Your parents may have told you: “If you make a mess, you have to clean it up.” In a nutshell, that is the basis of the “polluter pays” principle.  There is a lot wrapped up inside the simple principle of polluter pays.  The roots of the principle come from economics rather than from environmentalism.

The idea is that an organization that damages the environment should pay to fix the damage it causes. In some cases the polluting organization might also be required to pay money to people that it has harmed.  Since all costs that a commercial organization pays eventually get passed on to its consumers, cleanup costs will raise the prices of the goods they are selling. If the laws of economics hold true, those higher prices will cause rational consumers to seek substitute goods and then the demand for the polluting goods will fall. In theory, the rational profit maximizing organizations that had been causing the harm will respond by finding ways to produce their goods that don’t pollute.  Their costs will come down, the price of their goods will fall and the organization will become more competitive. If they don’t react in this way, they might find themselves out of business.

The “polluter pays” principle helps us recognize the true costs of things.This idea of ‘cost internalization’ is part of international environmental law. It was recognized in Principle 16 of the 1992 United Nations Rio Declaration which said “National authorities should endeavour to promote the internalization of environmental costs and the  use  of  economic  instruments,  taking  into  account  the  approach  that  the  polluter  should,  in principle,  bear  the  cost  of  pollution,  with  due  regard  to  the  public  interest  and  without  distorting international trade and investment.” Member states need to pass ‘enabling legislation’ at home before the Declaration has any effect within their borders.

Canada has done that. Many Canadian laws that protect our air, water and land incorporate the polluter pays principle. As just one of many possible examples, section 2 of the Alberta Environmental Protection and Enhancement Act says that one of the purposes of the Act is to recognize “the responsibility of polluters to pay for the costs of their actions”. It puts that purpose into action in sections 108 and 109 by stating that that no one is allowed to release substances into the environment at a rate greater than what they have permission to do or at a rate that causes “significant adverse effect”.  If they do, then section 112 says they have a duty to repair, remedy and confine the effects of the substance, remediate, manage, remove or otherwise dispose of the substance to prevent an adverse effect, and then to restore the environment.

Markets work best when people can base their purchasing decisions on the true costs of things.The polluter pays principle helps us recognize the true costs of things.  “Externalities” are costs of producing goods that are paid by someone other than the producer and consumers of the goods.  Environmental externalities might be paid by identifiable groups; for example a pulp mill that is allowed to pollute a river shifts the cleanup costs to the municipalities downstream that are forced to increase spending  on water treatment and to cover that spending by increasing taxes paid by residents. The price of the pulp and paper being produced does not reflect its true costs. Environmental externalities might also be spread more broadly to society as a whole. For example, if production of a certain kind of product increases disease or leads to climate change, costs go up for society as a whole.  Again, the price of the goods being produced does not recognize their true costs. The cost of externalities may also be spread to future generations when environmental cleanup work is not done while the companies producing the harm are still in business. Externalities provide a subsidy, often hidden, to the producers and consumers of some goods at the expense of someone else.

Markets work best when people can base their purchasing decisions on the true costs of things. Sometimes, there may be valid political reasons to openly subsidize the production of goods. We may want to protect jobs in an important industry or we may want to encourage certain types of behaviour.  But where pressing social justifications for subsidies do not exist, externalities let some people benefit at the expense of others. The people paying some of the hidden costs of the goods may not even be aware of what is happening.

It is interesting to think about the polluter pays principle in the context of the never-ending debate about “How much regulation is too much?”  The principle on its own is not something that can be directly applied by the courts. It has to be brought to life through statutes and regulations. Acceptable levels of release of substances into the air, water or onto land must be set and then tracked. That requires reporting, scientific monitoring, record keeping and enforcement, all of which must be based on regulation. This sort of protective regulation protects people and allows economic decisions to be made by producers and consumers on the basis of true costs. It should not always be thought of simply as “red tape”. There is a balance to be struck and different politicians would draw the line in different places.

Principle 16 of the Rio Declaration also mentions promoting the use of economic instruments. That is what I am going to cover next time.

Last issue we talked about sustainable development. This time the topic is the precautionary principle.

Most human activity has risk. When we are deciding whether we should do something, we balance the risks against the possible rewards.  Risk has two parts. First, there is the probability that something bad will happen. Second, there is the seriousness or severity of that result.  The two parts have to be considered together. A fifty percent probability that we will break a fingernail while fixing a light switch might be acceptable. A one percent chance that we will burn down the house doing the same task when we don’t know how probably isn’t.

Decisions about which risks are acceptable in a society are always going to be political. Risk can be internal, where the harm will happen directly to us or our own interests. Risk can also be external. If harm occurs, it will be to someone else or to society as a whole. Without the protection of regulation, people (and companies) are more likely to disregard the risk of an activity if the possible harm will happen to someone else. To economists these public harms are called “negative externalities”. Air pollution from factories drifting across borders, fish dying downstream from a plant that pollutes the river, and migration routes of animals being altered by transportation corridors are all examples of negative externalities.  To economists, negative externalities can be a sign that competitive markets aren’t working properly and that regulation might be needed.

For many decisions that have risk, people are free to take chances unless there is a law that says they can’t. For example, we are all free to sink our life savings into a legal business venture even if it has a low probability of success.  If someone wanted to stop us, they would have to prove that our activity is against a law or at least, harmful to others. We wouldn’t have to prove anything.

Because the natural world is complex it can be hard, or even impossible, to prove in advance either the probability or severity of possible harm from taking risks. In many cases we simply don’t have the scientific knowledge or the data to accurately predict what could happen if we do something.  And for the really big things, the results could be catastrophic and impossible to repair.

To deal with this, the precautionary principle turns the calculation around – someone proposing an activity has to prove that it would not cause an unacceptable level of harm before they do it. Where the precautionary principle applies, governments have a duty to protect the public interest through regulation even when there isn’t full scientific certainty that harm will occur. The Rio Declaration (the 1992 Report of The United Nations Conference on Environment and Development) used these words: “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.  When scientific information about environmental effects is incomplete, extra caution is needed.  Prevention of harm will always be easier and cheaper than remediation after harm has been done.

To deal with this, the precautionary principle turns the calculation around – someone proposing an activity has to prove that it would not cause an unacceptable level of harm before they do it. The Supreme Court of Canada has cited authors who state that the precautionary principle has become a norm of international law.  The Federal Court of Canada has applied the principle when considering the regulation of fish farms. The principle has been recognized in various forms in international agreements. It has been incorporated into some Canadian legislation including the Preamble to the federal Oceans Act, section 2(1)(a) of the  Canadian Environmental Protection Act, 1999, section 9 of the  Federal Sustainable Development Act, the Preamble of the Canada National Marine Conservation Areas Act and section 4(2) of the Canadian Environmental Assessment Act, 2012.   Although it is not universal, it has been incorporated into many provincial statutes, regulations and policies dealing with protection of the environment.

Arguments have been raised that broad application of the precautionary principle can result in gridlock with no decisions ever being made. Applying the principle does not provide automatic, easy answers about which risks should be taken and which ones should be avoided.  It just says a serious risk shouldn’t be disregarded only because there is a lack of scientific certainty about the likelihood or severity of harm. Decisions about which risks are acceptable in a society are always going to be political.

Next time we will talk about the important concept of “polluter pays” in Canadian environmental law.”

In the next few columns I am going to talk about some concepts that are important to understanding environmental law. The first is the idea of sustainable development. A quick search of the CANLII website shows the phrase appears in Canadian federal and provincial legislation 359 times and in published court decisions 237 times.

In 1987  an important United Nations commission (the “Brundtland Commission”) defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”   This definition is often used more or less word for word in legislation (in federal statutes it appears in the Sustainable Development Act, the Auditor General Act, the Department of Natural Resources Act and the Canadian Environmental Protection Act among others).

Another aspect of sustainable development is the idea of promoting “inter-generational equity” – making sure that enough of the earth’s resources are left to allow future people to meet their needs. What sustainable development means to a regulator, to an industry or to a member of the public depends to a great deal upon whether the emphasis is on the first word or the second. One view is that there is meant to be a great deal packed into the simple phrase. The other view is that the phrase is malleable to the point of being meaningless because it tries to achieve an impossible balance between anthropocentric (people come first) and ecocentric (the natural world comes first) visions for the world.

The definition emphasizes that there is a relationship between sustainability and development. Early on, discussions were often about trade-offs and about whether striking a balance between economic and environmental goals was even possible. More recently, discussions have emphasized the complex and interconnected nature of everything on earth. If fish populations disappear because of overfishing or destruction of habitat, then the tourism industry will suffer. If we farm in ways that ruin the soil, farmers will fail, and people won’t be fed. If even the more modest climate change predictions come true, many economies will suffer. The Brundtland Commission report states, “the ‘environment’ is where we live; and ‘development’ is what we all do in attempting to improve our lot within that abode. The two are inseparable”. One of the purposes of using the language of sustainable development is to remind us of that inseparability. Those seeking to use the earth’s resources are reminded that they are not infinite. On the other side, people are reminded that economic activity is needed for human survival.

What is to be developed and what is to be sustained?  One early study titled “Our Common Journey: A Transition Toward Sustainability” identified development possibilities such as child survival, life expectancy, education, equity, equal opportunity, wealth, production, consumption, societal institutions and society.   Things to be sustained included the earth, biodiversity, ecosystems and the services they provide, resources, our communities and cultures. In 2000 the United Nations marked the millennium by adopting eight goals (the “Millennium Goals”) including ensuring environmental sustainability (goal 7) and developing a global partnership for development (goal 8). In Canada, federal (and some provincial) departments must have regularly updated sustainable development strategies. There have been many other efforts to develop general goals, specific targets and methods of measurement. Some have been very local (for example, reducing water use in a community) and some have been on a grand, world-wide scale, such as eliminating hunger.

What sustainable development means to a regulator, to an industry or to a member of the public depends to a great deal upon whether the emphasis is on the first word or the second.Another aspect of sustainable development is the idea of promoting “inter-generational equity” – making sure that enough of the earth’s resources are left to allow future people to meet their needs. This is a quite profound idea – creating obligations to human beings who don’t yet exist and thereby giving them rights. For many people in society, this feels like the proper thing to do, especially thinking about our own children or grandchildren. It is, however, philosophically complex. Thinking about sustainable development gives us the opportunity to think about what rights are, where they come from and who can hold them.  There are no easy answers.

An obvious link between sustainable development and environmental law is that implementing policies, strategies, goals and targets most often requires legislation or regulation of some sort. There are many different views about how much should be done by regulation and how much should be left to market forces, but it is probably safe to say that no one would seriously suggest that sustainable development will just happen on its own.

A somewhat less obvious link is the role that environmental lawyers can and do play in creating the kind of world we want to have. Society and the environment are both infinitely complex systems. Creating regulation that has the intended impacts and minimizing unintended impacts is a difficult task.  Whether they are working in government, at universities, for non-profit environmental organizations or in industry, highly skilled people trained in environmental law are important players in debating and creating policies, laws and regulation for sustainable development.

Next time, we will explore another concept that is important to environmental law – the “precautionary principle”.

Tree-huggers.  Greenies. Enviro-nazis. Eco-terrorists. Eco-extremists. City-dwellers. Radicals. Eco-vangelists. Eco-crazies. Sheeple. Foreign-funded __________________ (add any of the preceding epithets).

What ARE environmentalists anyway? Are they good, wise, caring, rational, science-loving people put here to save us? Or are they deluded, uninformed, unreasonable, deranged lunatics out to destroy our jobs and our way of life, probably for personal gain?  And what does all of this have to do with environmental law?

In my opinion it has a lot to do with environmental law, or at least it has a lot to do to do with how that law develops. When people use negative labels to describe environmentalists, they are attempting to frame the discussion to suit their own purposes. Repetition of the negative labels is meant to shift public opinion and public opinion eventually impacts what becomes law.

I grew up thinking that “law” was just about rules. My father was a Crown prosecutor.  I had a limited understanding of what he did when he went to work, but I knew that he tried to put the bad guys in jail. There were rules. People who broke them went to jail.

If you are brave enough to read through the occasionally soul-sucking public comments on environmental news stories and social media pages, you will come away with the impression that there is an epic battle between good and evil taking place. I now think that the law is about so much more than rules.  It’s about what we want the world to look like. It isn’t always a thing, it’s often more like a process. The capital “L” Law reflects the society we live in, the one we want to live in, the things we collectively care about, the things that percolate to the top and demand the most attention. It’s messy and always slightly out of date, because society is complicated and the systems we have in place for creating law (elections, legislatures, law reform research, public consultations, lobbying) are imperfect. There is always a time lag between an expression of some desire in society and that desire finding its way into what we call law.  There will inevitably be compromises. In other words, society and law are inseparable. There is a continuous, symbiotic, push-pull relationship between the two.

Environmentalists are everywhere. Some work for non-profit organizations. Some want to change things quickly, even radically. Some work for oil companies, engineering firms, transportation companies, waste disposal companies, governments, law firms, utilities, universities . . . trying to make things better.   They are farmers and ranchers. Some like to hunt and fish. Some are backcountry campers, skiers and off highway vehicle users.  Jeff Foxworthy could probably work up a routine “If you breathe air and drink water. . . YOU might be an environmentalist”. Environmentalists aren’t good or bad. They are just us. I’m one. You are probably one too.

Learning how to teach people to have a stronger environmental ethic may be the most important group of skills needed for those who want to improve our environmental laws. If deeper caring for the environment becomes a more engrained societal value, our laws will eventually come to support that value.

Learning how to teach people to have a stronger environmental ethic may be the most important group of skills needed for those who want to improve our environmental laws. For many people, the conversation about environmental issues takes place online. If you are brave enough to read through the occasionally soul-sucking public comments on environmental news stories and social media pages, you will come away with the impression that there is an epic battle between good and evil taking place. Everyone appears to be talking, very few are listening.  In the words of the late Strother Martin in the 1967 film Cool Hand Luke, “What we’ve got here is failure to communicate.”

Social media exaggerates our differences of opinion and lowers the quality of our conversations. In a short paper (available online) called “Moral Outrage in the Digital Age”, Professor Molly Crocket of Yale University concludes that the ease of posting on social media magnifies the triggers of moral outrage, reduces its personal costs and amplifies its personal benefits. Professor Crockett states that if moral outrage is a fire, the internet is like gasoline.

For environmentalists and people who think they are not environmentalists, I propose the following incomplete list of suggestions to improve communication:

• When people use negative labels to describe environmentalists, they are attempting to frame the discussion to suit their own purposes.Be selective about what you choose to read and post on social media. Think about whether responding to something is going to do any good. Maybe there are more productive ways to advance your cause. Online forums may look like rational debate but are often staged attempts to manipulate public opinion. Since people tend to only read things that confirm their opinions (confirmation bias), your well-thought out argument will likely only be read by people who already agree with you;
• Fight your own confirmation bias. Try to listen to people with opposing views. Try to truly understand what they are saying and what they care about. You don’t have to agree or necessarily compromise. You are in a better position to make your point if you fully understand theirs. And who knows, you might occasionally change your mind;
• Deal with skepticism and mistrust by showing the other person that you are listening and trying to understand their position (easier face to face than online);
• Avoid name-calling. It just undermines what you are saying;
• Stick to the truth but realize that it’s difficult to change people’s minds by reciting facts. You must understand people’s values (including your own) and frame the debate in ways that reinforces those values;
• If you find yourself occasionally drawn into online shouting matches, think about instituting a self-imposed response time delay rule;
• Do your best to not be morally outraged.

For anyone who wants to dive in a little deeper, I highly recommend the 2016 book I’m Right and You’re an Idiot – the Toxic State of Public Discourse and How to Clean it Up by James Hoggan, a book that should be required reading for anyone who wants to post anything online.

You are thinking about spending a lot of money on a brand-new quad, dirt-bike, snowmobile or something similar. What are the rules? Who makes them? Where will you be able to use it?

Almost every human activity has the potential to affect the environment in some way. Regulating activities always creates perceived winners and losers. Nowhere is this more true than with the regulations which deal with off-highway vehicle (“OHV”) use in Alberta. There is a lot of passionate debate in Alberta currently about where OHV use should be allowed. That may be the subject of a future column. In this column, I just want to look just at what the rules are right now and where they come from.

It is your responsibility to determine whether access is allowed and seek permission when necessary. There is no single piece of legislation or government department that is responsible for regulating off-highway vehicle use in Alberta. Responsibility is divided between departments that regulate land use, forestry, the environment, agriculture and vehicles.

Rules about the vehicle and how it is operated:

Part 6 the Alberta Traffic Safety Act (the “Act”) and the Off-Highway Vehicle Regulation (the “Regulations”) passed under that Act set out the rules about machines themselves, registration requirements and general operation. Not many of these rules have anything to do with directly protecting the environment. Some of the important provisions are:

• if you operate an OHV on a highway (very broadly defined as anywhere people ordinarily operate vehicles), then all the rules that apply to vehicle operation apply to you;
• OHV operators must not drive carelessly, whether on public or private land;
• almost all OHV’s must be registered and insured (there are exceptions for OHV’s owned by farmers and used only on private land and for military vehicles);
• OHV operators are allowed to cross roads but must be careful and yield to other traffic;
• operators must stop when asked by a Peace Officer;
• municipalities can make some of their own rules about OHVs; and
• helmets must be worn, with exceptions for OHV’s operated on Indian reserves, Metis settlements, farms and ranches.

The Regulations deal with details of how old you must be to drive on a highway (18, or between 14 and 18 if accompanied by someone 18 or older), and set out requirements for headlights, taillights, mufflers, serial numbers, license plates, helmets, registration and insurance.

Many species of fish in Alberta spawn in shallow, gravel bottomed streams.  OHV use in those streams can easily destroy fish or their spawning habitat.  It is illegal.

Do any of these rules protect the environment? The answer is yes, although not always directly. The rules requiring mufflers of a certain standard help prevent fires since a machine without such a muffler can expel sparks which could cause a fire in the backcountry. The rules around registration, identification and stopping for Peace Officers may have indirect positive environmental effects. People who can be identified may be more likely to follow rules set out elsewhere.

Where can I ride?

This is where it gets interesting. The rules are not in one place and may change from time to time depending on local conditions.

Private land – There is a lot of private land in Alberta, most of it being farms and ranches. OHV use is almost always allowed on private land, so long as you have permission from the owner. As mentioned above, there are some special rules for farmers and ranchers operating their own OHVs on their own property or on other private property with permission. The same rules apply to public land that is leased to farmers or ranchers and under their control – permission must be sought.

Several non-profit conservation organizations, primarily Ducks Unlimited Canada, the Nature Conservancy of Canada, the Alberta Fish and Game Association and the Alberta Conservation Association privately own large tracts of land in Alberta. Recreational OHV use is not allowed by any of these organizations on their own property.

Public land – “Public” simply means the land is owned by a government. It does not mean that any member of the public can access it and use it however they please.

The rules requiring mufflers of a certain standard help prevent fires since a machine without such a muffler can expel sparks which could cause a fire in the backcountry. Most public land owned by the Canadian federal government in Alberta falls into one of three categories. First, there are five National Parks totalling 15.6 million acres. Use of OHV’s in National Parks requires the permission of the park superintendent which is not likely to be given. Second, 140 Indian reserves total over two million acres. Public access to land on reserves to non-band members is under the control of local bands and is generally not permitted. Third, there are military lands located at Suffield, Wainwright and Cold Lake Alberta. OHV use is not permitted for obvious reasons.

Trying to understand how public lands owned by the Alberta provincial government are regulated is challenging. There are many different designations of land created under several pieces of legislation. OHV use is prohibited in Provincial Parks (76), Wilmore Wilderness Park, Wilderness Areas (3), Provincial Recreation Areas (208) and Ecological Reserves (15).

Limited OHV use on designated trails is permitted in some of the 31 Wildland Provincial Parks, subject to local management. On the two Heritage Rangelands which have been designated, OHV use depends on the management plan for the area. (Some OHV use has been allowed on one property on designated trails to allow users to pass through the property to another area.) Finally, OHV use in the 139 Natural Areas which have been designated is not strictly prohibited by legislation but is managed by Alberta Parks based on local conditions. Many of these Natural Areas are small and not suitable for OHV use. Where limited OHV use is permitted in any of these areas, signage will be put up by local authorities along trails.

Two other designations of land are important for OHV use.  The Alberta Public Lands Act provides for the creation of “public land use zones” (“PLUZ”). There are currently 19 PLUZs in Alberta covering 2.77 million acres.  Most PLUZs are in sensitive landscapes along the eastern slopes of the Canadian Rockies. OHV use in PLUZs is subject to some control. The default rule is that OHV use is not permitted. Permission may be granted, though, and has been granted in some form in 12 of the 19 PLUZ’s. Only one PLUZ, the Maclean Creek Off Highway Vehicle Area, allows OHV use away from designated trails.

The final type of land is referred to as “vacant public land with no disposition”. Under the public lands legislation in Alberta, vacant public land is available for recreational purposes, including OHV use, with riders facing significantly lower restrictions than elsewhere. There is, for example, generally no requirement to stay on trails. As with PLUZ’s, much vacant public land is located along the eastern slopes of the Rockies and is sensitive environmentally.

Public land – “Public” simply means the land is owned by a government. It does not mean that any member of the public can access it and use it however they please.

There are other laws that apply to OHV riders. Regardless of the designation of the land, restrictions can be placed on OHV use under the Alberta Forest and Prairie Protection Act in times of high forest fire danger. Large areas were completely closed to OHV use during the summer of 2017 under this legislation. Also, under the Public Lands Administration Regulation it is an offence to operate an OHV in or near most waterbodies.  Many species of fish in Alberta spawn in shallow, gravel bottomed streams.  OHV use in those streams can easily destroy fish or their spawning habitat.  It is illegal.

There. Is that all completely clear?  The take-away points from this article are that if you are going to operate an OHV, you must always know where you are riding. It is your responsibility to determine whether access is allowed and seek permission when necessary. In many areas you must stay on designated trails. You always need to keep your “wheels out of the water” and obey signage which may be put up by local authorities due to changing conditions. The safest course of action is to assume that access is not allowed until you can positively determine otherwise. Government websites provide maps, geo-coordinates and contact numbers for the local authorities.