices respecting these issues."14Although policy complexities and concerns for allocative efficiencies are realand valid reasons for delegation in modern government (whether it be togovernmental departments or to independent agencies), these reasons only explainpart of the story. As alluded to by the LRCC in the above quotation, politics alsoplays a factor. Laws are often the product of political compromise. With respect toenvironmental laws, it has been said that this results in laws that contain "sweeping,politically attractive but administratively impractical statements about environmentalprotection, and then leaves the tough decisions to the bureaucrats and courts."15The point that environmental laws are designed to deflect the "tough decisions" to thebureaucracy is a key one and should be kept in mind throughout this discussion.Whether the delegation to specialized bureaucracies is considered a self-evident need arising from the complexities of modern government or, perhaps, morecynically, is seen as political "buck passing", the granting of discretion to theadministration is more often than not viewed with skepticism. It is considered a"necessary evil" in democratic societies. However, prior to discussing the theoreticaldilemmas posed by administrative discretion, it is necessary to expand on what ismeant by the concept of discretion, with a particular understanding of its parametersin the environmental regulatory context.14 Commissioner on Resources and Environment Act, S.B.C. 1992, c. 34, s. 3.15 Webb, supra, Chapter One In 1, at pgs. 49-50.32Discretion, as one scholar has aptly explained, "may be best defined as thepower to make a decision that cannot be determined to be right or wrong in anyobjective way."16 More particularly, discretion in the administrative law sense meansa delegation of authority from the legislature to the administration in order to makedecisions or regulations to achieve general statutory objectives.17 By its nature then,this delegation requires the transfer of powers of a legislative nature to theadministration; that is, the authority to make laws. This can be done by grantingpowers to make regulations pursuant to a statutory enabling clause or by grantingpowers to adjudicate disputes akin to a court, often referred to as "quasi-judicial"powers. As an aside, it should be noted that this description of legislative, or rule-makin 18g , powers is somewhat oversimplified for the purposes of this discussion.In administrative law, certain consequences will arise based on the classification ofdelegated powers as either "legislative", "administrative" or "judicial". In general, ifa power is considered "administrative" in the sense that it "is really nothing more thana legislative acknowledgement of the right to make....managerial rules necessary for16 J. H. Grey, "Discretion in Administrative Law", 17 Osgoode Hall Law Journal 107 (1979), atpg. 107.17 For this reason, as Galligan points out, each grant of discretion must be examined separatelyin order to ascertain its own peculiar characteristics. Nonetheless, on a more general level, there arerecurring features of discretionary authority that can be identified. The intent of the followinganalysis is simply to highlight these recurring features. A more detailed analysis of discretion in thecontext of environmental laws follows in Part D of this chapter.18 In this discussion, the term "rule-making" will be used to denote the power to make law underdelegated legislation; this is contrasted with the non-hyphenated version of the term "rulemaking"used elsewhere in this thesis to describe the American administrative process of regulation making.33the efficient operation of an organization"19, it will not be legally binding nor subjectto judicial review whereas a "legislative" power will be. Similarly, if a power isconsidered to be 'judicial" versus "legislative", then the common law rules of naturaljustice, such as the duty to hold a hearing, will apply. These classifications havecaused much confusion in the case law and are as malleable as the imagination of acreative lawyer: "the terms are inherently ambiguous, capable of ostensibly describingeither the nature of the power, or the manner in which it is to be exercised, orperhaps both."2° It is beyond the scope of this discussion to do more than alert thereader to the fact that these labels import a certain legal significance. For thepresent purposes, the key concept to the analysis is that delegation turns on thenature of the product authorized by statute: "if the making of rules has beenauthorized, then the power to make delegated legislation has been conferred".21Given that the focus of this thesis is on standard setting powers in pollution controllaws, this complication is not a major concern. These powers, either through theissuance of permits or regulations, are clearly powers to make binding law throughdelegation.As noted above, discretionary delegation is a function of the modern welfareState in which concern for the collective good is an explicit theme. This model of19 Holland and McGowan, supra, In 8, at pg. 108.20 Ibid, at pg. 102. For an analysis of the confusion in the jurisprudence as a result of theterminology, See Holland and McGowan, supra, fn 8, at pgs. 102-114 and Grey, supra, In 16.21 lbid, at pg. 114. This functional approach is also recommended by Professor Grey, supra, fn16.34legal authority has been called the "public law model":...the predominant concern is with the achievement of policy goals,whether of public order or social welfare, and thus private rights andinterests are subordinate to notions of public interest. But whatconstitutes public interest is likely to depend partly on the way politicalactivity at the broadest level is translated into legislative standards, andpartly on the more precise working-out of those standards in the courseof discretionary assessment by administrative officials.22These "public interest" activities are broad ranging and varied and most involve someform of policy making.23 Protection of the "public interest" lies at the heart of manyenvironmental laws.One of the most analytically penetrating examinations of administrativediscretion from a legal perspective is D. J. Galligan's book, Discretionag Powers.24At the outset of Galligan's discussion he notes that according to its etymologicalorigins, the idea of discretion is good judgment. This is ironic given the reflexivetendency of the law to treat discretion as imbued with arbitrariness or other not so"good" qualities. In describing the nature of discretion, Galligan points out that itinvolves two principal variables: (1) the scope for personal assessments in the courseof a decision; and (2) the nature of the institutional arrangements or the "internal22 Galligan, supra, fn 2, at pg. 88. Galligan contrasts this model with the "private law model"which is "based around a firm separation of powers, both in terms of functions and institutions, withthe definition and protection of private rights at the centre of the stage." (lbid, at pgs. 87-88).23 This is certainly true with respect to the functions of independent administrative agencies.See, for example, LRCC, supra, at pg. 6. However, the same can be said of governmentaldepartments. Enviromental laws are fraught with policy making at the administrative level.24 Supra, fn 2. The following discussion draws heavily on Galligan's perceptive analysis regardingthe nature of administrative discretion, at pgs. 8-14. This is a cursory examination of the ideas thatGalligan develops more fully in chapters 3 and 4 of his book.35point of view"25 .Since discretion by definition emanates from statute, the statute is of keyimportance to the first variable, the scope for personal assessments. An official'spersonal assessment can be viewed as involving three decision elements: findingfacts, settling standards and applying the standards to the facts. There can bepersonal assessments, or discretion, within each of these elements depending on thestatutory mandate; that is, the extent of discretion will depend on the absence orrelative absence of binding standards. The extent of discretion, or its functionalcontext, can be characterized along a continuum depending on the relevant enablingstatute. At one end of the spectrum, a statutory framework can exist for the decisionmaker by outlining broad objectives and little guidance as to how to exercisediscretion. In such a framework, the administrative task may require the creation ofstandards where none exist or the interpretation of given standards in order to applythem.26 Again, section 8 of B.C.'s WMA, mentioned at the outset of this chapter,is a good illustration of this bare-bones statutory approach. Recall that the regionalmanager's task is to issue waste permits for the protection of the environment "as heconsiders advisable". 27 How does he do this? Essentially, this section createspersonal assessment in the finding of facts, the settling of standards and interpretingthem on an individual case by case basis. This type of statutory framework can be25 Ibid, at pg. 12. This "internal point of view" refers specifically to the attitudes and strategiesdeveloped by officials to approach their tasks.26 Ibid, at pg. 11.27 Supra, fn 3.36contrasted with statutory delegations of "mandatory powers" which are very preciseand detailed and leave the decision maker no latitude.28 One writer observes:If regulations extend only to details of mechanical procedures, no realdiscretionary powers are delegated. However, where the statutoryprovisions are only a skeleton and it is left to regulations to say 'what,where, when, why, how and who', then we have created meaningfuldiscretionary powers...29It is this latter kind of discretion that is most prevalent in Canadianenvironmental laws. In the 1980's, a Law Reform Commission of Canada studycommented as follows on the legislative framework of Canadian environmental laws:"Rarely, if ever, does legislation specify in any detail the criteria which are to governthe development of regulations, nor does it set out timetables for achieving particularsets of objectives."30 Reference has already been made to section 8 of the WMAwhich adopts this approach. With respect to Quebec's Environment Quality Act, ithas been observed that the powers it grants to the administration and the restrictionsit imposes upon business are of "a scope without precedent in Quebec."31 Anothercommentator observes that Alberta's environmental assessment law contains no fewer28 Dussault and Borgeat, supra, fn 4, at pg. 240. These powers may also be labelled "ministerialpowers" in administrative law, but as Professor Grey points out this term is not consistently appliedand thus the label "leads to confusion and should be eschewed." (Grey, supra, fn 16, at pg. 113).29 William T. Stanbury, Business-Government Relations in Canada: Influencing Public Policy,(Scarborough: Nelson Canada, A Division of Thomson Canada Limited, 1993), at pg. 73 (citing EricHehner in "Growth of Discretion - Decline in Accountability" in Kenneth Kernaghan, ed., PublicAdministration in Canada: Selected Readings, 5th edition, at pg. 342)." Schrecker, supra, Chapter One fn 23, at pg. 10. This comment is made with respect toenvironmental "hazard" laws which generally means pollution control laws, occupational health andsafety laws, and hazardous consumer products laws. (lbid, at pg. 5).31 Dussault and Borgeat, supra, fn 4, at pg. 34.37than three layers of discretion and thus as enforceable legislation it is "virtuallymeaningless".32Although it is arguable that recent provincial and federal environmentallegislative initiatives evidence a greater trend to specifying applicable environmentalgoals and criteria33, it remains true that the vast majority of Canadianenvironmental laws are startingly vague as to the substantive criteria against whichfinal administrative decisions can be judged. In general, the Canadian approachsharply contrasts with U.S. environmental laws which impose substantiveenvironmental limits on an agency's decision -- such as enshrining protection ofhealth, protecting species from extinction or ensuring sustained yield of timber.34Institutional arrangements, and in particular the attitudes that officials havetowards the exercise of their power, are also important in shaping an official's senseof discretion. Influences such as individual or institutional attitudes aboutdiscretionary powers and the constitutional and political order within which an officialoperates can create patterns as to how powers are exercised and the justifications for32 Stewart A. G. Elgie, "Environmental Groups and the Courts: 1970-1992", in G. Thompsonet.al., eds., Environmental Law and Business in Canada, (Toronto: Canada Law Book, 1993), at pg.193. The relevant section of the Alberta Land Surface Conservation and Reclamation Act cited byElgie reads as follows: "When any person proposes to undertake any operation or activity and, in theopinion of the Minister the operation or activity will result or is likely to result in surface disturbance,the Minister may order the person to prepare and submit to the Minister in the time prescribed inthe order, a report containing an assessment of the environmental impact of the proposed operationor activity if the Minister considers it in the public interest to do so". (mid).' See, for example, the Canadian Environmental Assessment Act, S.C. 1992, c. 37; theCommissioner on Resources and Environment Act, S.B.C. 1992, c. 34; and Alberta's EnvironmentalProtection and Enhancement Act, S.A. 23, 1992, c. E-13.3.34 Elgie, supra, fn 32, at pg. 193. The more detailed expression of environmental objectives, andthe implications thereof, will be evident in the discussion of the U.S. Clean Air Act in Chapter Four.38decisions. The political dynamics in the environmental area are particularlyimportant and will be considered in greater detail below.Institutional arrangements may also dictate the administrative practise of agovernment body. For example, to administer their statutory mandate, a departmentmay decide to formulate comprehensive standards for the guidance of administratorsand officials may well regard these standards as binding. This can occur despite ahighly discretionary grant of power in the enabling legislation. As Galligan notes:"What may be discretionary from an external, legal point of view, may be anythingbut discretionary from the internal point of view of officials within the system."35This comment is particularly relevant in the Canadian context because so manyadministrative actions by environmental regulators flow from internally generated, yetinaccessible, policies. Although these policies are generally not legally enforceable,they do have very real implications for those who must deal with an administrator.Galligan concludes: "It is only when there is a significant freedom of choicein the officials, and when that choice is recognized and respected by the courts orother authoritative body, that we may talk of a reasonably discrete notion ofdiscretionary power."36 It is this two-pronged sense of discretion that is trulyreflective of the nature of discretion granted to Canadian environmental regulators.In summary, this discussion has noted the following recurring features ofdiscretionary powers as they pertain to environmental laws:35 Galligan, supra, fn 2, at pg. 13.36 Ibid, at pg. 14.39• discretion exists when there is a delegation of rule-making authority from the legislature to theadministration;• the legal foundation for this authority is based in statuteand thus the statute determines the functional context ofdiscretion - in environmental legislation, the typicalpattern is one of very limited statutory guidance as tohow to achieve the legislated mandate; and• discretion often applies to the pursuit of that nebulousconcept, the "public interest", and as a result it isinherently subjective in the sense that there is no "rightanswer";^institutional arrangements and politicaldynamics become particularly important to shapingdiscretion in this milieu.These features pose some recurring problems for the operation of moderndemocracies. Why? To understand this, the theoretical framework of our political,administrative and legal structures must be considered. This theoretical frameworkreveals the underlying values that shape our political culture. These values in turnhelp to assess the role of the bureaucracy and the role of the law in moderngovernance.C. The Theoretical Framework -- The Political, Administrative and LegalContextsAlthough discretionary powers are accepted as a functional necessity in themodern state, they are, as noted above, typically characterized as a "necessaryevil"37: "necessary" in order to accomodate legislative inabilities to deal with the37 For example, Galligan makes the following observation about discretionary powers: "....theattitude so often is encountered that, while its presence may be inevitable, it is at the same timeslightly deviant." (Ibid, at pg. 1) [emphasis added]. Other writers also discuss the "dilemma" thatdiscretion poses for constitutional or parliamentary democracies. See Paehlke, supra, fn 7; James R.Bowers, Regulating the Regulators: An Introduction to the Legislative Oversight of Administrative40complexities and variabilities inherent in modern societies and "evil" because of thethreat posed to democratic ideals. This characterization of discretion is part of thegospel in administrative law. In order to understand why this is so, the foundationsand evolution of our political, administrative and legal structures must be explored.However, it should be noted that there is an increasing trend in both publicadministration and law to accept discretion as a good thing and to reject the view thatit is as an inherently bad aspect of an otherwise sound system.38 I am persuadedby this more open understanding of discretion and view the law as needing to adaptto this reality.The broad delegation of discretionary powers often associated with the publiclaw model is perceived to conflict with two fundamental theoretical principles ofparliamentary democracy: (1) accountability via representative government; and (2)legality or the "rule of law".Canadian parliamentary democracy is a system of responsible governmentwhere executive functions are performed by ministers who must answer to Parliament(or the provincial legislature, as the case may be) for their actions. Accountabilityis the essence of this model of responsible or representative government -- that thoseRulemaking, (New York: Praeger Publishers, 1990); and Dussault and Borgeat, supra, fn 4.38 For example, Galligan does not see discretionary powers as an undesirable deviation from anideal of government through rules: "It will be argued that discretionary powers are important in anysystem of authority, that there are good reasons for having discretion, and that discretionary powersare neither necessarily nor typically in some way arbitrary and beyond the law far from legal rulesand standards being its antithesis, they are always present in constituting, defining and constrainingdiscretion." (Tbid, at pgs. 2-3). See also, Edley, supra, fn 11, preface to text.41who are to be governed choose those who will do the actual governing.39 Thisaccountability gives the government legitimacy. If there is dissatisfaction with whatthe government is doing then, so the argument goes, the answer is at the polls.However, the delegation of broad discretionary authority to unelected administrativeofficials or agencies violates this accountability link between the public and thepoliticians. For this reason, particularly with respect to the delegation of powers toindependent agencies, "some have perceived it as the last blow to parliamentarydemocracy and as foreshadowing Government by decree".40On a theoretical level, this concern emanates from the classical notion of theseparation of powers between the legislative, executive and judicial branches. Unlikethe American constitutional system, this tripartite division of powers was not strictlyadhered to in the establishment of the Canadian constitition. Our constitution doesnot exclusively allocate the three functions of government to three distinct organs:"There is no general 'separation of powers' in the Constitution Act, 1867. The Actdoes not separate the legislative, executive and judicial functions and insist that eachbranch of government exercise only "its own" function."41 In particular, ourparliamentary structure permits an overlap of authority between the executive andthe legislature. Nonetheless, there is a strong notional separation of powers with39 Bowers, supra, fn 37, at pg. 10.40 LRCC, supra, fn 10, at pg. 17. This is, as the LRCC admits, a rather antiquated view of theimplications of delegation given the complexities of modern government.41 Peter W. Hogg, Constitutional Law of Canada, Second Edition, (Toronto: The CarswellCompany Limited, 1985), at pg. 150.42respect to the functions of the executive branch and the administration.Theoretically, it is the domain of the executive to have "political" rule-making powerand it is the responsibility of the administration to apply and enforce these rules,under the watchful eye of the judiciary. However, in practise, it has been observedthat this theoretical dichotomy is unrealistic since the activities of political/legislativerule-making and administrative rule-application "overlap to such a degree that thedistinction between the two becomes purely formal, from the point of view ofadministrative law."42 To further understand how accountability has beenattenuated to this degree in Canada today, it is necessary to consider the basicorganization and dynamics of regulatory bureaucracies. The next section of thisdiscussion will focus on some of the fundamentals of the organization ofgovernmental departments and the complexities of policy formulation in order toelaborate on the general "realities" of administrative decision making. The focus ison governmental departments because the vast majority of Canadian environmentallaws are administered by specialized departments or ministries rather thanindependent agencies.In the overall structure of government, departments or ministries43 play aprominent role. "They constitute an essential source of technical competence in themodern administration" and are the "principal delivery arm of government". 44 The42 Dussault and Borgeat, supra, fn 4, at pg. 52.43 The terms "department" and "ministry" are used interchangeably in this discussion.44 Dussault and Borgeat, supra, fn 4, at pg. 83.43legislative delegation of complex schemes for administering policy is typically doneusing the vehicle of specialty departments. For example, some obvious departmentsin the environmental area are Environment Canada at the federal level and the B.C.Ministry of Environmnent, Land and Parks (the "BC MOE") at the provincial level.Each of these governmental institutions, along with other specialized andcomplementary departments or ministries (such as the Department of Fisheries andOceans, federally, or the Ministry of Forests, provincially) play a crucial role indeveloping and implementing environmental laws and policies in Canada.Under our system of responsible government, ministries are subject to thedirection and management of the Minister. The Minister is given his power pursuantto enabling legislation.45 Accordingly, the first place to look in order to determinethe degree of autonomy of any given Ministry and the controls it is subject to, is therelevant legislation. For example, section 2 of B.C.'s Environment Management Actstates that the "duties, powers and functions" of the provincial Minister ofEnvironment "extend to all matters relating to the management, protection andenhancement of the environment" and then includes a specific list of the types ofmatters this encompasses; for example, the "preparation and publication of policies,strategies, objectives and standards for the protection and management of theenvironment".46 In theory, at least, the departmental structure is consistent with thedemocratic interest of accountability because the Minister is answerable to both' The enabling legislation always confers powers on the Minister. See Dussault and Borgeat,supra, fn 4, at pg. 85.46 Environment Managemnent Act, supra, Chapter One fn 22.44Parliament and public opinion for the management of his Ministry.Although power is vested directly in the Minister, in practise, he relies heavilyon his staff to address the formulation, drafting and implementation of Ministrypolicy. This should not be surprising given the nature of delegated tasks and thelimited experience of Ministers in their portfolios. Accordingly, although thelegislative framework outlines the powers of a given Minister and his ministry, theadministrative organization and hierarchical structure of the ministry must also beconsidered to understand the operational complexities and division of labour. Beforeexamining the hierarchy, one key point must be made. The Minister is a member ofCabinet and Cabinet is, of course, one of the defining features of the Westminstermodel of parliamentary government. In this system, there are few bodies within theexecutive (or the legislature) able to act independently of the Cabinet: "Thus thereis no body able either to constrain the behaviour of Cabinet, nor to provideinformation to the public about either the quality of Cabinet decision making or theperformance of its policies."47Usually, a government ministry or department has three levels.48 The firstlevel has already been mentioned, it is the political one occupied by the Minister. Byits nature this position is subject to the winds of political change. Secondly, there isthe administrative head, the Deputy Minister (the "DM"). This is typically apermanent position and his role is to provide a link between political change and47 Stanbury, supra, Chapter One fn 6, at pg. 92.48 The following discussion with respect to the three levels of governmental departments isadopted from Dussault and Borgeat, supra, fn 4, at pg. 89.45public service continuity. The description of the DM as an "administrative head" isnot meant to underestimate the power and influence of this position. The DM is theprincipal policy advisor to the Minister and thus must be carefully attuned tochanging political considerations: "the role of Deputy Minister demands awarenessof both public acceptability in the general sense and consideration of the philosophicand political direction of the government he serves."49 Lastly, there is theadministrative layer subdivided into various divisions and services to reflect the dutiesundertaken within the administrative apparatus. For example, simply glancing at thelistings in the B.C. provincial phonebook gives one a sense of the wide division oftasks that exist at the B.C. MOE.It is this dispersion of responsibility that raises the concern for a loss ofaccountability in the system and this concern is one of the main forces stimulatingpolitical and legal reform in modern bureaucracies. For example, many of the reformefforts over the last two decades to improve regulation making in Canada at thefederal level have been driven by the concern to tighten executive accountabilitythrough improved processes. These are processes that focus on making the analyticalbasis of decisions more transparent and on centralizing control and information.Professor Stanbury, who has completed a comprehensive examination and evaluationof the federal government's regulatory reform efforts, notes: "Most of the processreforms in Canada have consisted of efforts to improve the quality of new regulations,largely by means of requiring more/better analysis to assist decision makers in" Ibid, at pg. 90 (quoting a comment made by A. Blakeney, former Premier of Saskatchewan).46departments and the Cabinet."50 For example, these efforts have included morecentralized oversight of the regulation-making process aimed at improvingeffectiveness through the use of Regulatory Impact Analysis Statements, adherenceto the policy document entitled "The Citizen's Code of Regulatory Fairness", and there-evaluation of regulatory programs every seven years. These efforts have alsoincluded increased public participation through modified notice and commentprocedures (eg. the advance publication of proposed regulations in the CanadaGazette, the use of a regulatory calendar or agenda and more stakeholderconsultations).51 Reform efforts at the provincial level have not been ascomprehensive. For example, in British Columbia, provision for public notice andconsultation is at the discretion of the originating minister.52Discretion not only challenges notions of political accountability, it is alsocontradictory to principles of legality or the "rule of law". The rule of law is aconcept which has special importance in the western ideology of law. 53 It is the"mortar that holds the edifice of the State together".54 The rule of law is a ratherelusive concept. The Supreme Court of Canada has expressed the rule of law asfollows: "The 'rule of law' is a highly textured expression...conveying, for example,50 Stanbury, supra, fn 47, at pg. 14.51 See Stanbury, supra, fn 47, for a more comprehensive history and discussion of these matters.52 Treasury Board Secretariat, Administrative Policy Branch, Regulatory Affairs, "How RegulatorsRegulate: A Guide to Regulatory Processes in Canada", at pg. 7.53 Galligan, supra, fn 2, at pg. 61.54 Gregory Tardi, The Legal Framework of Government: A Canadian Guide, (Aurora: CanadaLaw Book Inc., 1992), at pg. 19.47a sense of orderliness, of subjection to known legal rules and of executiveaccountability to legal authority".55 It essentially means that State power is to beexercised "according to binding general rules made and known in advance, and ofsufficient specificity to allow individuals to know with tolerable certainty their rights,obligations, and liabilities".56 With respect to the administration, this means that theadministration is subject to both the legislative acts of parliament and to the courtswhich are responsible for enforcing and interpreting the law. Again, the theory of theseparation of powers is a central tenet of this principle: "The powers of officials areto be closely circumscribed by rules, which are to be adjudicated by courts, which inturn are themselves in the main separate from and independent of the legislative andexecutive branches."57 Implicit in this concept is the idea of certainty as stated inlegal rules which establish the authority of both parliamentarians and publicadministrators.The hybrid nature of discretion, involving both legislative policymakingfunctions and adjudication, threatens this model of functional separation and rulecertainty upon which the rule of law is based. Again, the underlying notions are ofkey importance. In order to maintain political legitimacy, those who exercise powermust do so within the constraints of pre-determined fixed rules, the law.This theoretical discussion has highlighted two themes of importance in55 Dussault and Borgeat, supra, fn 4, at pg. 231 (citing the Court's decision in Reference reResolution to Amend the Constitution, [1981] 1 S.C.R. 753 at 805-806).56 Galligan, supra, fn 2, at pg. 61.57 Mid, at pg. 6.48Canadian democracy: (1) political accountability; and (2) legality/certainty throughthe legal prescription of authority. A consideration of the underlying political valuesrepresented by these themes is central to a legal perspective and understanding ofdiscretionary powers. Our legal principles and institutions are part of the politicaland social composition of society and are instrumental to upholding these underlyingvalues. The themes of accountability and legality can be further divided intoadditional concepts that reflect the values inherent in Canadian society: stability inlegal relations, rational decision making, fair procedures and political morality.58In other words, a decision should be arrived at for known and good reasons, it shouldmeet the underlying policy objectives of the governing statute and it should do all ofthis in a fair manner that opens it to external public scrutiny. Ultimately, these ideasprevent decision making by "whim, caprice, chance, or ritual."59 The catalogue ofvalues identified by the LRCC in its study on Independent Administrative Agencies isconsistent with these notions. The LRCC's list is reproduced in full in Exhibit 1below.58 These four categories are developed by Galligan, 'bid, at pg. 90 wherein he states that a"reflection on the political theories that underlie modern, democratic, liberal societies would tend tosuggest" that these principles "have a position of importance".59 Ibid, at pg. 6.EXHIBIT I -- LIST OF CANADIAN DEMOCRATIC VALUES°Accountability: Having to answer for the exercise of whatis essentially governmental authority to affect public and privateinterests. The rule of law demands that governmental authority not beexercised arbitrarily, and that agencies account, sometimes within apolitical framework, sometimes within a legal one, and often withinboth, for the decisions they make and for the policies they pursue asdecision makers.Authoritativeness: Making decisions that are accorded fullrecognition. Where authority is ostensibly given to an agency to decidea matter, those who deal with the agency are entitled to have thedecision made by the agency, not by a politician, judge or otherdecision maker.Comprehensibility: Making the administrative process asunderstandable as possible to those whom it affects. Interested personsmust know whom to address, about what matters, and how to addressthem.Effectiveness, Economy and Efficiency: "Getting the job done"without wasting human and material resources. Administration can bea drain on both public and private resources. It demands constantattentiveness to new and better ways of doing things.Fairness: According appropriate recognition to the interests thatmay be affected by agency decisions. Without fairness there will beneither the trust and credibility that lend integrity to a process, nor theco-operation that is essential if it is to be efficient.Integrity: Operating in a manner that is true to the objectives laiddown for the agency; having a full commitment to its purposes. Anagency must be sufficiently free of background pressures to projectcompetence and confidence in carrying out its duties. Theadministrative process needs both the self-respect of the agencies andthe respect of those with whom they deal.60 These values are taken from the LRCC, supra, In 10, at pgs. 8 -9.4950Openness: Making the administrative process accessible to those itaffects, and providing a window through which it can be seen. Theremust be openness if other values are to be adequately realized. Forinstance, those who are affected by decisions look to openness as afurther guarantee of fairness and accountability.Principled Decision Making: Rationally correlating the information theagency has, the interests of which it is aware, and the objectives,policies and criteria that are to guide its decisions.Although the foregoing list was developed to provide a framework forappropriate procedures to guide independent agencies, the values identified can betaken to represent Canadian democratic ideals. The LRCC developed the list "basedon a mixture of socio-legal values drawn from Canadian political traditions andaspirations, contemporary approaches to public administration, existing doctrines ofadministrative law, and constitutional tenets." 61 These values, at least in part,animate the structures and operation of government and the role that law plays inthe exercise of administrative discretion.The political and legal frameworks of the Canadian and American democraticsystems attempt to create structures and processes that give these ideals somesubstance while attempting to balance the demands for certainty with the needs forregulatory flexibility. From an administrative law perspective, one of the commonlegal strategies that is advanced in order to keep discretion to a minimum is to61^Ibid, at pg. 8.51institute pre-determined fixed and certain rules.62 These rules may be in the formof clearer guidance from the legislature. In addition, procedural rules (such as theCanadian principles of natural justice or procedural fairness or, in America, notice-and-comment rulemaking) have developed as a way of checking the exercise ofdiscretion. Despite these efforts, criticisms prevail that these rules miss the mark ofobtaining rationality, purposiveness or morality. Common criticisms directed againstenvironmental regulators from all perspectives include accusations about thearbitrariness of decisions (for example, that they lack foundation in science); thepoliticization and thus unfairness of the process; and a lack of concern for economicor environmental consequences, depending on one's perspective.D. Discretion and Environmental LawsThe purpose of this section is to provide a more thorough understanding ofdiscretionary powers as they exist in environmental laws. As previously noted, thelabel "environmental law" is a broad descriptive umbrella that covers a wide varietyof common law doctrines and statutes which impact on the conservation andprotection of the natural environment. For the purposes of this analysis, the focuswill be on traditional "command and control" legislation; that is, those statutes thatestablish fairly comprehensive pollution control regimes and which will undoubtedlyremain an important aspect of the Canadian regulatory approach for some time. In1988, the LRCC conducted an examination of the command and control regulatory' Galligan, supra, fn 2, at pg. 1.52framework and concluded: "significant components of the legal framework foreffective pollution control are now in place."63 In British Columbia, the WasteManagement Act is the centrepiece of regulatory activity and it appears that itscontrol approach will continue to be the foundation for environmental law in B.C.The proposed British Columbia Environmental Protection Act, a more comprehensivestatutory model, is being designed around the WMA64. In addition, in order tounderstand the nature of discretion in these regulatory schemes one must considerthe variety of forces, including important extra-legal forces, that dictate the behaviourof government departments. In this discussion, these laws will be discussed from thefollowing interrelated thematic perspectives: the legislative mandate and the politicaldynamics.By the mid-seventies, virtually all federal and provincial jurisdictions hadpassed command and control regulatory legislation dealing with air, water and landpollution. These environmental statutes represent the first true efforts atcomprehensive environmental control in Canada.65In general, the design of these laws was to "command" those subject to the63 Webb, supra, In 15, at pg. 8.64 See the B.C. MOE discussion paper, supra, Chapter One fn 14.65 Professor Alastair R. Lucas describes these laws as the "first generation" of environmentalstatutes and notes that they arose from a recognition by government that common law doctrines forthe resolution of private disputes and the existing public health laws and miscellaneous provisions innatural resource development statutes "were not equal to the task of comprehensive environmentalcontrol". See A. Lucas, "The New Environmental Law" in E. Hughes, A. Lucas and W. Tilleman, eds.,Environmental Law and Policy, Volume I, Preliminary Edition, (Toronto: Emond MontgomeryPublications Limited, 1992), at pg. 4:1. For a more thorough discussion of the historical roots ofpollution control laws in Canada, see Webb, supra, In 15, at pgs. 11-15 and MacDonald, supra,Chapter One In 8, at pgs. 135-142.53law, by threat of penalty, to "control" the amount of pollution escaping into theenvironment as dictated by the statute. Although there is no uniform legislativemodel adopted by all Canadian jurisdictions, there are representative characteristicsfound in most of these laws. The essential means of control is through administrativetools, such as:(a) standards which define how much pollution is permitted;(b) administrative systems of permits or licences intended tocontrol pollution before it occurs;(c) administrative powers to require clean-up after pollutionhas occurred and/or clean-up obligations; and(d) requirements to provide information, eg. through supplymonitoring data or by submitting to inspections and spillreporting.66This overall statutory framework, with its heavy reliance on administrativetools, has meant that these schemes are dependent on the bureaucracy forimplementation. For the most part, this has meant administration by specializedenvironment departments, that are largely technical agencies, "staffed by the scientificand engineering experts necessary to implement the permit schemes and develop"safe" standards for waste discharge."67 In effect, these laws require the "routine useof administrative judgment in determining the significance of pollution impacts."68Consequently, this reliance on the administration has driven decision-making66 Dianne Saxe, Environmental Offences: Corporate Responsibility and Executive Liability,(Aurora: Canada Law Book, 1990), at pg. 55.67 Lucas, supra, fn 65, at pg. 4:2.68 Schrecker, supra, Chapter One fn 23, at pg. 11.54processes underground to the less visible world of regulation and license-negotiating.69 As previously noted, this state of affairs is no longer consideredtolerable and certain changes have been made, and continue to be proposed, toaddress the lack of participation and integrity that this underground administrationcreates.Another defining aspect of the discretionary scope of Canadian environmentallaws is the limited role that the courts have played in overseeing the exercise ofadministrative discretion. Although this reality may be attributed to many factors79,it seems clear that one of the basic reasons is the nature of the legislation itself:Administrative suits, by definition, challenge government authoritieswho fail to follow their statutory duties. It is axiomatic to add that ifstatutes impose very few requirements on administrative decision-makers, there will be few opportunities for administrative actions.Such has been the case in Canada.71This is not to say that administrative law principles exert no influence on theexercise of discretion by environmental regulators. The guiding tenets of Canadianadministrative law are applicable to administrative decisions under environmental69 Webb, supra, fn 15, at pg. 15." One obvious factor might be the prohibitive costs of litigation especially in light of judicialdeference to administrative decision-makers with expertise. A comprehensive canvass of judicialreview of environmental administrative actions, from a public interest advocacy perspective, can befound in Elgie, supra, fn 32. Elgie attributes the limited role of the Canadian courts (at least priorto 1987) to: the standing problem; the lack of judicial sympathy to environmental issues; unfamiliaritywith the public interest component of environmental suits in the context of administrative law whichtraditionally concerns itself with protecting the individual from the overeaching arm of government;and the limiting nature of the statutory language (as noted in the text above). After 1987, Elgie notesan improvement in most areas with the exception of the substance of the statutory powers. (mid, pg.205).71^Elgie, supra, fn 32, at pg. 11.55laws. Accordingly, judicial oversight of decisions may be available on the basis of thetraditional concepts of: (1) procedural fairness; and (2) substantive challengesconcerning the scope and content of decisions or the jurisdiction of environmentaldecision makers. Nonetheless, based on the vagueness and non-mandatory natureof command and control laws, these traditional avenues for judicial review posesignificant hurdles.72 Given the lack of case law in this area, it is difficult to gageexactly what the judicial influence is. Arguably, it is minimal. It is fair to concludethat in Canada the courts provide a limited institutional check on the exercise ofenvironmental administrative discretion and that this lack of judicial presence clearlyenhances the power of the regulators.Despite the promise of these environmental laws, in practise, theirimplementation has proven difficult. What accounts for this "implementationgap"?73 Again, the legislative mandate is partly to blame. The sweeping and vaguepronouncements in environmental laws give little credence to the importance ofoperational realities:Pollution control legislation is typically drafted in language whichsuggests that implementation is a straightforward, almost mechanicalprocess, when in fact government officials are attempting to cope withunstated unresolved scientific, political, technical and economicfa ct ors.7472 For a good example of the difficulties of showing that a Minister's discretion is not"reasonable", see Re Reese et. al. v. The Queen in right of Alberta (1992), 87 D.L.R. (4th) 1, a caseseeking judicial review of a forest management agreement between the Alberta Minister of Forestry,Lands and Wildlife, and Daishowa Canada Co. Ltd.73 This is a term coined by Webb, supra, fn 15, at pg. 7, to describe the disparity between thepromise of statutory language and the bureaucratic experience with implementation.74 Ibid, at pg. 24.56Canada's experience with regulating the environmental emissions from pulpand paper mills attests to these complexities. Writing in 1991, one observercomments that: "After twenty years of provincial and federal regulation and afterreceiving literally billions of public money in grants and tax exemptions intended toassist with pollution control, the majority of mills still do not meet federal toxicitystandards and the industry remains one of Canada's largest polluters."75 Thishistorical failure is attributed to political, economic and technical issues involved inmill regulation.76Another example of the influence that these operational realities can have onthe shaping of regulations is manifested in the case of regulating PCBs. In the viewof some commentators the public fear of "micro-chemo phobia"77 created politicalpressure resulting in regulatory action that was unwarranted given the scientificevidence. As was observed by Justice Fraser of the Ontario Court of Justice(General Division), the political imperative may lock the law into an untenablescientific position:' MacDonald, supra, fn 65, at pg. 227. Note that this comment was made prior to theenactment of the three new regulations passed by the federal government in 1992, supra, Chapter Onefn 5.76 See, for example, the federal government's own assessment of this situation in which it openlyacknowledges these complexities, Environment Canada, Conservation and Protection Branch, WilliamF. Sinclair, "Controlling Pollution from Canadian Pulp and Paper Manufacturers: A Federal Perspective",(Ottawa: Minister of Supply and Services, 1990). See also MacDonald, supra, fn 65, at pgs. 225-240(noting that Canada's attempts to regulate have been impeded by "major political factors").77 R. v. Consolidated Maybum Mines Limited, supra, Chapter One fn 2, at pg 276. This term wasused by one of the expert witnessess in this case to refer to the "public anxiety about minusculeconcentrations of chemicals now detectable in the environment thanks to technology particularly whenthe chemical has a 'nasty two or three syllable name to it'". (Ibid).57I find as a fact based on the evidence called that there is a broadscientific consensus that PCBs are not direct carcinogens nor are theycarcinogen promoters in humans. There is no evidence presentlyavailable that would justify a finding that PCBs have an adverse effecton humans based on the realistic exposure levels that could beobtained from environmental exposure...The Crown submits that the Court should not be drawn intopronouncing on the wisdom of regulating PCBs at a level of 50ppm...Considering the clear evidence that the level of public concernabout PCBs is not in step with scientific consensus, this proposition isundoubtedly correct. Such regulatory decisions reflect a complexweighing of choices in terms of economic activity, costs, technologicaloptions and social goals. Mr. Wong testified that the Ministry's goal isthe complete elimination of toxic materials from the environment. Thisprobably has no scientific foundation in terms of necessity but may wellbe an accurate statement of the public expectation. 78It is appreciated that the two foregoing examples of regulatory situations arecomplicated and cannot be analyzed superficially. The only point in referring to themis to illustrate that the design of environmental laws necessarily sets up the resolutionof difficult economic, political and social issues at the regulatory level. Consequently,the influence of "extra-legal" factors becomes crucially important to understanding thelandscape of environmental laws and their importance cannot be denied.E. ConclusionsBroad discretionary powers are a necessary and permanent part of present dayenvironmental laws, which powers are also part of the larger phenomenon of theincreased role of bureaucracies in modern government. Within the context ofenvironmental decisions, this discretion requires the resolution of important policy78 R. v. Consolidated Mayburn Mines Limited, supra, fn 77, at pgs. 275-77.58choices amidst a panoply of competing forces. Discretion is acceptable within theframework of the Canadian political-legal culture so long as it meets underlyingdemocratic values, such as accountability, openness, rational decision making and fairprocedures. Currently, the regulatory process of decision making under commandand control pollution laws falls short of meeting the values cherished in thetheoretical framework. One of these values is the notion that regulatory decisionsmust be rational, a concept that is particularly interesting to this discussion. In thecontext of environmental decisions, rationality often translates into reliance uponscientific evidence and expertise. However, the characterization of science as rationaland thus as a rule-certain constraint on discretion portrays an overly simplistic pictureof the interface between scientific information and regulatory discretion. The focusof the next chapter is to elucidate the nature of the type of scientific information usedby regulators and to examine the implications of this.59CHAPTER THREETHE ROLE OF SCIENCE IN ENVIRONMENTAL REGULATIONScientific information has been the single most important force in shaping theenvironmental agenda.1A.^Introduction - The Need for ScienceThere is little doubt that science plays an integral part in environmentaldecision making processes and, particularly, in the setting of environmental standards.This chapter will consider the nature and use of scientific information by regulatorsto set environmental standards. This discussion requires a caveat. It is difficult tomake generalizations about the role of science in environmental decision makingwithout engaging in a case by case study. Nonetheless, some general observations canbe drawn from the case study literature and this is the approach taken here. Theseobservations also highlight the parameters of the philosophical debate in this areawhich is considered in Part C below.Science is crucial to environmental standard setting due to a combination offactors including the knowledge requirements dictated by statutory mandates and theneed to found administrative decisions on a rational basis. Recall the broad statutorylanguage of B.C.'s key environmental statutes that were discussed in Chapter One.In order to meet such general statutory mandates as, for example, preventingGovernment of Canada, Canada's Green Plan for a Healthy Environment, (Ottawa: Ministerof Supply and Services, 1990), at pg. 147.60"detrimental environmental impacts" or "protecting the environment as is consideredadvisable"2, it is necessary to have knowledge about the nature of polluting activitiesor substances and their effects on human health and/or the natural environment. Theknowledge that helps regulators to understand what may harm the environment orwhat is toxic is the domain of the natural sciences; disciplines such as biology,toxicology and soil chemistry. For example, our understanding of the impacts ofCFCs on atmospheric ozone depletion, of lead pollution from auto emissions or ofthe harm caused by the pesticide DDT have all been informed by scientific inquiryand analysis.Scientific information is essential to the development of appropriateregulatory responses under environmental laws. Scientific information aboutenvironmental problems helps regulators to prioritize harmful pollution activities andto devise and defend protective control measures relating to such activities. Forexample, the Annual Report 1991-1992 to Parliament produced under the CanadianEnvironmental Protection Act states that regulations under the Act "typically beginwith a [scientific] assessment report, establishing a scientific basis for control."3Furthermore, legislatures often confirm the need to obtain and rely upon scientificinformation in environmental decision making by providing express statutory authority2^These two references are to sections of certain B.C. environmental statutes that wereconsidered in Chapter One, supra, fns 22 and 25.3 Canadian Environmental Protection Act, Report for the Period April 1991 to March 1992,(Ottawa: Minister of Supply and Services Canada, 1992), at pg. 23.61to conduct research or to form technical advisory committees.4In addition to the statutory context, administrative law principles require thatregulatory decisions be "reasonable". Science, which is synonymous with rationalthinking in our culture5, provides a sound basis for the rational exercise ofadministrative discretion. Given this, science does more than simply informdiscretion. In an effort to grapple in a reasonable way with the complexities anduncertainties surrounding environmental issues, regulators often turn to science foranswers. In this way, science satisfies the law's need for certainty and acts as apowerful legitimizing force.6In short, it can be readily accepted that science is needed to inform regulatorydecisions about environmental protection. Furthermore, using science, with itsperceived objective facts and norms, to substantiate these decisions conforms to theprerequisite that these decisions be rational. Accordingly, it seems clear that aregulatory decision made without any consideration whatsoever of available andrelevant scientific evidence would be considered patently unreasonable. However,the complaint that no science was used by an environmental regulator is seldommade. More often than not, the complaint is one of scientific incompetence or,perhaps more accurately, a disagreement with the way discretion was exercised in4 See, for example, the B.C. Environment Management Act, supra, Chapter One fn 22, s. 2 whichelaborates on the duty of the Minister to protect the environment by giving him the power to do"planning, research and investigation with respect to the environment".5^Science connotes the opposite of ignorance or misunderstanding. See the Webster'sDictionary." Mary L. Lyndon, "Risk Assessment, Risk Communication and Legitimacy: An Introduction tothe Symposium", 14 Columbia Journal of Environmental Law 289 (1989), at pg. 296.62assessing and interpreting scientific evidence.7The Canadian case involving the cancellation of the herbicide alachlorexemplifies how scientific information must be assessed by regulators in order tomake a regulatory decision.8 In February 1985, the Minister of Agriculture cancelledthe registration for the herbicide alachlor in Canada. Monsanto Canada, one of themain manufacturers of alachlor, appealed the Minister's cancellation to a reviewboard. Alachlor had been used for almost 16 years by Canadian corn and soybeanfarmers. The cancellation action was taken as a result of new scientific studiesindicating that alachlor induced cancerous tumours in lab rats and mice during long-term feeding trials. Health Protection Branch ("HPB") officials at Health andWelfare Canada had thus concluded that: "Alachlor is one of the most potentcarcinogenic pesticides presently in use and should be removed from the market assoon as possible."9Under the provisions of the Canadian Pest Control Products Act of 1969, theMinister of Agriculture can cancel the registration of a product when, "based oncurrent information available to him, the safety of the control product or its merit orvalue for its intended purposes is no longer acceptable to him".1° Neither the Actnor the regulations give any guidance to the Minister on the meaning of "acceptable"7 Greenwood, supra, Chapter One fn 36, at pg. 2.8^This following discussion of the alachlor case is based on the analysis of this case set out inthe excellent book by Brunk et. al., supra, Chapter One fn 43.9^Ibid, at pg. 10.10 Ibid.63nor how the notions of safety, merit and value interact. This provision was at thecentre of the controversy over the cancellation of Monsanto Canada Inc.'s registrationof alachlor. The legal dispute in this case revolved around the government'sdetermination of acceptable risk. The government interpreted this provision as anabsolute safety standard whereas Monsanto argued that as a matter of regulatoryfairness, a formal risk-benefit analysis was required. How did the science influencethese determinations?The details of the scientific data need not be repeated here in detail otherthan to note that the lab data and other studies revealed a variety of different cancerresponses in rats and mice depending on the amount of alachlor fed to the animals.Health and Welfare Canada interpreted the data using the lowest dose levelinformation, which was not statistically significant, but which it viewed as biologicallysignificant because of the rare type of tumours induced:The appearance of tumours at the low dose rate was especiallysignificant to HPB officials because this rate was within the range ofexpected dose that HPB had calculated for the applicators of alachlor.Thus, from their point of view, there was no "margin of safety" at allbetween potential dose rates experienced by human users of thechemical and those dosages that produced tumours in rats.11Alternatively, Monsanto argued that the rat studies did not provide any basisfor the HPB's conclusions that alachlor posed a risk of cancer to humans. Monsantoagreed that at high dose levels, alachlor posed a risk of cancer to humans, but held:(a) that there was no reason to extrapolate from thecarcinogenic response in the rats to the assumption of11^Ibid, at pg. 12.64such a response in humans, and(b) that even on the assumption that such extrapolationswere reasonable, the rat studies suggest that alachlor isnot carcinogenic at the levels of exposure to be expectedamong human applicators and others.The company believed that the fact that there were nostatistically significant occurrences of cancers in rats atthe low dose rates indicated a "threshold" level belowwhich alachlor could be assumed to be non-carcinogenic.12On appeal, the review board found that it was not appropriate for thegovernment to consider safety alone:The Board admitted that the risk-benefit approach was not required bythe [Act] but, nevertheless, it was the approach the Board thoughtmost reasonable for regulatory bodies to follow. All other "absolutestandards" it considered to be arbitrary and unclear in theirapplication.13The board's interpretation is illustrative of how risk analysis intrudes on theregulatory process despite, arguably, a legislative intent to adopt a safety onlyapproach.Although it is indisputable that scientific information is essential toenvironmental regulatory decision making, it is far from clear how much and whatkind of scientific analysis is enough or appropriate to warrant regulatory action. Is itappropriate to rely on animal studies as evidence of carcinogenic risks to humansespecially if they contradict negative human studies? Or, vice-versa, what are theimplications of this to the human data? If animal studies are going to be used, what12 Ibid, at pg. 14.13 Ibid, at pg. 20. [emphasis added].65sort of statistical model should be used to determine the "right" dose level applicableto human exposure if a very high dose, as is common, was used in the animalexperiment? Is effect A in fact caused by variables x, y and z? These decisionsintermingle scientific asssumptions with administrative discretion. The result of thisstate of affairs has been noted by one of the leading U.S. writers on environmentallaw:A recurring issue in environmental law is scientific and technologicaluncertainty...Lawyers like to think that scientists have clear anddefinitive answers to certain factual questions - is this level of pollutionharmful, and precisely what damage will it produce? The answer islikely to reflect a judgment, rather than a statement of fact...Theresolution of such mixed questions - questions of fact which carry thelaw with them - is one of the earmarks of environmental law. It is alsoone of the reasons for the problems of government agencies that seemto lag in the promulgation of standards. The impatience with agenciesmay be justified - but the delays in regulation and in adjudication areunderstandable because the field is very complex...There do not seemto be any answers as yet to the many good questions lawyers andadministrators ask the scientists.14The exercise of discretion to interpret and apply science lies at the heart ofthe controversy surrounding the use of science in environmental regulation. Thismatter has fuelled some intensive litigation battles in the U.S., and to a lesser degree,in Canada. In order to understand the nature of the debate as to the role of science,it is necessary to further consider the nature of scientific knowledge and how it isused by environmental regulators.14 Frank P. Grad, Treatise on Environmental Law, Volume I, (New York: Matthew Bender &Co., Inc., 1973; 1992 Supplement), at pgs. 1-25 - 1-26.66B. The Nature and Use of Scientific KnowledgeAs was observed in Chapter One, the type of scientific knowledge availableto and used by regulators in environmental problem solving is as vast and varied asthe types of environmental issues encountered in today's world. However, it is fairto say that one common approach that is typically used in standard setting is riskanalysis. Risk analysis is an analytical methodology used to identify, quantify andmanage the environmental risks associated with toxic chemicals. In its classicalexpression, the first two activities of identifying and quantifying risk, the riskassessment stages, are said to be purely scientific factual inquiries relating to thecharacteristics of risk, in as quantitative a way as possible.15 The final result of arisk assessment is generally expressed in a numerical estimate of the maximumindividual risk or as the number of cancers expected to result from the substance atissue. Cancer is used as an indicator for other health effects because there is moreavailable data on it. In addition, regulators have reasoned that controlling for thecancer effects of a pollutant establishes a level of exposure that would be likely tocontrol for other health effects.16 Thus, a commonly accepted calculation of cancerrisk is "one in one million". This expresses the acceptable de minimus risk standard15 See Howard Latin, "Good Science, Bad Regulation, and Toxic Risk Assessment", 5 Yale Journalon Regulation 89 (1988), at pg. 89; Whyte and Burton, supra, Chapter One fn 34, at pg. 11; andBrunk, supra, Chapter One fn 43, at pg. 4.16 Lyndon, supra, fn 6, at pg. 290, fn 4 therein. See also Richard Wilson and E.A.C. Crouch,"Risk Assessment and Comparisons: An Introduction", 236 Science 267 (1987), at pg. 269 (cancer riskassessments act as surrogate for other chronic risks such as heart problems).67based on an exposure level calculated to reflect the probability that one person inone million will die of cancer. For example, in the B.C. Ministry of Environment'sdocument on the applicable criteria for the risk management of contaminated soil,it is stated, without further elaboration, that the one in one million risk criterion iscommonly regarded as a 'de minimus' risk level, below which agencies do not takeregulatory action to control risks."17Environmental regulators use risk assessment calculations to help them to:(1) set priorities; (2) adjust regulations to the degree and distribution of the risk tobe controlled; and (3) to make site specific decisions by considering the nature ofthe pollutant, the sensitivity of the environmental setting and the availability of thecontrol techniques. 18 The supposedly objective assessment carried out by scientistsis used to evaluate risk so that it can be managed. Risk management involvesjudgments about the significance and acceptability of risk and is openly value based.It is accepted that environmental regulators act as risk managers by using thescientific expertise provided by risk assessments. 19There is some dispute as to whether risk assessment is a science or an art.Although often labelled as a science, it appears that, at best, it can be described as17 British Columbia Ministry of Environment, Land and Parks, Waste Management Branch,"Criteria for Managing Contaminated Sites in B.C.", Draft #6 dated November 21, 1989, at pg. 4.is Milton Russell and Michael Gruber, "Risk Assessment in Environmental Policy-Making", 236Science 286 (1987), at pg. 286.19 For example, the U.S. EPA's guidelines for estimating carcinogenic hazards, provide that riskassessments should be carried out "independently from considerations of the consequences ofregulatory action", as cited by Latin, supra, fn 15, at pg. 89.68a "developing science".20 In any event, risk assessment does endeavour to providea systematic approach for solving complex problems relating to environmentalhazards.Risk assessment and risk analysis arose in the late 1960s and early 1970s as adirect consequence of the first wave of green consciousness and environmentallegislation marking that time. In the United States, the passage of the federalenvironmental impact assessment statute, the U.S. National Environmental Policy Act,and the mandates of several federal agencies, such as OSHA and EPA, to protect thepublic from environmental risks were catalysts in the development of the formalpractise of risk analysis.21 In Canada, similar federal and provincial policies, lawsand agencies emerged during the same period.In response to criticisms about the inconsistencies in government policies, theU.S. government has made several concerted attempts over the last decade tocoordinate and standardize risk assessments both within the federal bureaucracy and,particularly, within EPA. For example, in 1982 the U.S. Congress passed the RiskAnalysis and Research Demonstration Act to "help perfect the use of hazardassessment by federal agencies concerned with regulatory decisions related to the2" K. S. Shrader-Frechette, Risk Analysis and Scientific Method: Methodological and EthicalProblems with Evaluating Societal Hazards, (Dordrecht: D. Reidel Publishing Company, 1985), at pg.5. However, note Lydon's comment that "in a real sense, risk assessment is an art." (Lyndon, supra,fn 6, at pg. 291.21 K S. Shrader-Frechette, Risk and Rationality: Philosophical Foundations for Populist Reforms,(Berkeley: University of California Press, 1991), at pg. 6.69protection of human life, health and the environment."22 Another example of thegovernment's coordinating efforts involved the publication of the "principles forcancer risk assessment" by the White House Office of Science and Technology Policy(1985).23 In 1986, EPA issued its own guidelines for carcinogen risk assessment.These guidelines were followed by a widely referenced policy report in 1990 producedby the EPA's Scientific Advisory Board. This report, Reducing Risk: Setting Prioritiesand Strategies for Environmental Protection, is aimed at shifting national environmentalpolicy to a comparative risk approach. This is considered to be a more rationalstrategy based on the principle of achieving the greatest risk reduction for the leastmoney and for anchoring EPA decisions more to the "scientific understanding of risk"than to the public's risk "perceptions".24 Reducing Risk provides an excellentexample of the institutional entrenchment of the notion of rationality madesynonymous with scientific risk assessment.Senate Committee hearings were held to discuss the Reducing Risk Report.One writer has observed that these hearings elicited fundamental disagreementsbetween governmental, scientific and citizens groups about the scientific issues inevaluating risk and the underlying questions of human values.2522 Ibid.23 Graham, supra, Chapter One, fn 36, at pg. 6.' These comments were made by EPA Administrator William Reilly at the announcement of theReducing Risk Report, as cited by Hornstein, supra, Chapter One fn 34, at pg. 563.25 David Clarke, "Looking at Risk", 8 The Environmental Forum 12 (March/April 1991), at pg.16.70The notion that risk assessment is a purely factual and objective scientificexercise reflects our cultural world view that science is a fact finder/truth seeker.26It is said that science stands beyond politics.27 Science is merely a way of gainingknowledge through inquiry and experimentation. In particular, science "seeks to findthe best among available answers to questions, to demonstrate that one hypothesisis so consistent with observation and experiment that we are justified in calling it "thetruth"."28 This observation raises two important points about the nature of scientificmethodology and knowledge.First, science is an experimental endeavour focussed on finding the bestpossible answer and by its very nature it inherently encourages doubt. Uncertaintyis part of the investigative process and thus scientific knowledge can legitimately besubject to honest differences of opinion between equally credible experts. Secondly,before scientific consensus or acceptability emerges, a very high standard of proof isneeded, usually 95%.29 These scientific norms can hinder the regulatory process.As many commentators have observed, the implication of this to the administratorwho bears the burden of proving that his decision meets the relevant regulatorymandate is that any imperfections in scientific knowledge about human risk can26 A great deal has been written about the emergence of scientific thought and its impact on theNorth American world view and our cultural myths. For a provocative look at how this scientificworld view is integral to modernity and is, arguably, connected to present day socio-economic ills, seeMorris Berman, The Reenchantment of the World, (Ithaca: Cornell University Press, Bantam Edition,1984; original publication, 1981).27 Carter, supra, Chapter One fn 37, at pg. 1337.28 Ibid.29 Schrecker, supra, Chapter One fn 23, at pg. 26.71operate to permit continued exposures to toxic chemicals:It is now well recognized that the inherent conservatism of science, thata good scientist does not allow commitment to a hypothesis until thecase is proven, can work against the prudence embedded in most lawsand regulations drafted to protect public health.3°The observation that the disciplinary norms of science can hamper theregulator's mission was made by a former administrator of the pesticide division ofthe U.S. Department of Agriculture (the "USDA"), Ned Bayley. During his tenureas administrator during the 1960's, Bayley noted that the scientific viewpointdominated the pesticide division. This caused reluctance to respond to the types ofissues raised by writer Rachel Carson in her seminal book, Silent Spring. This USDAorientation led:bureaucrats to emphasize the weakness of some of Carson's evidence,to dismiss harmful effects not proven with reasonable scientificcertainty, to request more funding for long-term pesticide research thanregulation, to adopt the extended timeframe typical of scientificresearch and to underestimate the political clout of the nascentenvironmental movement.31This led Bayley to conclude: "Although scientific data are essential to decisionmaking on pesticide regulations, I believe (as a scientist who has had to modify histhinking drastically as an administrator) that having a regulatory function operateunder a science-dominated administration is a mistake."3230 Graham, supra, fn 23, at pg. 1.31 Howard Latin, "Regulatory Failure, Administrative Incentives, and the New Clean Air Act", 21Environmental Law 1647 (1991), at pg. 1671 (quoting Bayley, "Memoirs of a Fox", 2 EnvironmentalAffairs 332 (1972-73), at pg. 335).32^Ibid.72Implicit in these observations is the recognition that "uncertainty" is part ofthe state of affairs for the scientist. One writer who has comprehensively studied theinteraction between science and the exercise of policy discretion by environmentalregulators in the United States has characterized the types of scientific knowledgeused by regulators into four conceptually useful categories:• Information may be available, but its interpretation isuncertain or in dispute;• Information may exist or could be obtained with limitedresearch, testing, measurement, or analysis, but is notavailable to agencies when needed;• Information may not exist and could be obtained onlywith substantial effort; and• Information may be unobtainable in principle.33Lastly, what is the source of scientific information? The scientific communityis unlike some of the other players in the environmental regulatory arena in that itsinstitutionalized expression is less precisely identifiable.34 It is a diverse collectionof knowledge whose members can be found in many institutions such as universities,governments and private organizations. For example, one of the premier scienceorganizations in Canada is the National Research Council of Canada, a governmentbody. It is in "charge of such matters affecting science and industrial research inCanada as may be assigned by the Governor in Council"35 but it does not appear33 Greenwood, supra, fn 7, at pg. 73. Greenwood's book analyzes OSHA's health-basedstandards program and the EPA's hazardous air pollutants program for the years 1970-1981.34 See G.B. Doern, The Peripheral Nature of Scientific Controversy in Federal Policy Formulation,(Ottawa: Science Council of Canada, 1981).35 National Research Council Act, R.S.C. 1985, s. 4. In 1992-93, the NRC had an annual budgetof about $429 million and employed about 3,000 people (as cited in Canadian Government Programsand Services, (Toronto: CCH Canadian Limited, 1993), at pg. 5030.)73to have a specific responsibility for environmental risk assessment. In Canada, thereis no single scientific lobby or body known for its environmental research andpressure: "Instead, key Canadian scientific concerns have been advanced by scientific'notables' or through the ongoing work and activity of scientists in government,business, ENG0s, and the universities."36What are the implications of all of the above observations to the task of theenvironmental regulator? These implications can best be understood through a caseillustration. A fascinating case dealing with the regulator's task and how courtsrespond to scientific uncertainty is the decision of the United States Supreme Courtin Industrial Union Department, AFL-CIO v. American Petroleum Institute et. al.37 .This litigation represents one of the first attacks on a regulator's use of science andis the only U.S. Supreme Court decision on the question of how much scientificanalysis is necessary to support a regulation in the U.S.38 It is also indicative of theproblems that repeatedly plague the interface between science and law in the areaof environmental regulation.As a result of new scientific evidence linking the substance benzene toleukemia, the U.S. Occupational Safety and Health Administration ("OSHA") issuedregulations requiring employers to reduce benzene exposure levels in the workplace' G. Bruce Doern, Green Diplomacy: How Environmental Policy Decisions Are Made, (Ottawa:Renouf Publishing Company Limited for the C.D. Howe Institute, 1993), at pg. 19.37 448 US 607 1980 (USSC), 65 L. Ed. 2d 1010. This decision is hereinafter referred to as theBenzene case and all subsequent citations are to the L.Ed. report of the case.38 Graham, supra, fn 23, at pg. 4.74from the pre-existing standard of 10 parts per million ("ppm") to 1 ppm. AlthoughOSHA expressly recognized that it could not quantitatively measure the differencein risk between the 10 ppm standard and the 1 ppm standard, it reasoned that thereduced standard would qualitatively reduce the risk to workers and thus was inkeeping with their statutory mandate. OSHA's regulation was made the subject ofpre-enforcement judicial review pursuant to the provisions of the Occupational Safetyand Health Act (the "OSH Act"). In a majority decision39, the Supreme Courtinvalidated OSHA's new standard of 1 ppm.Under the OSH Act the Secretary of Labor has broad authority to promulgateoccupational safety and health standards. In the benzene case, two key sections wereat issue. First, the general standard setting authority in section 3(8) providing thatan "occupational safety and health standard" means a standard "which requiresconditions.. .reasonably necessary or appropriate to provide safe or healthfulconditions of employment."40 In addition, with respect to toxic materials, section6(b)(5) required, in relevant part, that the Secretary set a standard "which mostadequately assures, to the extent feasible, on the basis of the best available evidence,that no employee will suffer material impairment of health..."41The majority of the Supreme Court invalidated the OSHA regulation primarilyon the basis that OSHA exceeded its statutory authority. The court found that the39 The decision in this case was split 5 to 4, with a very strong dissent being written by JusticeMarshall.40 Benzene case, at pg. 1017.41^Ibid.75administrative record did not support the view that 1 ppm was "reasonably necessaryor appropriate to provide safe and healthful employment" as required by section 3(8)(which as a matter of statutory interpretation was read to limit the toxics standardsection). Furthermore, and this is the crucial point, the majority determined thatsection 3(8) confined the Secretary's authority to the regulation of "significantrisks".42 The dissenting judges expressed the view that the OSHA standard was fullyin accord with their statutory mandate with respect to toxic substances and could besupported by "substantial evidence in the record as a whole" as required by therelevant judicial review section of the OSH Act. One scholar has argued that thecritical flaw made by the majority in the benzene case was that it equated scientificuncertainty with minimal risk; in other words, the court interpreted the notion of"significant risk" to mean a risk that could be demonstrated with scientificcertainty.43 This observation was also made in Justice Marshall's strongly wordeddissent in which he notes that in their legal quest for certainty, the court subvertedthe legislative preference to act preventatively when dealing with toxics in theworkplace."The influence that science played in the interpretations given to these statutoryprovisions by each of OSHA and the Court is one of the most noteworthy aspects ofthe Benzene decision. What scientific information was before OSHA and how wasHoward Latin, "The Significance of Toxic Health Risks: An Essay on Legal Decisionmakingunder Uncertainty", 10 Ecology Law Quarterly 339 (1982), at pg. 343.43 Ibid.76it dealt with? There were primarily two types of scientific evidence linking benzeneand cancer or other health effects: epidemiological45 studies and animal studies,both of which are common risk assessment tools. Based on this evidence, OSHA andindustry experts agreed on two points: (1) that there was valid and acceptablescientific evidence to show that at high exposure levels, benzene would causenonmalignant blood diseases, leukemia and chromosal damage; and (2) that therewas very little direct evidence of harm at the 10 ppm leve1.46As a backdrop to this evidence, it should be noted that the vast majority ofcarcinogens are what are called "non-threshold" pollutants which means that scientistscannot determine a dose level below which no adverse health effects can be observed.This is further compounded by the fact that the causal mechanisms of cancer are notunderstood by scientists. What does this information mean to a regulator responsiblefor determining a "safe" exposure level for humans? It was OSHA's view that thislack of scientific understanding meant that no "safe" exposure level could bedetermined and that section 6(b)(5) of the OSH Act therefore required that anexposure limit be set at "the lowest technologically feasible level that will not impairthe viability of the industries regulated."47 This was an explicitly risk-conservativepolicy decision made by OSHA which attempted to err on the side of the worker andshift the implications of scientific uncertainty to industry. The Benzene litigation arose' Epidemiology is "a branch of medical science that deals with the incidence, distribution, andcontrol of disease in a population." See Webster's Dictionary.46 Latin, supra, fn 42, at pg. 360.47 Benzene case, at pg. 1017.77because industry was strongly opposed to the costs that it would bear for a minorimprovement in risk reduction.48 Thus the familiar battle lines are drawn. Thecentre of the dispute in the Benzene case was the issue of the distributive costs andbenefits in connection with unquantifiable environmental risks. This discussion nowturns to the matter of the scientific information in the case, which is typical of thetype of information generated by risk assessments, epidemiological and animalstudies.Epidemiological Studies. Epidemiology uses direct observation of humandisease and employs biostatistical techniques to control for confounding factors.49The aim of these techniques is to show a positive association between an agent anda disease. For example, dietary factors such as meat consumption and coffee intakehave been linked to various cancers based on epidemiology. This association isgenerally accepted as the most convincing evidence on human risk.50 Despite this,epidemiological studies pose significant evidentiary problems. For example, it isdifficult to obtain accurate case histories and to distinguish the effect of mixed andmultiple exposures in a population. This can be especially troublesome given thelong latency periods of many cancers, often 40 years or more. It was precisely thesekinds of concerns that were mentioned by OSHA in the Benzene case as deficienciesIbid, at pg. 1027. The court noted that OSHA estimated that the new standard would requireapproximately $266 million in capital investments for engineering controls, first year operating costsof $187-205 million and annual costs thereafter of about $34 million in order to benefit about 35,000workers. (kid).49 Shrader-Frechette, supra, fn 20, at pg. 20.Ibid, at pg. 23.78that made the data unreliable.51 One writer has stated that these limitations meanthat epidemiology is at best a "crude science" which is "often useless".52 Given thesedrawbacks and the need to rely on human exposures, animal and other tests are anessential part of risk identification methodology.Toxicological Experiments and the Dose-Response Relationship. Animalexperiments, typically using rats and mice, are concerned with the effects of differentexposure levels of a suspect substance. Their primary purpose is to test hypothesesabout carcinogenicity. These experiments permit greater precision in the control ofexposure levels and other factors that do not compromise the results. However, theyare expensive and time consuming.53 Several hundred chemicals have been shownto be carcinogenic based on animal studies whereas epidemiological investigationshave been able to classify only 36 agents as strongly suspected human carcinogens.54Some scientists have interpreted such statistics as indicative of the inability of animaltests to predict the potency of substances in humans. The argument being thatprotective biological mechanisms in humans will prevent reaction to such low doses.There are a couple of major methodological problems with animal tests.51 Latin, supra, fn 42, at pg. 361 (Latin recites in detail 9 deficiencies identified by OSHA).52 James P. Leape, "Quantitative Risk Assessment in Regulation of Environmental Carcinogens",4 Harvard Environmental Law Review 87 (1980), at pgs. 92-93.53 These factors necessarily limit the size of the animal populations that can be tested. Leapewriting in 1980 stated that an experiment involving only 500 animals costs over $250,000. Yet inorder to detect a risk level of even one in 100 persons would require over 10,000 animals. (kid, atpg. 94, fn 51 therein).Ian Burton et. al., eds., Living with Risk: Environmental Risk Management in Canada,(Toronto: The Institute for Environmental Studies, 1982), Chapter 2, at pg. 14.79First, it is somewhat speculative to base human risks on results from rodentexperiments. This is particularly true when, as noted above, science just does notunderstand what causes cancer. Secondly, very high dose rates must be used in orderto induce cancer in a limited number of animals. This then requires extrapolation tohuman dose levels. This quantification aspect of animal testing is one of the mostproblematic. By way of dose-response mathematical modelling the human responseto contaminants is predicted based on the animal tests. These calculations build ina safety factor of one-hundred to one-thousand-fold below the lowest animal dose.It is beyond the scope of this paper to give a careful treatment to many of thedifficulties associated with the dose-response analysis but several points are worthnoting.55There are at least six different modelling approaches available and nearly allcan yield plausible results. The results of these various models can vary greatly, oftenby a factor of 100,000. For example, in the risk assessments done for saccharin, threedifferent models predicted risks ranging from 5 to 1,200 cancers per one millionpeople exposed.56 A fourth model, offered by an industry group, predicted onedeath per billion people exposed.57 In another case relating to TCE, a drinkingwater contaminant, it was observed that the "estimates provide a range of uncertainty55 The most thorough and understandable presentation on this topic that I have found is byDennis J. Paustenbach in his article, "Health Risk Assessments: Opportunities and Pitfalls", 14Columbia Journal of Environmental Law 379 (1989).56 Leape, supra, fn 52, at pg. 103.57^Ibid.80equivalent to not knowing whether one has enough money to buy a cup of coffee orpay off the national debt."58 A colourful explanation of the range involved in thesemodelling approaches.After a dose-response relationship is developed, the populations at risk andthe dose they are likely to receive from a given agent are considered. There are awide variety of factors that scientists must consider in estimating the concentrationof chemicals in the environment and what pathways will cause resulting ingestion byexposed humans. Conservative assumptions relating to the "maximum exposedindividual" rather than the typical person are used at this stage. This approach ofusing the maximum exposed individual answers the regulator's need to achieve a highdegree of protection. One writer is sympathetic to this concern but demonstrateshow extreme it can be in one analysis relied upon by the U.S. EnvironmentalProtection Agency to determine the dioxin hazard posed by municipal wasteincinerators:At first review, the analysis seemed reasonable until one noted that thechild ate about two teaspoons of dirt each day, that his house wasdown-wind of the stack, that he ate fish from a pond near theincinerator, his fish consumption was at the ninety-fifth percentile level,he drank contaminated water from the pond, he ate food grownprimarily from the family garden, and he drank milk from a cow whichgrazed on forage at the farm. This is not quite the description of atypical person living near a municipal incinerator. 59In the Benzene case, in light of science's lack of comprehensive theoretical58 Latin, supra, fn 15, at pg. 92.59 Paustenbach, supra, fn 55, at pgs. 403-404.81understanding of cancer causation, which essentially provides an inadequate base forwhich to achieve scientific consensus on the proper method of extrapolation, OSHAackowledged these difficulties and adopted a qualitative approach to the risk."The purpose of reviewing the science behind the Benzene case was not to bepersuasive one way or the other as to whether the best scientific/regulatory approachwas used by OSHA.61 The point of this discussion has been to illustrate the impactthat scientific uncertainty has on environmental standard setting. Clearly,environmental regulators must exercise discretion to interpret and assess theuncertainties presented by scientific data. This is the fundamental point - the wayregulators deal with science is an exercise in discretion. Yet the debate is not framedthis way. The debate is framed in terms of "good science" versus "bad science", interms of scientific incompetency or as contests between "objective" scientific opinionversus "subjective" scientifically uninformed, but well-intentioned, public opinion.62The important value-driven policy choices in this area are masked by thesedichotomies of "actual" against "perceived" risks and by aligning the "actual" risks withscience and claims of political and moral neutrality.63 This amounts to playing thepolitics-of-science game: "That is, the need for 'more research' is advocated and, as60 Latin, supra, fn 42, at pgs. 364-371.61 In addition, it is worth noting that there have been alterations in the regulatory posture ofOSHA and EPA as a result of the Benzene case and of additional regulatory experience gained overthe last decade. For example, the prevalent risk theory at EPA these days is a "comparative" risk ideaas explained above in Part B.62 Brunk, supra, fn 8, at pgs. 1-2.63^Ibid, at pg. 7.82a consequence, substantive action is continuously postponed until greater certaintyof knowledge is acquired. In other cases, the tactical politics of science is a none-too-thinly-veiled shield for self-interest."64 The essence of these criticisms is not aboutscience, it is about the exercise of discretion. As one articulate writer observes:Knowledge and discretion are closely intermingled in a decision-makingenvironment; the boundary between them is rarely precisely definable.As a result, debates ostensibly about knowledge and how to improvethe knowledge base of decision-making are often actually about theexercise of discretion and its implications for the distribution of costsand benefits in society. Decisions based largely or even totally ondiscretion are easily mistaken for - and are frequently claimed to be -decisions based on knowledge. In public policy debates, theconfounding of knowledge and discretion provides many opportunitiesfor both government officials and nongovernmental advocates toobscure arguments actually based on ideology or interest behind themore respectable veil of science.65The next section of this chapter will examine the parameters of thephilosophical debate regarding the role of science in environmental law and itsinfluence on administrative discretion.64 Doern, supra, Chapter One fn 13, at pg. 8.65 Greenwood, supra, fn 7, at pg. 2. That there are implicit value assumptions built into certainscientific methods and also into their interpretations is not a unique observation. For a fascinatingexample of a Canadian case (dealing with the cancellation of alachlor and briefly described above),see Brunk, supra, fn 8, at pgs. 1-7 (issues surrounding environmental risks are cast as battles about"objective" scientific opinion versus "subjective" scientifically uninformed, but well intentioned, publicopinion).83C. The Debate: The Separateness of ScienceThe discussion in Chapter Two of this thesis highlighted the fact that theraison d'etre of the administrative state is the need to create and rely upon expertise.In theory, the delegation of discretion to administrators relies on the separateness ofexpertise from the legal, political and ethical considerations traditionally reserved forthe legislative/executive policymakers. The ideology of science as a separate factfinding discipline in search of the "truth" about the physical world fits particularly wellinto this conceptualization. However, as was also noted in Chapter Two, theseparation of powers is an illusion in today's world. Environmental regulatorsroutinely perform policymaking activities balancing many considerations.Nonetheless, the idea that science is separate from policy and that it should be theexclusive domain of scientists continues to prevail as the dominant paradigm in the•context of environmental standard settmg. 66 Evidence of this can be found in thesegregation of risk assessment and risk management, previously noted.The school of thought which espouses the view that science is "separate" frompolitics, law and ethics has been labelled, not surprisingly, as the "separatist view".67Professor Yellin in an enlightening article on the separatist/non-separatist debate, sets66 For a thought provoking examination of the paradigm of "scientific" expertise and itsseparateness from the paradigms of "politics" and "fairness" in the context of U.S. judicial reviewdoctrines, see Edley, supra, Chapter Two fn 11.67 Joel Yellin, "Science, Technology and Administrative Government: Institutional Designs forEnvironmental Decisionmaking", 92 The Yale Law Journal 1300 (1983), at pgs. 1305-1316.84out three main components of the separatist view.68 First, separatists assert that itis possible to distill "scientific" and "technical" issues of fact from other matters inenvironmental controversies and to assign them to appropriate non-politicalinstitutions. In this way, environmental decisions could be made in a simple two-stepprocess: "Scientists, engineers or statisticians would first gather, compile, and analyzedata, and legislators or administrative policymakers would then consider the first-stage results and come to ultimate findings."69 Second, separatists argue that thisapproach is consistent with democratic principles since it reserves the policy questionsfor those who are accountable. Third, separatists claim that adversarial processessuch as administrative hearings and judicial review are the best method for dealingwith the open uncertainty of many technological issues.Yellin observes that these arguments have "undeniable force" and are powerfuljustifications for maintaining the existing institutional balance. However, as Yellinand other proponents of the non-separatist view explain, if the separatist view wastrue, the scientific and other dimensions of environmental issues could be readilydistinguished and these distinctions should be manifest in the actual performance ofour institutions. Yet there is ample analytical and empirical data to support theargument that this is not the case. Recall the Benzene case discussed above!Non-separatists argue that it is not possible to segregate the scientific andpolitical components of environmental decisions. These decisions by their very nature68 The following discussion is based on Professor Yellin's analysis at pgs. 1305-1309.69 Yellin, supra, fn 67, at pg. 1306.85are complex policy decisions. They argue that the value aspects of a decisioninevitably impact the scientific understanding of an issue and that they are sointertwined any effort to separate them is misguided. Accordingly, non-separatistsclaim that the best approach to improving how the administrator can best deal withscience is to improve the process of how scientific evidence is used so as to make thevalue laden issues and uncertainties more explicit. It is precisely because the mostdifficult environmental issues that confront regulators turn on uncertainty that thesecontroversies cannot be split into scientific and other components. Thisacknowledgement inevitably leads the non-separtists to conclude that inenvironmental decision making, it is not the substance of scientific questions that isimportant but rather the procedures by which the significance of scientific evidenceis evaluated.70D. ConclusionsThe modest aim of this discussion has been to provide a better understandingof how scientific knowledge is used by environmental regulators in determiningenvironmental standards. When environmental law meets science, the regulator isfaced with a perversely circular set of problems: policy decisions must be made inthe face of scientific complexity and uncertainty; these judgments are complicatedby economic, political and ethical complexities and uncertainties which, in turn, areobsured by the lack of acknowledgement as to the breakdown of facts and values in7° Ibid, at pg. 1310.86the scientific information.In the most problematic cases of toxic risk analysis, where knowledgeuncertainty prevails, it is apparent that assumptions arise at every point whereuncertainty arises: in calculating "safe" exposure levels; in relating animal tumourdata to human response; and, finally, in the very mechanisms by which disease isbelieved to work. To the extent that uncertainty exists, there is always the possibilityto err on one side or the other, either of over-estimation or under-estimation of risk.The assumptions that are used to fill in the knowledge gaps created by uncertaintyimplicitly require values to be used in the sense that the assessor must chose betweena risk-aversive or a risk-taking approach.71 For these reasons, the non-separatistschool of thought is more persuasive. Their proposed procedural fix as a way ofmeeting the task of harnessing science while safeguarding legitimacy is alsopersuasive.What is particularly notable, from a Canadian perspective, about the Benzenecase is the fact that OSHA's interpretation of available science and its analysis inconnection with the statutory mandate was openly disclosed in the administrativerecord. This disclosure allowed the testing of the regulatory rationale through thecourts and thereafter induced a lively scholarly debate on the topic. Putting aside thequestion of whether one agrees with the court's reasoning, it is clear the the U.S.regulatory process permits more careful scrutiny of the implications of scientificuncertainty. The next chapter examines the experience in the United States with71^Brunk, supra, fn 8, at pg. 36.87efforts to impose procedural rules about the disclosure and explanation of thescientific information used in environmental standard setting.88CHAPTER FOURTHE CASE FOR SCIENTIFIC EXPLICATION -- AN EXAMINATION OF THEU.S. EXPERIENCELet me propose the following generalization about public bureaucraciesin the United States: They are almost always given huge, even utopian,goals and are then saddled with a large number of constraints that preventthem from achieving these goals efficiently - or even at all. We tell EPA,for example, to protect the public health with an adequate margin ofsafety, but advise it not to spend too much money or put anyone out ofwork. We tell them to use the best scientific evidence, but refuse to letthem pay enough to recruit top-flight scientists, and then we tell them, "Bythe way, do it within 90 days." We expect bureaucrats to account for everypenny of public money, to record every conversation with a member of aninterest group, to show that they have treated everyone equally, and toconsider all the relevant information and alternatives - but to stopproducing all that red tape and being so damn slow.1A.^IntroductionThe purpose of this chapter is to consider how a legal rule requiringenvironmental regulators to disclose and to explain the science behind their decisionsmight operate. The experience in the United States is useful in this regard. Over thelast two decades, the collision of environmental regulatory demands and scientificcomplexities has been given considerable legislative, judicial, administrative andacademic attention in the U.S. This has resulted in two noteworthy developments.First, the rulemaking2 procedures of the Environmental Protection Agency (the1^Melnick, supra, Chapter One fn 38, at pgs. 257-58.=^"Rulemaking" generally refers to those administrative activities that result in the promulgationof "general rules" (as oppposed to case-by-case adjudication) pursuant to which proceduralrequirements are imposed under the U.S. Administrative Procedure Act as interpreted by courts. Forall intents and purposes in this thesis, rulemaking is equivalent to the Canadian administrative activity89"EPA" or the "Agency") have shifted over time to provide for more rigorous scientificanalysis and explanation. Secondly, there have been adjustments to environmentalpolicy making and statutory mandates to increasingly accomodate the use of riskanalysis, including cost-benefit analysis, in environmental decision making. Althoughthese two developments are interconnected in the sense that the disclosure of thetreatment of scientific data by EPA has enhanced the understanding of risk analysismethodology, and vice-versa, it is the first development, with respect to rulemaking,that is of particular interest to this analysis.3One of the pertinent aspects of the U.S. experience, which makes it acompelling case for the purposes of this thesis, is the fact that the development ofenvironmental law has been synonymous with the development of administrative law.As observed by a leading U.S. authority on environmental law:Environmental law, which involves standard setting and rulemaking ofa sophisticated technical nature by government agencies, as well asadministrative determination of controversies and the issuance ofadministrative orders and their enforcement is clearly a field ofadministrative law. Because of the high level of activity in the field,and because of the complex nature of the area, decisions withenvironmental implications now make up the majority of administrativelaw decisions in the federal courts, and, in consequence, the leadingcoursebooks on administrative law could probably be adapted quiteeasily to teach a course in environmental law.4of regulation making.3^This second development is generally not the subject of examination in this chapter or thisthesis, however, some aspects of the risk analysis experience in the U.S. were previously noted inChapter Three.4^Grad, supra, Chapter Three fn 14, at pg. 1-7. This sharply contrasts to the Canadianexperience where there has been very little correlation between the development of administrative lawand environmental law.90With respect to rulemaking, the courts in the United States have requiredEPA to establish a "reasoned" basis, supported by the administrative record, inscientific evidence when setting regulatory standards. For example, in one of the firstcases dealing with the impact of scientific information on standard setting, KennecottCopper Corp. v. EPA5 , the EPA record provided no explanation for the standard setin a regulation. The court remanded the standard back to EPA and directed the"Administrator to supply an implementing statement that will enlighten the court" asto the numerical standard set in the regulation. The rationale for this requirementwas to facilitate the court in judicial review on the basis that more information aboutthe regulatory analysis would help the court assess whether the regulation wasreasonable or not. The Kennecott Copper case will be examined in greater detail laterin this chapter but, for the moment, suffice it to say that such judicialpronouncements have affected the rulemaking procedures of EPA. In fact, theprocedures imposed on EPA as a result of the judicial review of many environmentaldecisions have been codified in most major federal U.S. environmental statutes.6Consequently, in the United States there are administrative procedural rulesrequiring the disclosure and explication of the scientific evidence used to support a5^462 F. 2d 846 (D.C. Cir. 1972). This decision is hereinafter referred to as the KennecottCopper case.6 For example, see Ernest Gellhorn and Ronald M. Levin, Administrative Law and Process ina Nutshell, Third Edition, (St. Paul: West Publishing Co., 1990), at pg. 335 (noting that in severalregulatory statutes adopted in the 1970s Congress experimented with variations of the AdministrativeProcedure Act rulemaking models, often borrowing devices from case law). In particular, under theClean Air Act, which is considered in detail later in this chapter, the judicially created "paper hearing"requirements were adopted in the rulemaking provisions of that statute. See discussion infra.91regulatory decision. For this reason, the U.S. experience with environmental standardsetting is a useful reference point for this thesis. It provides some valuable insightsfor the Canadian standard setting experience despite the obvious political-legalinstitutional and cultural differences between Canada and the U.S. This is so becausethe common denominators of administrative discretion and scientific analysis exist inboth countries and raise identical concerns with respect to the legitimacy andrationality of the decision making process. In addition, the hybrid nature of theCanadian system, consisting of American administrative institutions and Englishjudicial review7, permits the translation of the U.S. experience to the Canadiancontext, especially given the common issues in environmental regulatory protection.In order to bring this analysis down to a meaningful level of specificity, thediscussion in this chapter will examine certain aspects of standard setting by the EPAunder just one program, out of the vast number of regulatory schemes, administeredby EPA. This examination will focus on air quality standards as mandated by theU.S. Clean Air Acts. The Clean Air Act (the "CAA" or the "Act") is a seminalcommand and control statute with a rich twenty-two year history. It is also one of thekey environmental laws under which administrative rulemaking proceduralThe notion of the Canadian experience as a "hybrid" between American and English conceptsis part of the conventional wisdom in Canadian administrative law. However, as pointed out byProfessor Bryden, American judicial review ideas have increasingly supplanted their Englishcompetitors over the last 25 years: "We have gone from a situation in which we understood Englishlegal developments and accepted them as our own, to one in which we do not fully understandAmerican law but are constantly dealing with its influence, sometimes consciously but as often as notunconsciously". (Philip Bryden, "Canadian Administrative Law: Where We've Been", 16 Queen's LawJournal 7 (1992), at pg. 8).42 U.S.C. s.7410 et. seq.92requirements and scientific uncertainties have dovetailed. This chapter begins withan overview of the Act's history, the rulemaking context and a brief introduction tothe two key standard setting provisions that will form the analytical substance in thelast half of this chapter. In this discussion, the "Administrator" refers to the head ofEPA. The Administrator is "independent" in the sense that he is not elected, but thisis not to say that he is immune to political pressures. For the purposes of thisdiscussion, the Administrator can be considered the functional equivalent of aMinister of Environment in Canada.B. The Clean Air Act - An OverviewThe Clean Air Act, originally enacted in 1970, is one of the earliest and mostfar-reaching examples of the command and control approach to environmentalregulation that blossomed in the United States during the 1970s.9 The essence ofthe CAA as originally conceived was the establishment of a framework for theattainment and maintenance of air quality standards. In its present form, it alsoprovides for the setting of emission standards for motor vehicles and fuels, theregulation of hazardous air pollutants, the protection of stratospheric ozone, andcontrol over acid rain. This descriptive overview and the balance of this Part B are9 The CAA served as a model for other federal environmental legislation in the U.S. such asthe Clean Water Act. For a discussion of the history of the CAA and a concise overview of its mainprovisions, see the three part series of articles by Theodore L. Garrett and Sonya Winner, "A CleanAir Act Primer: Part P, 22 Environmental Law Reporter 10159 (March 1992) (hereinafter "Part I");"A Clean Air Act Primer: Part IF, 22 Env. L. Rep. 10235 (April 1992) (hereinafter "Part II"): and "AClean Air Act Primer: Part III", 22 Env. L. Rep. 10301 (May 1992) (hereinafter "Part III"). A morecomprehensive discussion of the Act can be found in Grad, supra, fn 4.93a decidedly simple explanation of a very complex statute. However, a schematicoverview of the CAA is useful "to prevent confusion and disorientation resulting fromstatutory overload."10The statutory history and regulatory experience under the CAA provide awealth of information and some fascinating insights into the benefits andshortcomings of pollution control in modern North American society. In 1983,Professor Shep Melnick wrote a book analyzing the first decade of the CAA's life andthe influence of the judiciary on environmental policymaking.11 Professor Melnickexplains why the CAA is a useful case study for understanding environmental law,which he describes as part of the "new social regulation":...not only has the Clean Air Act had a major effect on the economyand environment, but it presents a leading example of the newregulation. One finds here the key issues of how to define acceptablesocial risk, how to enforce costly control requirements, and how toreconcile protection of public health with economic growth and energydevelopment.Second, the judicial decisions issued under the act have themselvesbecome models provoking emulation. Many doctrines developed underthe Clean Air Act cases rank as the guiding principles of the newadministrative law. Since these decisions have received praise from theacademic legal community, Congress, and even the EPA, they providea test case, not a straw man or a sideshow.12As has been noted elsewhere in this thesis, the themes that Professor Melnick10 Grad, supra, fn 4, at pg. 2-76.ii Melnick's insightful book is Regulation and the Courts: The Case of the Clean Air Act,(Washington: The Brookings Institution, 1983).12 Ibid, at pg. 19. [emphasis added]94identifies as central to the experience under the CAA are representative of manyenvironmental standard setting and regulatory policy decisions in both Canada andthe United States. For this reason, the CAA provides a useful microcosm in whichto explore the central argument of this thesis.13Over its more that two decades of life, the CAA has been the focus ofvoluminous amounts of litigation and has undergone two periods of Congressionalscrutiny and amendments, one in 1977 and more recently, in 1990. One commentatorwrites: "Congress had considered amendments to the Act for most of the 1980s, butthe debate was protracted and frequently acrimonious".14 In 1990, thesetroublesome issues were dealt with in the The Clean Air Act Amendments of 1990 (the"1990 Amendments"). The 1990 Amendments are exceptionally long, extremelycomplex and include a great deal of material that previously would have beencommitted to the regulatory process.15As noted at the outset of this discussion, the CAA provides for the attainmentand maintenance of air quality standards. Two key provisions of the CAA aim to do13 Professor Melnick's book is not just about the influence of the courts. As he explains:"Viewed in one way, this book is about how a regulatory bureaucracy reacts to stimuli from an outsideforce. Viewed in another, it is a description of how various institutions and private interests....seekto resolve troublesome regulatory issues. It is my hope that even those with no interest in the courtscan learn something about bureaucratic decisionmaking and the nature of regulatory issues from thisstudy." (lbid, at pg. 23)14 Garrett and Winner, Part I, supra, fn 9, at pg. 10162.15 Grad, supra, fn 4, at pg. 2-81. Professor Grad notes that the 1990 Amendments extend theCAA by "314 pages,...making it one of the longest environmental laws on the books." (Ibid). One keysection, section 112, which will be discussed in greater detail in this chapter, was completely rewrittenin 1990 to expressly include material previously left to the administrative process. This approach,according to Professor Grad, "indicates the Congressional distrust of the executive, and particularlyEPA." (kid).95this and these sections will be the focus of discussion in this chapter. These twoprovisions, section 109 and section 11216, are examined in an overview mannerinitially and are then given more careful consideration in Part C below. However, itis first necessary to take a minor excursion through the governing principles of U.S.administrative law that are relevant to how the EPA conducts its business under theCAA.Needless to say, the political and legal institutional structures in the UnitedStates are different than those in Canada thus creating some important consequencesto the administrative process and the exercise of discretionary powers. One of thekey differences between the two countries is that the United States has a federalstatute, the Administrative Procedure Act17 (the "APA"), circumscribing howadministrative discretion and rulemaking, in particular, are to be exercised. The basicrulemaking procedure prescribed by section 553 of the APA is of interest to thisanalysis as it is the foundation for the procedural developments under the CAA. TheAPA provides for what is known as "informal"18 or "notice and comment"rulemaking. The APA's informal rulemaking process is simple and flexible consistingof only three procedural requirements: (i) notice; (ii) comment (ie. the writtensubmissions of interested parties); and (iii) the issuance of the final rule with a16 Throughout this discussion, references to the relevant sections of the CAA will be made tothe Public Law citations rather than to the U.S.C. citations.17 5 U.S.C. s. 500 et seq. The APA was first enacted in 1946.18 "Informal" rulemaking is contrasted with "formal" rulemaking or "rulemaking on the record".The latter type of rulemaking requires more formal adjudicative procedures (such as oral hearings andcross-examinations) and is usually triggered by the express provision of the governing statute.96"concise statement of basis and purpose".19 As was noted in Chapter Two, theCanadian federal government and some provinces have, as a matter of policy ratherthan statute, adopted modified versions of notice and comment procedures forregulation making.The basics of the APA procedural model were supplemented by amendmentsin 1977 to the CAA. These amendments adopted judicial interpretations of theAPA's informal rulemaking provisions:When the EPA set its first national standards in 1971, it followed theminimal requirements of the Clean Air Act and the AdministrativeProcedure Act...Shortly thereafter the Court of Appeals for the D.C.Circuit announced that this procedure did not provide the courts withenough information to evaluate the reasonableness of the EPA'sstandards. Without requiring the agency to conduct trial-like hearings,the courts ordered it to comply with a set of procedures designed toincrease public participation and to provide the courts with anadministrative record to review. Congress included these so-called"paper hearing" requirements in the 1977 amendments."2°The administrative procedure to be followed under the CAA is expressly dealt within section 307(d) of the Act. Rules must be promulgated by notice and commentprocedures, beginning with the publication of a notice of proposed rulemaking in theFederal Register, the American equivalent of the Canada Gazette. This notice mustcontain a statement of basis and purpose of the proposed rule. This statement mustinclude a summary of the factual data on which the proposed rule is based, themethodology used in obtaining and analyzing the data, and an explanation of major19 Gellhorn and Levin, supra, fn 6, at pgs. 323-324.20 Melnick, supra, fn 11, at pg. 263.97legal interpretations and policy considerations underlying the proposa1.21 The CAAalso provides that if the proposed rule relates to any subject on which the ScientificReview Committee and/or the National Academy of Sciences has made findings,recommendations, or comments, this information must also be provided in thenotice.22 All supporting documentation for the rule must be placed in the officialEPA "docket" (or administrative record) and made available for public review.After notice has been published, the EPA is required to accept writtencomments, data, or other documents from "any person" and to give interested personsan opportunity for "the oral presentation of data".23 All written comments andother documents submitted during this time must also be available in the publicdocket. The CAA does not set out a minimum time for public comment.The final rule promulgated by EPA can be based only on the information anddata that are in the docket.24 The final rule must be accompanied by a responseto all "significant" comments, criticisms, or data provided during the comment period,as well as an explanation for any major change in the final rule from the proposedrule.25The CAA also provides for pre-enforcement review in the U.S. circuit courts21 CAA, s. 307(d)(3).22 Ibid. The Scientific Review Committee is an independent body established by s. 109(d)(2)of the Act to review national ambient air quality standards at five-year intervals, commencing in 1980.23 CAA, S. 307(d)(5). The statute does not require formal hearing procedures to be used, otherthan the preparation of a transcript of the proceeding.24 CAA, S. 307(d)(6)(c).25 CAA, s. 307(d)(6).98of the air quality standards set by EPA under sections 109 and 112 of the Act.26These standards generally mimic the APA judicial review standards. A court mayinvalidate a regulation if the regulation is "arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with the law", it is unconstitutional, inexcess of statutory jurisdiction or without observance of procedure required bylaw.27Accordingly, the CAA establishes a procedure which, at least ostensibly, linksthe EPA's final regulatory decision to the underlying facts through a participatoryprocess that tests the EPA's explanation of its analysis. The statute also provides aninstitutional check on the ultimate regulatory product through judicial review. Whatis striking about this system, from a Canadian perspective, is the fact that anyinterested party to a rulemaking can obtain access to the relevant facts,methodologies and explanations for the regulations, scrutinize them, and challengethe decision in a much more open manner than is permitted in the Canadianapproach to environmental regulation.Section 109 and "NAAQSs". Section 109 creates the principal regulatoryprogram of the CAA. It has two elements: (1) nationwide air quality goals set by26 Judicial review is governed primarily by sections 304 and 307 of the Act.27 CAA, s. 307(d)(9). S. 307(d)(8) also states that in reviewing procedural errors, the court mayonly invalidate a rule if the errors were so serious and of such central relevance to the rule that thereis a substantial likelihood that the rule would have been significantly changed if such errors had notbeen made. Also, compare the judicial review provisions of the CAA to those found in section 706of the APA: a court may set aside an agency action found to be "arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law"; it violates the constitution; it is in excess ofstatutory jurisdiction; it does not observe procedure required by law; it is unsupported by substantialevidence; and it is unwarranted by the facts. (APA, ss. 706(2)(A)-(F)).99the EPA; and (2) individual state implementation plans, known as "SIPs", approvedby EPA in order to implement the national goals. Implementation is obviously a keycomponent of any regulatory program and although SIPs are a fundamental aspectof the CAA, it is beyond the scope of this analysis to deal with SIPs. This discussiondeals only with the EPA's experience in establishing national air quality standards.Under section 109, EPA is directed to promulgate health-based primary andsecondary national ambient air quality standards, or "NAAQSs", for what are knownas "criteria" pollutants. Criteria pollutants are defined in section 108 of the CAA asair pollutants that may reasonably be anticipated to endanger public health or welfareand that result from numerous mobile or stationary sources. These pollutants arecalled "criteria" pollutants because they are pollutants for which the EPA has issued"air quality criteria" -- scientific information about the extent and nature of the effectof the pollutant on public health or welfare.28 As of 1991, EPA had listed sevencriteria pollutants and promulgated NAAQSs for six of these pollutants: sulfur oxides(sulfur dioxide), particulate matter, nitrogen dioxide, carbon monoxide, ozone, andlead.29Section 112 and "NESHAPs". In addition to section 109, the CAA seeksto control hazardous air pollutants or "air toxics" under section 112. Section 112 hasa very checkered 20 year history under the CAA and it was significantly amended in28 Janet L. McQuaid, "Risk Assessment of Hazardous Air Pollutants under the EPA's Final BenzeneRules and the Clean Air Act Amendments of 1990", 70 Texas Law Review 427 (1991), at pg. 429.29 40 CFR pt. 50 (1991). Volatile organic hydrocarbons are listed but no NAAQS has beenpromulgated.1001990 to respond to the many criticisms about its failure. For the purposes of thisdiscussion, the historical experience under section 112 is of most interest because ofthe understanding it sheds on the implications of dealing with scientific uncertaintyand the regulation of toxic substances. Accordingly, the pre-1990 section 112,referred to as the "old section 112" or "section 112", will be the subject of thisanalysis. The 1990 revision of section 112 will be referred to as "the new section112". By way of introductory overview, some salient points about the old section 112and the new section 112 are worth making to give the history of section 112 somecontext.The old section 112 authorized EPA to establish health-based nationalemission standards for hazardous air pollutants, or "NESHAPs". Hazardous airpollutants were defined under the old section 112 as air pollutants to which noambient air quality standard was applicable and that, in EPA's judgment, mightreasonably have been anticipated to increase mortality, serious irreversible illness, orincapacitating reversible illness.30 Section 112 pollutants are typically found at highconcentrations close to the source and are thought to have more serious healthimpacts than criteria pollutants.31The old section 112 envisaged that EPA would follow a two-step process: (1)develop a list of air toxics; and (2) then establish NESHAPs at a level adequate toprotect the public health. Between 1970 and 1990, only eight substances or30 McQuaid, supra, fn 28, at pg. 429 (citing old s. 112).31^Ibid.101categories of substances were listed for regulation: asbestos, benzene, beryllium,mercury, vinyl chloride, radionuclides, inorganic arsenic, and coke oven emissions.32Standards for some, but not all, sources of seven of these air toxics had beenpromulgated and four were remanded to EPA by the courts for reconsideration.33The regulation for vinyl chloride was one such remanded decision and it will bediscussed in greater detail below.By the time Congress came to consider section 112 in 1990, it was perceivedas highly defective; there was a "widespread, virtually universal recognition that[EPA's] current efforts have been a failure".34 As a result, section 112 wascompletely rewritten in 1990 to establish a new regime for hazardous air pollutants.In particular, the new section 112 expressly listed 189 pollutants as air toxics forregulation; a telling contrast with the eight substances listed by EPA to that point.This step dramatically reduced EPA's discretion to determine what substances wereto be listed presumably to avoid the regulatory gymnastics which had characterizedthe first 20 years of section 112. As noted above, the details of the new section 112are not of major analytical interest other than to note the basic result - the statutorylisting of 189 pollutants. In short, in addition to the express list of the 189 air toxics,the principal elements of the new section 112 are as follows:32 40 CFR pt 60, s.61.01 (1991).33 McQuaid, supra, fn 28, at pg. 431.34 Leslie F. Chard III, "The 1990 Clean Air Act Amendments: Section 112 Comes of Age", 59University of Cincinnati Law Review 1253 (1991), at pg. 1253. See also McQuaid, supra, fn 28, at pg.428, fn 13 therein citing additional support for this perception.102• it creates a strict timetable for the promulgation ofregulations governing emissions of those pollutants;• it sets a new technology-based methodology forregulating hazardous emissions, with the principal focuson maximum control of total source emissions ratherthan on strict pollutant-by-pollutant emission standards;and• it establishes a revised strategy for regulating any"residual risk" remaining after the imposition oftechnology-based standards.35One crucial to this analysis should be made at this juncture. As noted, bothsections 109 and 112 were drafted as health-based standard setting provisionsmeaning that NAAQSs and NESHAPs standards were to be set at a level adequateto protect the public health. This language, like most environmental laws, raisesperplexing questions about what is "adequate"? One commentator, writing about theCAA, has observed that the upshot of this vague language, which is more symbolicthan functional, was to "fob off on the EPA and the courts the difficult problem ofdefining acceptable risk".36 Lastly, as was observed earlier in this thesis, theunderstanding of adverse health impacts is inextricably linked to scientific informationand analysis. For the purposes of the following discussion, it might therefore assistthe reader to think of health-based standards and scientific analysis (or riskassessment) as one and the same thing; that is, defining what is appropriate to35 Garrett and Winner, Part II, supra, fn 9, at pg. 10246. For further discussion and analysis ofthe details of these provisions, See Garrett and Winner, Part II, lbid, and Chard, supra, fn 34. Oneeconomist notes that the cost of the new scheme in section 112 when fully implemented may bebetween $6 - 10 billion annually (as cited in Daniel A. Farber, "Risk Regulation in Perspective: ReserveMining Revisited", 21 Environmental Law 1321 (1991), at pg. 1322).36 McQuaid, supra, fn 28, at pg. 433.103protect health is primarily seen as a scientific pursuit.C.^Standard Setting and Science - A Closer LookAs noted in Part A above, section 109 of the CAA forms the cornerstone of theAct's air pollution control program through EPA's promulgation of NAAQSs. TheNAAQS prescribes the maximum permissible concentration of a harmful pollutantin the ambient air. For example, the NAAQS for airborne lead is "1.5 microgramsper cubic meter, maximum arithmetic mean averaged over a calendar quarter".37How is such a determination made? Under the relevant sections of the CAA, thepromulgation of a NAAQS involves a three-step process, all taken within the contextof the Act's administrative procedural requirements, previously noted. First, theAdministrator is required to publish a list of air pollutants.38 Second, within oneyear after listing, the Administrator must issue an air quality criteria documentdescribing the kind and extent of the effects on public health and welfare that maybe expected from the listed pollutant.39 At the same time that the criteriadocument is issued, a proposed NAAQS is also published. Lastly, after a reasonabletime for public comments on the proposed standards, the Administrator mustpromulgate the final NAAQS.4° One essential point to note about this statutory37 40 CFR pt.50, s.50.12.38 CAA, s. 108(a)(1).39 CAA, s. 108(a)(2).40 CAA, s. 109(a)(1)(B).104scheme is the express link it makes between scientific information, as set out in thecriteria document, and the regulatory standard ultimately promulgated by EPA.To list a substance as an air pollutant, the Administrator must determine that(i) the substance is an "air pollutant" as defined in the CAA 41 (ii) it is emittedfrom numerous or diverse mobile or stationary sources; and (iii) the emissions will,in his judgment, cause or contribute to air pollution which may reasonably beanticipated to endanger public health or welfare. This language reveals that theinitial determination to list, which ultimately results in regulation, is highlydiscretionary. In particular, the last prong of the listing requirement expresslyrecognizes the discretionary exercise of the Administrator's judgment with respect toanticipated health risks.42 It has been stated that: "Although authority granted tothe Administrator is broad...Congress intended to give the Administrator authority toexercise his judgment while requiring that the judgment be rational and subject toadequate judicial review of its reasonableness".43 Since listing automaticallygenerates a scientifically-based criteria document and then a NAAQS, thisreasonableness notion appears to get tested at these later stages of the procedure.41 "Air pollutant" is very broadly defined in S. 302(g) of the CAA and, in part, provides that itmeans "any air pollution agent or combination of such agents, including physical, chemical, biological,radioactive...substance or matter which is emitted into or otherwise enters the ambient air..."42 Compare this approach with the definition of "air contaminant" as provided in section 1(1)of the B.C. WMA: an "air contaminant" means a substance that is emitted into the air and thatinjures or is capable of injuring the health or safety of any person, etc. It is arguable that the essenceof the administrative discretion in these two cases is the same despite the differences in the statutoryschemes, namely, to determine what air emissions will endanger public health.43 Garrett and Winner, Part I, supra, fn 9, at pg. 10166.105The statutory requirement of an air quality criteria document is especiallyinteresting to this thesis because it creates an express recognition and statutoryfoundation for scientific input into standard setting. Thus, it can be argued that theCAA creates a regime for rational administrative action based on scientific analysis.Under section 108(a)(2) of the CAA, criteria documents must "accurately reflect thelatest scientific knowledge useful in indicating the kind and extent" of a pollutant'seffects on public health or welfare. In addition, the section goes on to provide that,"to the extent practicable", a criteria document must include factors that alter theeffect of a pollutant, the interaction of one pollutant with another, and any knownor anticipated adverse effect on public welfare. The CAA also provides that theissuance of air quality criteria documents must be announced in the Federal Register,and made available to the general public.44The production of the criteria document creates a background factual basisand process leading to the issuance of the primary and secondary air qualitystandards for a pollutant. It became clear in the early stages of EPA's standardsetting efforts, that disputes over the scientific analysis would necessitate proceduresfor greater scrutiny of the data. As noted above, the 1977 amendments to the CAAimposed a more detailed administrative process for the promulgation of NAAQSs.These procedures include permitting interested parties to submit written commentson the proposed rules; providing an opportunity for oral presentation; the creationof an administrative record; and providing for EPA responses to "significant"'4 CAA, s. 108(d).106comments, criticisms, and new data submitted in oral presentations.45The listing of a substance and the production of the criteria documentultimately determined the basis for the establishment of a NAAQS. The statutorylanguage defining what a NAAQS means, as set out in section 109, is particularlycrucial to understanding the interaction between administrative discretion andscientific analysis. It states that national primary ambient air quality standards shallbe:ambient air quality standards the attainment and maintenance of whichin the judgment of the Administrator, based on such criteria andallowing an adequate margin of safety, are requisite to protect thepublic health.46The breadth of the Administrator's discretion is readily apparent in thislanguage. What standard represents an "adequate margin of safety" to "protect publichealth"? It is evident that many of the same questions facing Canadianenvironmental regulators are relevant to the U.S. administrator's task. Notably, theAct presumes that a "right level" of health impact can be determined. Are theeconomic costs of the health risk to be incorporated into the decision? Does thetechnological feasibility of obtaining this emission level bear on this assessment?On the basis of the description of section 109 given thus far, it appears thatthe CAA presents standard setting as a purely scientific investigation founded on the45 See CAA, s. 307(d) and discussion above in Part B.46 CAA, s. 109(b)(I). This is the standard for primary air quality. The Act also requires theAdministrator to promulgate secondary standards which "in the judgment of the Administrator, basedon such criteria, is required to protect the public welfare". (CAA, s. 109(b)(2)). In this discussion,secondary standards are not examined since for all practical purposes, they are the same. See Garrettand Winner, Part I, supra, fn 9, at pg. 10167.107data set out in the criteria document. To the uninitiated this process sounds rathermechanical. However, this seemingly straightforward process belies the complexityof the nature of the scientific analysis. As was argued in Chapter Three of this thesis,the segregation of science denies that the scientific analytical process is a political aswell as a technical one. The fallacy of this separation myth came to light in the initialefforts by EPA to establish both NAAQSs and NESHAPs. The difficulties posed bythis fallacy were also evident in the first judicial examination of a NAAQS, in the caseof Kennecott Copper Corp v. EPA47 , which will now be considered.In April 1971, in accordance with the EPA's mandate under the CAA, theEPA promulgated its first NAAQSs for six air pollutants, including sulfur oxides(sulfur dioxide).48 The promulgation of the sulfur dioxide standard was challengedin the Kennecott Copper case. In this case, Kennecott Copper Corp. brought apetition for judicial review of the EPA's national secondary ambient air qualitystandard for sulfur oxides of "60 micrograms per cubic meter - annual arithmeticmean". The essence of Kennecott's attack on the EPA standard was that there wasno adequate basis for it in the criteria document. Three objections, in particular,were raised in the petition for judicial review regarding the EPA standard: (i) it wasnot based on the underlying air quality criteria document; (ii) it was notaccompanied by a "concise statement of general basis and purpose" as required by47 Supra, fn 6.48 36 Fed. Reg. 1502 (proposed) and 8186 (final) (1971). In the proposed rulemaking it statesthat "sulfur dioxide is an indicator of the presence of sulfur oxides in the air" and thus it is used asan index for sulfur oxides. (36 Fed.Reg. 1502).108the Administrative Procedure Act49; and (iii) it was not adequately supported by astatement of the regulatory basis of action necessary for judicial review.The air quality criteria document on which the sulfur dioxide NAAQS waspurportedly based mentioned no adverse effect from the pollutant at a level below85 micrograms per cubic meter. The EPA's statement of basis and purposeaccompanying the regulation simply repeated the statutory language:National secondary ambient air quality standards are those which, inthe judgment of the Administrator, based on the air quality criteria, arerequisite to protect the public welfare from any known or anticipatedadverse effects associated with the presence of air pollutants in theambient air."The Natural Resources Defense Council (the "NRDC"), as intervenor, arguedthat the EPA's standard was supportable on the basis of the Administrator's expresslypermitted 'judgment"; in short, to protect the public health and welfare theAdministrator correctly built in a margin of safety to avoid the adverse effects notedat the 85 level.The court declined to rule on the particular issue as to whether theAdministrator exercised his judgment reasonably in picking the 60 or 85 level.Instead, the court cast the issue as a procedural matter by holding that theAdministrator must disclose the basis of his decision for the standard he selects thusaffording the court enough information to assess his actions. In examining the EPA's49 Note that this case pre-dated the 1977 procedural amendments to the CAA whichincorporated specific judicial developments interpreting the APA. The APA was applicable torulemaking activities prior to 1977.50 Kennecott Copper, supra, fn 47, at pg. 848.109procedure in this case, the court made several key observations revealing itssensitivities to the need to balance speedy disposition of the Agency's mandate withthe court's special responsibility to review air quality standards:Inherent in the responsibility entrusted to this court is a requirementthat we be given sufficient indication of the basis on which theAdministrator reached the 60 figure so that we may consider whetherit embodies an abuse of discretion or error of law.The provision for statutory judicial review contemplates somedisclosure of the basis of the agency's action.. .We are keenly aware ofthe need to avoid procedural strait jackets that would seriously hinderthis new agency in the discharge of the novel, sensitive and formidable,tasks entrusted to it by Congress... Particularly as applied toenvironmental regulations, produced under the tension of need forreasonable expedition and need for resolution of a host of naggingproblems, we are loath to stretch the requirement of a "generalstatement" into a mandate for reference to all the specific issues raisedin comments.51Accordingly, the court remanded the matter to the Administrator ordering thathe "supply an implementing statement that will enlighten the court as to the basis onwhich he reached the 60 standard from the material in the Criteria".52 This remandhad significant consequences in that it ultimately resulted in the EPA's revocation ofthe standard in 1973.53 In re-examining the scientific evidence in its criteriadocument in order to provide the requisite rationale to the court, EPA found that ithad misinterpreted the one study that might have supported its standard:51 Ibid, at pgs. 849-50.52 Ibid, at pg. 850.53 It is interesting to note that a secondary standard for SOx now exists, 40 CFR pt.50 (1991).In fact, it is the only criteria pollutant that has been regulated as a secondary standard (Garrett andWinner, Part I, supra, fn 9, at pg.10167.)110The Office of General Counsel attorney charged with constructing anexplanation for the court gave the following report to his superiors:"We were at first struck by the lack of written data supporting thelevels set forth in the standards. As we went deeper into the matterit became more and more apparent that to some extent, the lack ofdocumentation was due to lack of supporting data. ..There appears tobe no doubt that the secondary standard for SOx was incorrectlyestablished."54What were the implications of the Kennecott Copper case? One of the keylessons from this case undoubtedly must be that a procedural requirement whichforces the regulator to provide an explanatory connection between the scientificevidence and the legal standard ultimately promulgated, is a useful rule. In this case,the need to explain the regulated result revealed an error in analysis that had clearimplications to the administrative product - it could not be supported on the relevantfacts. To the extent that a requirement to disclose information and to give anexplanation regarding it creates a rational connection between the science and theregulation, it does help avoid arbitrary decision making. In addition, the KennecottCopper case is often cited by commentators, from varying perspectives (such as EPA,Congress, academics, the National Academy of Sciences, industry and environmentallitigants), as a watershed case forcing the upgrading of the scientific competence offederal regulators.5554 Melnick, supra, fn 11, at pg. 241, fn 3 therein (citing an internal EPA Memorandum of 1972).' lbid, at pg. 240. Professor Melnick is more skeptical about the court's pronouncement as adefinitive catalyst for improved science at EPA_ He explains that this matter resulted from manyforces over time. See, Ibid, pgs. 241-43 for a further elaboration. However, Melnick's explanationdoes not detract from the argument that a procedural rule requiring scientific explication is beneficialand logically it may also have this effect.111However, one of the difficulties that the Kennecott Copper case spawned wasthe implicit notion that EPA must base its regulatory actions on scientific evidence,a concept that arguably was established in the statutory scheme. This has had theunfortunate effect of creating many of the perceived problems with environmentalregulatory action such as extensive delay and even subterfuge. As Professor Melnickhas explained, the Kennecott Copper case (and other similar judicial developments)resulted in the following regulatory approach at EPA:To guard against further embarrassing reversals the EPA has adoptedan elaborate record-building process, replete with multipleopportunities for public comment and review of scientific evidence bypanels of technical specialists. The agency now spends yearsdeveloping the criteria documents on which air quality standards arebased.56The need to take agency action only after the accumulation of enormousamounts of technical information is one of the hallmarks of the U.S. administrativeregime in environmental decision making. This result is perhaps the oppositeextreme of what the court was hoping to achieve in the Kennecott Copper case. Inthat case, the court's rationale for disclosure was sound in that it posited that anexposition of the utilized information would be useful in validating the exercise ofregulatory discretion. Presumably, the result of this would be that in somecircumstances this exercise may reveal deficiencies prohibiting regulation. However,it does not necessarily follow that such disclosure should impose a regulatory burdenof epic proportions. This has been the tendency in the United States in this regard' Ibid, at pg. 241.112and, in my submission, is a case of the pendulum swinging too far. The KennecottCopper case represents the genesis of the notion in the U.S. that EPA is required tobase its action on science, rather than to explain the science. This distinction isimportant because, as was seen in Chapter Three of this thesis, it is rare that thescience does not exist, rather it is the interpretation of uncertain and imperfectscientific evidence that is at issue. This point is also illustrated by EPA's experienceunder section 112 of the CAA, to which this analysis now turns.Hazardous air pollutants were segregated out for separate regulatory controlunder the provisions of section 112. As originally drafted in 1970, section 112 wasenacted to deal with what was believed to be a narrow and manageable problem:setting stringent emission standards for a limited number of dangerous air pollutants,including carcinogens. 57 However, over time and certainly by the time of the 1990Amendments, increased scientific attention and public awareness of the cancerproblem led to increased public pressure for the regulation of air toxics. 58Section 112 established a simple two-step rulemaking process for EPA tofollow: (1) list a specific pollutant as hazardous; and (2) set a NESHAP for eachcategory of sources of that pollutant. Thus, the initial listing decision imposed anondiscretionary duty on EPA to promulgate a NESHAP in much the same way thatlisting under section 109 mandated the promulgation of a NAAQS with one57 McQuaid, supra, fn 28, at pg. 428.58 One commentator explains that the Toxic Release Inventory published in 1989, based on datagathered pursuant to the federal Emergency Planning and Right-to-Know Act of 1986, revealed for thefirst time the "actual extent of hazardous air emissions nationwide" thus adding to the momentum forsection 112 reform in 1990. (Garrett and Winner, Part II, supra, fn 9, at pg. 10245).113significant difference - no criteria document was necessary under section 112.59As most commentators of section 112 have noted, it was the statutory health-based test for setting these standards that prevented effective implementation. Whywas this so? The health-based concept for standard setting used in section 112 wasquite similar to the approach set out in section 109 of the CAA. Section 112directed the EPA to set emission standards for air toxics at a level low enough to"protect the public health" with an "ample margin of safety"60, as contrasted with thephrase an "adequate margin of safety" used in section 109. The requirement toprovide control to protect public health with an "ample margin of safety" wasinterpreted by some environmental groups, and for that matter by EPA, as requiringzero emission standards. This argument was based on the fact that carcinogenic airpollutants do not have identifiable threshold levels below which there is no risk of anadverse health effect.61 If no threshold level can be identified, then it followed thatan "ample margin of safety" was required to be set at zero. EPA's policy documenton this point stated the following:The method used to establish a margin of safety for a thresholdpollutant - setting the standard somewhere below the demonstratedeffects level as a point at which the absence of adverse health effects59 However, this did not negate the importance of scientific information. As one writer hasnoted, the determination of whether a substance was hazardous or not was based on relevant scientificdata (John 0. Graham, "The Failure of Agency-Forcing: The Regulation of Airborne Carcinogens underSection 112 of the Clean Air Act", 1985:1 Duke Law Journal 100 (1985), at pg. 108).McQuaid, supra, fn 28, at pg. 430 (citing old section 112, 42 U.S.C. s.7412 (b)(1)(B) (1988)).61 As was noted in Chapter Three, most carcinogens are "non-threshold" pollutants meaning thatthere is no identifiable "threshold" at which scientists can determine a level below which no healtheffects can be observed. Under section 112, every pollutant the EPA listed was a non-thresholdcarcinogen (as observed in the Vinyl Chloride case, infra, fn 64, at pg. 1153, fn 1 therein.)114is predicted - therefore cannot be used to set standards (other thanzero) for carcinogens under section 112, since risk of cancer is believedto exist at any exposure level greater than zero.62The perception that section 112 might require zero emission limits put theEPA in an untenable position because such standards would cause many major U.S.industries to go out of business.63 In an EPA policy document, EPA determinedthat a zero-emissions standard for non-threshold pollutants would result in theelimination of such activities as:the generation of electricity from either coal-burning or nuclear energy;the manufacturing of steel; the mining, smelting, or refining of virtuallyany mineral (eg., copper, iron, lead, zinc, and limestone); themanufacture of synthetic organic chemicals; and the refining, storage,or dispensing of any petroleum product."The reluctance of the EPA to do this was compounded by the fact that industrieswould be shut down without "assurance that [the] regulations would result in healthbenefits that are not grossly disproportionate to the costs of control."65 The resultof this dilemma, as was pointed out above, was the listing of a mere eight pollutantsin 20 years, most of which occurred before 1977, while the 1990 amendmentsidentified 189 air toxics.62 McQuaid, supra, fn 28, at pg. 430, fn 23 therein(citing EPA policy document).63 Garrett and Winner, Part II, supra, fn 9, at pg. 10245.64 Natural Resources Defense Council v. EPA 824 F.2d 1146, at pg. 1154 (citing NESHAPs; Policyand Procedures for Identifying Assessing and Regulating Airborne Substances Posing a Risk of Cancer,44 Fed.Reg. 58,642 (1979)). This decision is hereinafter referred to as the Vinyl Chloride case.65 McQuaid, supra, fn 28, at pg. 431 (citing the Comptroller General of the U.S., "Delays inEPA's Regulation of Hazardous Air Pollutants" (1983)).115What role did science play in EPA's approach to regulation under the oldsection 112? The gap in scientific knowledge appears to have had two significantconsequences. First, it permitted the playing of the "politics-of-science" game66: thepromotion of delay and self-interest. EPA delayed the passing of NESHAPs as longas it could by creating a cumbersome process of "sound science" for listing air toxicsin the first place.67 This is a manifestation of the administrative concern that actionmust be based on solid scientific facts. It has also been observed that the lack ofavailable data on health effects and "other scientific data" meant that the "agency hadto rely on studies of lab animals such as rats and mice, which had been exposed tovery high doses of a pollutant, and extrapolate from those studies the risk to humanhealth from exposure to the relatively low doses of the pollutant in theenvironment".68 As was seen in Chapter Three, this type of information is subjectto interpretation and is not free from uncertainty. For those chemicals that survivedthe listing process, the EPA rewrote the statute "either openly or, if the political costsor risks of judicial reversal were too high, silently."69These consequences are evident in the EPA's experience with attempting toestablish NESHAPs for the eight listed pollutants. As noted above, of the sevenchemicals for which emission standards had been set before 1990, 4 were remanded' Doern, supra, Chapter Three fn 64.67 Graham, supra, fn 59, at pgs. 116-123. See also, Margaret L. Claiborne, "The New Air ToxicsProgram", 7 Natural Resources and Environment 21 ( Fall 1992), at pg. 21 (attributing listing delaysand standard setting delays to the lack of data on health effects and "other scientific data").68 Claiborne, supra, fn 67, at pg. 22.69 McQuaid, supra, fn 28, at pg. 424.116by the courts." The radionuclide proceeding was particularly acrimonious and isworth examining briefly.In 1979, the EPA determined that radionuclides were carcinogenic and itlisted them as hazardous air pollutants. However, it failed to further regulate anyNESHAPs. This lack of action prompted the Sierra Club to sue EPA to take actionand the court ordered the Administrator to issue NESHAPs. The EPA Administratorinitially ignored the court's order to issue final standards. As a result, the court foundthe Administrator, William Ruckelshaus, in civil contempt71. Professor Melnick'ssummary of this situation is worth repeating in full:At first Ruckelshaus surprised everyone by refusing to obey the court.Not only was the scientific evidence unclear - it always is - but EPAestimated that the health risks were tiny and the potential cost large.Estimated risk from some facilities was one cancer death every fiftyyears, from other facilities, one cancer death every thirteen toseventeen years. Ruckelshaus was in the middle of a major effort toeducate the American public about the nature of environmental risks -to let them know that there is no such thing as a completely safeenvironment, and to force the government and the public to be honestabout the level of safety they are willing to pay for. He told the court,"Given the inevitable burdens that regulation imposes just by itsexistence, and the shortage of resources to deal with the real healthrisk both in EPA and the society at large, these risks did not appear tome to be large enough to warrant regulation." The judge respondedby calling Ruckelshaus a "scofflaw", describing his actions as"outrageous", and expressing shock that such a "responsible person"(and a lawyer to boot) would so cavalierly disregard an order of theU.S. District Court. After being found in contempt of court,Ruckelshaus published regulations that would have virtually no effecton radionuclide levels. EPA estimated that it spent $7.6 million in70 Supra, fn 34. The four standards subject to remand were: vinyl chloride, radionuclides,benzene (equipment leaks) and asbestos (demolition procedures) (as noted by McQuaid, supra, fn 28,at pg. 431).71 See Sierra Club v. Ruckelshaus 602 F.Supp. 892 (N. D. Cal. 1984).117contract funds and 150 staff-work years on this regulation.72Another case that exemplifies the interface of science and regulatory discretionunder section 112 is the EPA's twelve year saga of rulemaking in connection with thesubstance vinyl chloride. This rulemaking was ultimately tested in NRDC v. EPA73,known as the Vinyl Chloride case, in which the D.C. Circuit confirmed that the EPAwas not required to adopt a zero exposure standard in promulgating NESHAPs.74Vinyl chloride is a gaseous synthetic chemical used in the manufacture ofplastics and is a strong carcinogen. In 1975, EPA issued a notice of a proposedrulemaking which on its face gives a fairly explicit explanation of the EPA's policyanalysis of the scientific data. The scientific data included both rodent experimentsand human exposure studies. In the notice, the EPA asserted that the scientific datalinked vinyl chloride to liver cancers and other disorders and that "reasonableextrapolations" from this data suggested "that present ambient levels of vinyl chloridemay cause or contribute to such disorders".75 The EPA noted that vinyl chlorideis a non-threshold pollutant and thus concluded that in such cases EPA assumes, in72 Melnick, supra, Chapter One fn 38, at pgs. 250-51. This battle has not ended. In 1989, EPAissued final rules for radionuclides which were the subject of a pending appeal in the D.C. CircuitCourt and "EPA is already reconsidering major elements of the radionuclide regulations". (Garrettand Winner, Part II, supra, fn 9, at pg. 10246, fn 14 therein.)73 Supra, fn 64.74 The chronology and substance of this rulemaking as described in the next few paragraphs isbased on the court's description of EPA's action as set out in the Vinyl Chloride case and a review ofthe Federal Register notices of the relevant rulemaking activities: 40 Fed.Reg. 59,532 (1975); 41Fed.Reg. 46,560 (1976); 42 Fed.Reg. 28,154 (1977); and 50 Fed.Reg. 1182 (1985).75 Vinyl Chloride, supra, fn 64, at pg. 1148.118the absence of strong evidence to the contrary, that "there is no atmosphericconcentration that poses absolutely no public health risk".76In the face of this scientific analysis, EPA concluded that it was faced with twoalternative interpretations of section 112. Either it could set the standard at zeroemissions on the basis that a "zero emission limitation will be the only emissionstandard which would offer absolute safety"77 or it could use a technology-basedstandard based on the "best available control technology", or "BAT". In its final ruleissued in 1976, EPA opted for the BAT standard, setting the general emission levelat 10 ppm, because it believed that it would "produce the most stringent regulationof hazardous air pollutants short of requiring a complete prohibition in all cases."78As noted previously, EPA simply found the regulatory consequences of a zeroemission standard untenable."The BAT approach was challenged by the Environmental Defense Fund whichthreatened to sue EPA on the ground that section 112 prohibited the Administratorfrom considering costs and technology in his standard setting. This suit was settledupon EPA's agreement to propose new and more stringent vinyl chloride emissionsand to establish an ultimate goal of zero emissions. Pursuant to this settlement76 Ibid.77 Ibid.78 lbid, at pg. 1149.79 In particular, in the Vinyl Chloride rulemaking, the EPA's proposed notice indicated that theEPA found this alternative "neither desirable nor necessary" because "complete prohibition of allemissions could require closure of an entire industry," at a cost the EPA found "extremely high forelimination of a risk to health that is of unknown dimensions." (Ibid, at pg. 1148)119agreement, EPA again issued proposed regulations in 1977 which sought to imposea stricter standard of 5 ppm (as opposed to the 10 ppm originally proposed in 1975)and by establishing an aspirational goal of zero emissions. The result of theseproposed stricter standards was that EPA took no further action for seven years. Tenyears after its first proposed rule, in 1985, EPA withdrew the proposal and returnedto a proposal similar, but for minor revisions, to the 1976 standards. EPA explainedthat it was abandonning the 5 ppm standard because it imposed "unreasonable" costson industry and that no control technology "has been demonstrated to significantlyand consistently reduce emissions to a level below that required by the currentstandardum of 10 ppm.As a result of this action, the NRDC petitioned for judicial review arguing thatthe Administrator must regulate under section 112 exclusively on health-relatedfactors and that any other considerations amounted to actions that were arbitrary andcapricious. Alternatively, the EPA argued that in the face of scientific uncertainty,it is permitted to set emission levels at the standard which is the lowest levelattainable by BAT (whenever that level is below that at which harm to humans hasbeen demonstrated). The court rejected both positions and instead posited its owntwo-step analysis for EPA to follow based on its statutory interpretation of "protectingpublic health with an ample margin of safety". First, said the court, EPA was todetermine, on health considerations alone, the minimum level of control necessaryto protect public health. In the court's words: "[Section 112] requires the80 Ibid, at pg. 1149.120Administrator to make an initial determination as to what is 'safe'".81 Interestinglyenough, the court expressly observed that "safe" did not mean "risk free"82 but it didmean setting a standard that resulted in an "acceptable risk to health" withoutconsidering costs or technological feasibility.83 With respect to determiningacceptable risks, the court advised the EPA to "determine what inferences should bedrawn from available scientific data and decide what risks are acceptable in the worldin which we live."84 Presumably, on the court's reasoning, costs and technology andany other non-health factors, are divorced from real world considerations ofacceptable risk.After this determination, EPA was to identify whatever level of control wasappropriate to provide "an ample margin of safety". At this stage, EPA was free toconsider health effects, economic factors, technological feasibility, scientificuncertainty, and other relevant factors. The "ample margin" language, as the courtexplained, requires the exercise of discretion: "This language permits theAdministrator to take into account scientific uncertainty and to use expert discretionto determine what action should be taken in light of uncertainty."85What has the court's analysis of the NESHAPs mandate meant for EPA?Given the 1990 Amendments and their establishment of a specific list of 189 air toxics81 Ibkl, at pg. 1164.82 Ibid (citing the Benzene case which was discussed in Chapter Three of this thesis).83 Ibid, at pg. 1165.84 Ibid.85 lbid, at pg. 1165 [emphasis added].121to be regulated on a technology-based approach, this question is, for the mostpart86, moot today. However, after the Vinyl Chloride decision and prior to 1990,two final NESHAPs were adopted for various benzene and radionuclide sources. Itis instructive to briefly examine an analysis of these rules because of what it revealsabout the continuing struggle to set standards and what it might say aboutenvironmental standard setting in Canada.One analyst has stated that the benzene and radionuclide rules indicate thatthe EPA "has used this discretion silently to consider non-health factors in itsacceptable risk determinations."87 In other words, EPA has brought cost andfeasibility factors in through the back door. This is because, as was pointed out inChapter Three of this thesis, scientific-based risk assessment determinations simplycannot be made on a value-free basis absent considerations of costs and other factors.For example, in the post-Vinyl Chloride benzene standards, EPA chose a"presumptively acceptable level of risk" to the maximum exposed individual, over alifetime, of 1 in 10,000 (meaning that their regulatory standard would be premisedon the basis that 1 out of 10,000 people could be expected to die of cancer). As theregulation explains this number was selected from a survey that produced individual86 This is a qualified comment because some of the old issues under section 112 may continueto haunt the application of the new section 112. As one commentator observes: "By shifting fromhealth-based to primarily technology-based standards, the agency may avoid many of the problemsencountered under the old scheme. Even under the new scheme, however, old issues may be thesubject of renewed debate, including how to calculate the risk to public health without the necessaryscientific data and how to factor in costs when establishing emission standards." (Clairborne, supra,fn 67, at pg. 56).87 McQuaid, supra, fn 28, at pg. 438. See McQuaid's analysis at pgs. 438-43 demonstrating that,based on the EPA's rationale in its final benzene and radionuclide rules, the EPA continues to weighnon-health factors in establishing "acceptable risks" in spite of the Vinyl Chloride case.122risks of between 1 in 10 and 1 in 10,000,000. The EPA concluded that no singlefactor by itself could define acceptabilility in all cases and chose the level of riskpresumed to be common "in the world in which we live"; that is, 1 in 10,000. Asone writer has noted: "EPA could have chosen a[] [maximum individual risk]anywhere in this range, thus assuring the flexibility to weigh costs and technologicalfactors when it adds an ample margin of safety to the acceptable risk level."89The benzene regulations also explain that the presumptive level is not a brightline; it is simply a presumption that can be adjusted on the basis of "other healthmeasures". The regulations expressly state that other health measures include suchintangibles as science policy assumptions, estimation uncertainties in the riskestimates, and the weight of the evidence of human health effects." These threeintangible factors allow the EPA to justify an acceptable risk of more than 1 in 10,000in the first step, again making "room for consideration of cost and technologicalfeasibility in the second, the 'ample margin of safety' step".9'The point illustrated by these observations is simple - acceptable risk isinherently connected to these other factors and the continued segregation of health-based factors perpetuates the myth of the separateness of science. This segregation,in turn, appears to bolster the overall rationality of the rulemaking, when ironically88 Ibid, at pg. 439, fn 81 therein (citing the 1989 Benzene Standards).89 Ibid.99 Ibid, at pg. 440.91 Ibid.123in fact, it disguises the important policy choices in the decision.D. ConclusionsThe EPA's regulatory experience with standard setting under the Clean Air Actechoes the basic point of Professor Melnick's remarks at the outset of this chapter;that is, EPA is given a herculean task and then is blamed for the failure due to itsbureaucratic paralysis or incompetency. The CAA is a particularly intriguing exampleof the regulator's task in environmental law because it captures the tough issues -the lack of scientific understanding with respect to carcinogens and thenonsegregation of costs and technology from the realities of environmental standardsetting. It also exemplifies the results - extensive periods of delay or inactivity (evenresulting in a contempt order against the Administrator in one case!) and endlessdebates and posturing over acceptable risk, leading to conclusions of administrativefailure resulting in legislative "cure" (eg. the listing of the 189 air toxics in section112). Understanding the nature of the underlying scientific anaylsis helps to shedlight on the administrative dilemmas and can suggest ways to more appropriatelycope with environmental regulations. One answer may be to improve legislativemandates by increased recognition of the policy choices that must be made but thisseems somewhat unrealistic in the era of the modern administrative state.In this thesis it has been argued that the disclosure of scientific informationand a corresponding duty to explicate the use and reliance thereon will help to distillthe regulator's role thereby fostering a more transparent societal debate about the124values that are at stake in environmental regulation. In this chapter, the U.S.experience with scientific disclosure and explanation was examined in order to makethe case for such a procedural rule in Canada. What can be learned from the U.S.through the lens of the CAA experience?In general, it was seen that the advantages of scientific disclosure andexplanation are:1. The exercise of forcing a regulator to explain thecorrelation between the scientific evidence and theregulated result may reveal genuine deficiencies inanalysis. Witness the Kennecott Copper case.2. This focus may also help to upgrade the regulator'sscientific/technical proficiency. This ability will surelyhelp a regulator to utilize scientific information moreintelligently and given the complexities of thisinformation, this is a good result.3. Disclosure helps interested parties assess what theregulator has done with the information; how he hasfilled in information gaps and exercised his discretion.This will help expose the factual premises of a decisionto public scrutiny and for those wanting to test theadministrator's role, it will more readily facilitate judicialreview by providing a record of what has been done.125On the down side, the CAA experience indicates that the need to understandscientific complexities can, in the administrative context with its need for rationality,turn into reliance on scientific evidence that simply does not (and may never) exist.This has the following consequences:1. It may promote delay and/or bureaucratic fence-sittingon troublesome political issues by insisting on "furtherstudy" and scientific information to back up decisions.To some, this approach is one that simply waits for the"body count".2. It may also shift policymaking further underground bydisguising it behind the veneer of science. This isillustrated in the EPA's rulemakings that followed theVinyl Chloride case. Such results achieve the completeopposite of what is aimed at by a "better process".What does all this mean for the design of a Canadian procedural rule aboutscientific disclosure and explication? That is the subject of the next and closingchapter of this thesis.126CHAPTER FIVECONCLUDING REMARKSClarity and fullness of explanation are central to the legitimacy ofdecisions affecting individual health and safety.'At the outset of this thesis, it was stated that one of the challenges facingenvironmental law is to "design a regulatory process that captures the knowledge ofscience while safeguarding the proper domain of political choice."2 In order toanswer this challenge, this discussion has journeyed through the maze of environ-mental regulatory discretion and considered its interface with scientific knowledge.Pollution control laws are characterized by the delegation of amplediscretionary powers to regulators. As a result, it has been argued that the designand implementation of the law primarily occurs at the administrative level, a level ofgovernment at which there is limited means of ensuring that decisions are made forgood reasons and that they meet the underlying policy objectives of the statute,pursuant to a process that is fair and open to external public scrutiny. For politicaland practical reasons, it can be expected that discretionary delegation will continueas a feature of Canadian environmental law. The exercise of this discretion is shapedby a confluence of complex, and often competing, economic, political and socialforces that merge in this regulatory arena. It is within this context that scientific1^Yellin, supra, Chapter Three fn 67, at pg. 1324.Supra, Chapter One fn 42.127information enters the fold.With respect to science, this thesis has argued that scientific information andanalysis is a key influence on the exercise of regulatory discretion: it informs it, itconstrains it, but it also confounds it. From a legal perspective, what makes scienceso singularly fascinating is the perception that it is grounded in "fact". It brings withit the norms and imperatives of objectivity and rational evidence. In the context ofan administrative process seeking to ground its decisions on "rationality", science canbe deceptively seductive. Consequently, the process of environmental standard setting,as it currently operates, encourages the use of science as a sword or a shield; itbecomes the instrument, not the source, of conflict, as astutely observed by onewriter:To the extent that decisions derive from the exercise of discretion, theyare neither predetermined nor immutable. They may be influenced bypersuasion or the exercise of political power. Frequently, they can bereversed...But scientific and engineering knowledge is compelling on itsown. It is not subject to change through the political process. Actionsbased on knowledge are, or seem to be, immutable.Both decision-makers and advocates therefore have strong incentivesto claim that their actions and arguments are grounded in knowledge,not interest or values, and can often thereby muster support...Theresult is a special brand of politics in which the pretense of knowledgeyields power.3This acknowledgement is not meant in any way to denigrate scientificinformation. Rather, what is being said is that science is simply not a neutral factorin the environmental dialogue. If it was, surely a consensus on scientific informationwould be much more common than is typically the case. Yet one of the constant3 Greenwood, supra, Chapter One fn 36, at pg. 252. [emphasis added].128themes evident in the various regulatory examples examined in this thesis, fromalachlor to benzene to vinyl chloride, is that the battle lines are drawn around thescience. In each case, the scientific evidence was at issue precisely because of howit was interpreted to achieve the objectives of vaguely worded statutes. What doesthis mean for the shape of environmental laws?Many commentators who have considered the relationship betweenenvironmental regulatory demands and science have observed that it raisesimplications about the role of various institutions: the legislature, the administrationand the judiciary. A wide variety of solutions, all of which at some level addressinstitutional roles, have been suggested to reform environmental decision makingprocesses in order to account for scientific complexities and uncertainties. Forexample, some recommendations seek to increase the regulator's reliance on scientificexpertise by, for example, the creation of expert panels4 or "science courts" toadjudicate scientific disputes.5 These reformers can be categorized as members of4 Expert panels or committees have infiltrated the decision making processes in many cases ofenvironmental regulation. For example, in Canada the main federal law dealing with the control oftoxic substances contemplates the establishment of advisory committees, which presumably includestechnical/scientific committees given the nature of the statutory scheme (Canadian EnvironmentalProtection Act, R.S.C. 1985, c. 16 (4th Supp.), s. 5). In the United States this notion has beeninstitutionalized at EPA through the creation of the Scientific Advisory Board (the "SAB"). The SABwas authorized by Congress in 1978 to provide the EPA administrator with independent, expert adviceon a wide range of issues. For a fuller discussion of the SAB's role see, Graham, supra, Chapter Onefn 36, Chapter Two therein."Science courts", proposed specifically to deal with factual technical issues, have not caughton but a lively academic debate ensued over them in the late 70's and early 80's in the U.S. For acomprehensive survey of the literature on science courts, see, for example, Yellin, supra, fn 1, at pg.1307 fn 35 therein.129the separatist school of thought.6 Other reform suggestions which have been madecan be classified as more integrative perspectives, or "non-separatist".7 These includereforms to increase education about environmental risks and to promote "scientificliteracy".8 In his last term as EPA Administrator, William Reilly was determined toeducate the American public about environmental risks using science as a foundationof understanding:As we gear up to deal with the environmental problems of the 1990sand beyond, I think the time has come to start taking aim before weopen fire. In short, we have to find a better way of settingenvironmental priorities. And this is where sound science comes in.Sound science can help us establish priorities and allocate resourcesbased on risk, to the extent that statutory mandates allow. Obviouslythere are a number of other important factors that go into shaping ourpriorities - public values and perceptions, economic constraints - butsound science is our most reliable compass in a turbulent sea of sirensongs. Science can lend much-needed coherence, order and integrityto the often costly and controversial decisions that must be made.9Still others have suggested adopting the goal of "zero pollution" as a way of avoidingthe prickly risk determination questions entirely.In this thesis, a middle ground is adopted; it is one that acknowledges the"separateness" of science as an expert discipline but seeks to integrate it into the6^Recall that the "separatist" school of thought refers to those who view science as "separate"from politics, law and ethics. See discussion, infra, at Chapter Three, Part C.7^The "non-separatists" do not believe in separating science, supra, fn 6.8^One writer, Dorothy Howell, has suggested that scientific illiteracy has disenfranchised societyin the U.S. For a proposal on the reenfranchisement through the promotion of scientific literacy, seeDorothy J. Howell, Scientific Literacy and Environmental Policy: The Missing Prerequisite for SoundDecision Making, (New York: Quorum Books, 1992).9 William K Reilly, EPA Administrator, "Aiming Before We Shoot: The Quiet Revolution inEnvironmental Policy", (Global Environment Change Report; Policy, Science and Industry NewsWorldwide, Cutter Information Corp., (Document #306), September 1990), at pg. 4.130participatory processes of environmental decision making. It has been argued thatregulators need to openly address the assumptions, methodologies and gaps relatingto the science behind what they are doing and why. In particular, there should be anexpress statutory obligation on environmental administrators to disclose and toexplain, both before and after a regulatory decision, the scientific analysis used tosupport the exercise of their discretion. What might such a duty look like and whatwould it achieve?The discussion of the U.S. experience under the Clean Air Act helped toillustrate how a legal rule about the disclosure and explanation of science mightoperate. It was seen that when the EPA proposes a regulation under the CAA, itmust provide a statement of basis and purpose, including a summary of the factualdata on which the rule is based, and the methodology used in obtaining and analyzingthe data.1° Also, pursuant to the statutorily entrenched notice and commentprocedures of the CAA, this regulatory explanation is subject to the scrutiny ofinterested parties and the courts. This administrative framework has had somesuccesses and some failures.11 The good aspects of this U.S. experience can be10 For a slightly more comprehensive version of this requirement, see the proposed U.S.Regulatoty Reform Act of 1981, Senate bill 1080. This Act was never passed but it is a good exampleof statutory language to address scientific/technical disclosure. Section 3(c)(1)(E) provides that anotice of proposed rulemaking shall include:"a description of the data, methodology, reports, studies, or other information uponwhich the agency plans to substantially rely in the rule making, and of the purposesfor which the agency plans to rely on such information, including an identificationof the authors or sources of such information." (Ibid).ii For an amusing parody on the regulatory hurdles and the process excesses facing EPA whenit regulates a potentially hazardous substance, See Douglas M. Costle (ex-Administrator of the EPA),"Brave New Chemical: The Future Regulator), History of Phlogiston", 33 Administrative Law Review195 (1981).131tailored to the Canadian regulatory system, while the bad aspects can be left behind.In Canada, the "due process" parts of the U.S. approach, the disclosure andexplanation of scientific data through notice and comment procedures, are amenableto the trends in increased public participation in environmental decision makinggenerally.12 Similarly, the institutional excesses of the U.S. system do not exist inCanada and are not likely to be duplicated simply by virtue of making improvementsto the regulatory process. The generation of an evidentiary record on which to testregulatory discretion does not by corollary mean an extensive accumulation ofinformation to fend off judicial activism. In fact, there is a good case to be made forthe argument that by improving the process up front there will less dissatisfactionwith the process and thus less need to involve the courts in dispute settlement.A legal duty imposed on environmental regulators to disclose and to explaintheir scientific analysis will significantly improve the process of environmentalstandard setting by making it more open and legitimate. A statutory duty, rather thana discretionary policy dealing with process reform which really amounts to self-regulation, is needed. It will impose greater accountability on decision makers at theadministrative level, where it should be. Any requirement to disclose information andto give the reasons for a decision will force the decision maker to be more thoughtfulin his analysis. This will result in several benefits: a more careful reflection of theadministrative task; more diligence in identifying and specifying both statutory12 Evidence of informal efforts to involve stakeholders in environmental regulation and ofreform proposals to open up environmental decision through notice and comment procedures werenoted above in the discussions in Chapters One and Two, infra.132objectives and relevant information; greater care in applying the rationale toindividual circumstances; and the direction of arguments by interested parties moreefficiently. Disclosure and explanation will also improve the integrity of the processby avoiding the temptation to use science to veil politics or economics. This will thusremove some of the ambiguity or uncertainty as to why a decision was made. Inaddition, the requirement to explain the scientific analysis, will help to establish acommon and accessible information base about the science used in environmentaldecisions. This will help harness and centralize a valuable pool of knowledge. A spinoff effect of this may also be to provide a better focus for the tailoring of scientificresearch and development. This may also lead to a consideration of institutionalsupport systems, such as the Science Advisory Board. All of these benefits areconsidered important contributions to improving the democratic legitimacy of theenvironmental regulatory system in Canada.The concept of a specific legal duty to give the supporting reasons for aregulatory decision is neither revolutionary nor surprising coming from a lawyer. Infact, the idea is not entirely foreign to the operation of some aspects of BritishColumbia's environmental laws. 13 The argument in this thesis is essentially an effortto improve the process of environmental decision making in a way that is palatablewithin the current framework of Canadian environmental law. It is also limited forthe purposes of this thesis to a singular component, science, of a multi-faceted13 For example, section 4 of the B.C. Environment Management Act, supra, Chapter One fn 22,empowers the Minister of the Environment to issue environmental protection orders which must"state the reasons for making the order".133decision process. It is a mere tinkering at the edges which emanates from the viewthat incrementalism14 is the most realistic approach to achieving change in Canadianenvironmental policy and law. Furthermore, it must be appreciated thatimprovements in the legal system are only part of the formula for overall "soundgovernance"15 in environmental protection -- political willpower, betterunderstanding of risks and increased resources are also of key importance.Of course, any argument seeking process reform is in danger of the usualcriticisms about "processitis". It is said to add to an already overburdenedadministrative process thus increasing public costs and furthering delays. The viewpresented here is that although matters of efficiency and cost are important, thebenefits from the duty to disclose and explain the science supporting the regulatorydecision outweigh these concerns.In the final analysis, the essence of environmental regulatory decisions requiresa clear understanding of what balance, if any, is being struck between competingvalues. This recognition is important because it has enormous implications todeterminations about how society's limited resources will be used to achieveenvironmental protection. A legal rule about the disclosure and explication ofscientific information seeks to squarely address the government's role in dealing with14 "Incrementalism" is used here to mean the idea that change is best effected by marginaladjustments to existing processes.15 This is a phrase used by Christopher F. Edley in his book, Administrative Law: RethinkingJudicial Control of the Bureaucracy, supra, Chapter Two fn 11. The term encompasses what areconsidered to be the goals of regulatory government: "good institutions, decent processes, and justoutcomes" and also means the prevention of mistakes and the increased likelihood "that officials willpursue the commonweal efficiently and effectively." (lbid, at pgs. x-xi).134these conflicts by making more transparent the risk analysis aspect of environmentalregulation. If Canadian environmental protection law is to obtain its objectives andto be respected, the inevitably tough choices that the government must make mustbe made through open and legitimate processes. This is, after all, what we expectfrom our democracy.135BIBLIOGRAPHYBOOKS AND REPORTSBerman, Morris. The Reenchantment of the World. (Ithaca: Cornell University Press,Bantam Edition, 1984; original publication, 1981).Boardman, Robert, ed. 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Pollution control, administrative discretion and science: a journey through the maze of environmental law
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