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How they built the ark : comparing federal endangered species legislation in the United States and Canada Illical, Mary Teresa

Abstract

Although both Canada and the US have seen the need to introduce endangered species legislation, the two countries' statutes are strikingly different. Enacted in 1973, the US Endangered Species Act (ESA) is notorious for its stringency, exemplified by non-discretionary provisions backed by a citizen suit provision. For its part, after three failed attempts, Canada finally passed its Species at Risk Act (SARA) in 2002, almost thirty years after the ESA. While technically providing for the protection of all species anywhere in Canada, SARA is a much weaker Act on paper than the ESA in that the former does not compel the government to protect species either through a citizen suit provision or through an emphasis on non-discretionary language. The main research question that follows is: why do Canada and America's federal endangered species legislation differ so much in stringency and scope? In answering this question, this thesis finds that the differences in public opinion, institutions, actors, and cross-national lesson drawing in the two countries are consistent with the policy differences between the ESA and SARA. The high public concern for the environment in the US in the early 1970s provided the government with electoral incentives to enact strong legislation, while the low salience of environmental issues in Canada in the late 1990s did not give the Canadian government that same incentive. Institutional differences reinforced this effect. Institutional changes in the US around 1970, made possible through the separation of powers and federal system, paved a new path for Congress to write a stringent, non-discretionary ESA. In contrast, Canada's fusion of legislative and executive functions, decentralized federalism, and overlapping jurisdiction of the environment yielded a discretionary statute. The key difference in the role of actors was the lack of protest by the US business and agricultural community to a tough legislation, which contrasts with the active lobbying by their Canadian counterparts. American scientists and environmental groups also had more influence in shaping the ESA since there was no substantial opposition in the US to a prohibitive policy. However, unique to Canada was the Species at Risk Working Group, a small coalition of environmental and industry groups who brokered a remarkable consensus, including recommendations for stewardship and incentives for landowners. There was also more extensive consultation with and lobbying by aboriginal groups in Canada than in the US. Cross-national lesson drawing reinforced the institutional and interest group dynamics. Most notably, industry and landowner groups were much more active in Canada because they were able to draw negative lessons from the controversial US experience and thus lobbied to avoid a legalistic, ESA-style law. Indeed, Canadian policymakers themselves wanted to veer away from an adversarial US approach. For their part, Canadian environmentalists and scientists who were knowledgeable of the ESA learned both positive and negative lessons from the experience south of the border. The five chapters of this thesis elaborate on these findings and provide a comprehensive explanation of the policy differences between the two countries' legislation.

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