Law Commons^™

Governance Interactions In Sustainable Supply Chain Management, Errol Meidinger

Transnational Business Governance Interactions Working Papers

“Supply chains” are a major site of transnational business governance, and yet their dynamics and effectiveness are usually more assumed than interrogated in regulatory governance discourse. The very term “chain” implies a more determinist and simplistic understanding of supply relationships than is empirically supportable. Supply chains in practice are complex, dynamic, and highly variable networks. Based on peer-group presentations by over 60 supply chain professionals, this paper analyzes sustainable supply chain management practices in terms of the interactions conceptions of the Transnational Business Governance Interactions framework. It discusses possible refinements of the framework and suggests that sustainable supply chain management …

Preventive Justice, The Precautionary Principle And The Rule Of Law, Jocelyn Stacey

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Despite its largely preventive orientation, environmental law has, with one exception, remained distinct from the burgeoning field of preventive justice. The exception is the precautionary principle, which has become a subject of interest and frequent skepticism amongst preventive justice scholars. The precautionary principle is a central principle in environmental law. Its centrality arises from the pervasiveness of scientific uncertainty in environmental regulation; that is, our inability to reliably predict the consequences of our policy choices on environmental and human health. The precautionary principle squarely addresses the question of how we ought to proceed in the face of unavoidable uncertainty. This …

The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy's Unbearable Licence, Jocelyn Stacey

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This short reply clarifies and defends the argument presented in "The Environmental Emergency and the Legality of Discretion in Environmental Law." It responds to the arguments that were made, and that could have been made, in Pardy's critique "An Unbearable Licence".

The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey

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This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: they reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework …

The Precautionary Principle And Its Application In The Intellectual Property Context: Towards A Public Domain Impact Assessment, Graham Reynolds

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This chapter considers whether the precautionary principle - a central element of contemporary environmental law and policy - can be usefully applied in the intellectual property context as a means through which the public domain can be protected. Assuming the importance of the public domain, and arguing that expansions in intellectual property protection risk harming the public domain, this chapter contends that it is appropriate to apply the precautionary principle in the intellectual property context in order to guard against harm to the public domain; suggests several ways in which a precautionary principle (or a precautionary approach) could be applied …

The Rule-Of-Law Underpinnings Of Endangered Species Protection: Minister Of Fisheries And Oceans V. David Suzuki Foundation, 2012 Fca 40, Jocelyn Stacey

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Environmental organizations have experienced a string of recent courtroom successes enforcing the federal Species At Risk Act. This case comment examines one of these cases, Minister of Fisheries and Oceans v. David Suzuki Foundation (“Killer Whales”), to expose the rule-of-law underpinnings of the Federal Court of Appeal’s decision. It argues that, while the decision is on its face an ostensible victory for endangered species protection, the conception of the rule of law on which the court relies is incapable of providing meaningful legal constraints for much environmental decision-making.

Legality, Criminality And Agency Beyond The State: Forest Governance, Illegal Logging And Associated Trade, Lorraine Elliott

Transnational Business Governance Interactions Working Papers

This paper examines the disconnect between the literature on and practice of legality verification (LV) in the forest sector and what would seem to be a logical extension into the literature on and responses to forest crime and, more specifically, transnational criminality associated with trade in illegally logged timber. The apparently logical overlap between these two areas of endeavour arises because both are dealing with aspects of supply chains or chains of custody involving raw timber, forest products or timber products more generally. The disconnect, I suggest here, arises because of a lack of 'joined up thinking' between the two …

Assembling An Experimentalist Regime: Transnational Governance Interactions In The Forest Sector, Christine Overdevest, Jonathan Zeitlin

Transnational Business Governance Interactions Working Papers

Transnational governance initiatives increasingly face the problem of regime complexity in which a proliferation of regulatory schemes operate in the same policy domain, supported by varying combinations of public and private actors. The literature suggests that such regime complexity can lead to forum-shopping and other self-interested strategies which undermine the effectiveness of transnational regulation. Based on the design principles of experimentalist governance, this paper identifies a variety of pathways and mechanisms which promote productive interactions in regime complexes. We use the case of the EU's Forest Law Enforcement Governance and Trade (FLEGT) initiative, interacting with private certification schemes and public …

The Basics Of Species At Risk Legislation In Alberta, Shaun Fluker, Jocelyn Stacey

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This article examines Alberta's Wildlife Act and the federal Species at Risk Act (SARA) to assess the legal protection of endangered species in Alberta. Most of the discussion related to provisions contained in SARA, as there is comparatively less to discuss under the Wildlife Act. The fact that legal protection for endangered species in Alberta consists primarily of federal statutory rules is unfortunate, as wildlife and its habitat are by and large property of the provincial Crown, and it is a general principle of constitutional law that the federal government cannot in substance legislate over provincial property under the guise …

Transnational Conservation Contracts, Natasha Affolder

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Transnational environmental law is the subject of growing scholarly interest. Yet, much work remains to be done to fill in both the conceptual and empirical contours of this field. One methodological challenge that transnational law poses is the need to look beyond traditional sources of international and national law. This article contributes to efforts to understand transnational law's multilayered architecture by drawing attention to the use of transnational contracts as a mechanism to protect habitats and species. The diverse and proliferating examples of conservation contracts discussed in this article – which include forest carbon agreements, conservation concessions, debt-for-nature swaps, conservation …

Responsive Regulation In Context, Circa 2011, Cristie Ford, Natasha Affolder

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In the fall of 2010, the University of British Columbia Faculty of Law welcomed a group of scholars from around the world to consider the state and evolution of responsive regulation, in both theory and practice. The occasion was the presence of Dr. John Braithwaite, the faculty's inaugural Fasken Martineau Senior Visiting Scholar.' Given that we are on the cusp of the twentieth anniversary of Ian Ayres and John Braithwaite's seminal book, Responsive Regulation: Transcending the Deregulation Debate,' it is appropriate that this issue begins with John Braithwaite's own reflections on the responsive regulation project. On one level, the set …

Why Study Large Projects? Environmental Regulation’S Neglected Frontier, Natasha Affolder

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Large-scale natural resource and infrastructure projects create some of the most challenging and high-stakes contexts for environmental regulation. Witness the heated debates surrounding the Keystone XL pipeline project. But to date, large projects have attracted relatively little sustained interest from scholars of environmental law and regulation. Case studies stand alone as valuable empirical accounts of individual pipelines, dams, and mining projects. But synthesis of these case studies is lacking. A workshop that celebrates the approaching 20th year anniversary of Ian Ayres’ and John Braithwaite’s 1992 book, Responsive Regulation, provides an opportune moment to reflect on this lacuna in environmental regulatory …

Tax Expenditures To Limit The Growth Of Carbon Emissions In Canada: Identification And Evaluation, David G. Duff, E. Ian Wiebe

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Unlike the U.S., which relies heavily on tax expenditures as instruments of energy and climate change policy, Canada has introduced very few such tax expenditures, relying instead on voluntary initiatives, direct subsidies, and limited regulatory measures to limit carbon emissions. This paper identifies and evaluates the most prominent tax expenditures in Canada to limit the growth of carbon emissions. As background to this inquiry, Part II reviews Canadian experience with carbon emissions over the last two decades and the limited government response to this growing problem. Part III identifies the most prominent tax expenditures that Canadian governments have introduced in …

What Ever Happened To Canadian Environmental Law?, Stepan Wood, Georgia Tanner, Benjamin J. Richardson

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This Article examines the history of Canadian environmental law in order to explain why it has become a laggard in both legal reform and environmental performance. Canadian environmental law has long been of interest to scholars worldwide, yet its record is often poorly understood. The Article contrasts recent developments with the seemingly progressive initiatives of the 1970s, and analyzes these trends in light of their political, economic and governance context, as well as the wider critiques of environmental law. It argues that there is considerable room for Canadian governments to adopt more robust methods of environmental law, including following pioneering …

The Olympic Games And The Triple Bottom Line Of Sustainability: Opportunities And Challenges, Joseph Weiler, Arun Mohan

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Growing public expectations that the Olympic Movement and Olympic Host City Organizing Committees be socially, environmentally and economically responsible has made a commitment to integrate sustainability principles and practices a common theme in the bids of cities competing to host the Games. To understand the growing role of sustainability as an Olympic theme, the authors trace the evolution of the sustainability aspirations of the Olympic Movement by looking at the key Olympic Games and bids in this process. The authors determine that unlocking the potential of the Olympic Games to use sport to attract new audiences to sustainable living cannot …

The Market For Treaties, Natasha Affolder

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Corporations are consumers of treaty law. In this article, I empirically examine three biodiversity treaty regimes - the Convention on Biological Diversity, Ramsar Convention, and World Heritage Convention - to demonstrate that corporations implement or internalize treaty norms in a variety of ways that are not captured by the dominant model of treaty implementation – national implementation. As an exegetical model, I explore how corporations use biodiversity treaties as a source of private environmental standards. I focus on the interactions between mining and oil and gas companies and biodiversity treaties, as revealed through transactional documents, corporate reports, security law filings, …

Rethinking Environmental Contracting, Natasha Affolder

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Environmental contracts occupy an ill-defined middle ground between command and control regulation and voluntary initiatives. These agreements have captured the imagination of policymakers and scholars in the U.S. and Europe in particular. They are heralded as promising examples of “new governance.” This Article explores a little known example of environmental contracting which emerged in the context of a Canadian diamond mine — the Ekati Environmental Agreement. Through a fine-grained case study of the Ekati Agreement, this article challenges some of the assumptions that shape the “environmental contracting literature as well as the wider literature on “new governance.” By debunking the …

Beyond A Politics Of The Possible? South-North Relations And Climate Justice, Karin Mickelson

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This symposium’s issue on ‘Climate Justice and International Environmental Law: Rethinking the North–South Divide’ asks contributors to explore the intersection between law and emerging ideas of climate justice, and how international environmental law is shaped by and in turn reshapes (or fixates, or interrogates) our understandings of the North–South divide. In relation to the former, the author posits that there appears to be a profound disconnect between the law and the politics of climate change, one that reflects a broader disconnect between those who view the challenge posed by climate change through an ethical lens, and those who see it …

The Private Life Of Environmental Treaties, Natasha Affolder

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The gravitational pull of environmental treaties is felt not only by states. Yet international lawyers almost exclusively focus on states to explain treaty compliance, measure treaty implementation, and assess treaty effectiveness. This essay draws attention to a phenomenon that falls outside traditional boundaries of treaty analysis: the efforts of private corporations that aim at complying with environmental treaties. Existing models of treaty implementation are inadequate to explain these direct interactions between corporations and treaties. The dominant grammar of treaty “compliance” equally fails to fit. Using a little-studied example - the UNESCO World Heritage Convention - this essay highlights the phenomenon …

How Not To Incorporate Voluntary Standards Into Smart Regulation: Iso 14001 And Ontario's Environmental Penalties Regulations, Stepan Wood, Lynn Johannson

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In June, 2007 the province of Ontario, Canada, released environmental penalties (EPs) regulations. EPs (or administrative penalties, as they are called in the US) are the environmental equivalent of speeding tickets for facilities that violate pollution laws. They are found in numerous jurisdictions and are widely understood as part of a move toward smart regulation. The Ontario regulations offer reduced EPs to facilities with an environmental management system (EMS) that meets the requirements of ISO 14001 or the chemical industry's Responsible Care initiative. We argue that non-governmental, consensus-based standards such as ISO 14001 can and should play a constructive role …

Carbon Taxation In British Columbia, David G. Duff

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Among alternative public policies to reduce emissions of carbon dioxide and other greenhouse gases (GHGs), environmental taxation represents a promising but often under-utilized approach-particularly in North America where the introduction of any new tax involves enormous political challenges. In Canada, however, British Columbia became the first North American jurisdiction to implement a consumption-based environmental tax specifically designed to reduce GHG emissions when BC's provincial government enacted a carbon tax effective July 1, 2008.

This paper provides a general overview and initial evaluation of British Columbia's carbon tax, explaining the background to the announcement of the tax in the Provincial Government's …

Six Principles For Integrating Non-Governmental Environmental Standards Into Smart Regulation, Stepan Wood, Lynn Johannson

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Ontario recently introduced environmental penalties (EPs), the environmental equivalent of speeding tickets. EPs are widely understood as part of a move toward "smarter" environmental regulation. As part of the EPs regime, facilities with an environmental management system aligned with ISO 14001 or Responsible Care qualify for reduced penalties. The Ontario government’s attempt to incorporate voluntary standards - such as ISO 14001 - into its EPs regulations was not very smart, however, because it failed to observe six principles that, in our view, should guide the incorporation of standards into smart regulation. First, do not reinvent the wheel. If an existing …

Civil Liability Relief For Brownfields Developers, Stepan Wood

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The paper examines the extent to which state and federal governments in the United States seek to stimulate brownfields redevelopment by legislating immunity against third-party civil (common law) liability for "innocent" owners or operators who purchase contaminated land. Surveying developments in Alabama, California, Connecticut, Florida, Georgia, Iowa, Massachusetts, Michigan, Missouri, New Jersey and Virginia, it shows that such liability relief is uncommon, narrow, and largely unknown to brownfields lawyers. It concludes by identifying implications for Canadian lawmakers grappling with similar issues.

Cachet Not Cash: Another Sort Of World Bank Group Borrowing, Natasha Affolder

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This article explores the extent to which the World Bank's Environmental and Social Guidelines now serve as standards of acceptable global environmental and social behavior for transnational corporations. Although the World Bank Standards were not created for the purpose of providing global rules for business on social and environmental issues, they are frequently cited as de facto global standards. This article reveals the unlikely rise in prominence of these standards and the widespread adoption of these rules by corporations, public and private financial institutions, governments, and export credit agencies. This example of private borrowing of public standards is intriguing not …

Domesticating The Exotic Species: International Biodiversity Law In Canada, Natasha Affolder

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While a significant body of international and regional agreements now addresses habitat preservation, wildlife protection, and biological diversity, these advances on the international level often fail to be effectively translated into domestic law. In this article, the author argues that international biodiversity law is being treated in Canada as "exotic". It is peppered into parties' submissions without a principled explanation of its role in Canadian law, receives little consideration from the courts, and must ultimately rely on non-legal means of enforcement. The author examines the jurisprudence dealing with four major biodiversity treaties. She notes that the judicial treatment of these …

Leading Towards A Level Playing Field, Repaying Ecological Debt, Or Making Environmental Space: Three Stories About International Environmental Cooperation, Karin Mickelson

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This article considers a number of different ways of conceptualizing the relationship between South and North in the environmental context, focusing on international responses to climate change and, particular, the Kyoto Protocol to the United Nations Framework Convention on Climate Change. It explores three stories about international cooperation. One derives from the concept of "ecological debt," the second comes from the concept of "environmental space," and the third, which might be said to underlie the U.S. approach to the Kyoto Protocol at the present time, is labelled "leading towards a level playing field." This article provides an overview of all …

Canada’S 'Forgotten Forests': Or, How Ottawa Is Failing Local Communities And The World In Peri-Urban Forest Protection, Stepan Wood

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The forests found in Canada’s rapidly expanding urban fringes have been decimated by agricultural settlement and urban growth, yet they have been largely overlooked in Canadian forest policy debates. While these “peri-urban” forests fall mainly under provincial jurisdiction, this paper argues that the federal government has the authority and opportunity to negotiate a more active role for itself in this area. The paper assesses the federal government’s track record of international commitments and domestic action on peri-urban forests, canvassing developments in six policy areas: general principles; forest conservation and management; biodiversity and endangered species; land securement and ecological gifts; climate …

Tax Policy And Global Warming, David G. Duff

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The Canadian government announced its ratification of the Kyoto Protocol to the United Nations Framework Convention on Climate Change on December 17, 2002. Under this protocol, Canada has agreed to reduce annual emissions of greenhouse gases (GHGs) to 6 percent below 1990 levels during the period 2008-2012 - a commitment that requires a 30 percent reduction relative to projected GHG emissions for 2010 assuming business as usual. In order to achieve this objective, the Canadian government has established specific reduction targets and proposed various policy instruments in its climate change action plan (CCAP) released in November 2002. Although the main …

Environmental Management Systems And Public Authority In Canada: Rethinking Environmental Governance, Stepan Wood

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Using the example of environmental management systems (EMS) and the ISO 14001 standard, I propose a typology of eight ways in which public authorities interact with voluntary environmental initiatives: 1. Steering (influencing the development, use or content of voluntary initiatives through official policy pronouncements, participation in standards development or creation of legal ground rules or backstops for voluntary initiatives), 2. Self-discipline (applying voluntary initiatives to government operations or agreeing to international trade rules that turn voluntary standards into constraints on regulatory authority), 3. Knowledge production (generating and disseminating ideas, information and expertise about the design, use or value of voluntary …

South, North, International Environmental Law, And International Environmental Lawyers, Karin Mickelson

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The author argues that international environmental law as a discipline has failed to respond to Third World concerns in a meaningful fashion. It has merely accommodated these concerns at the margins, as opposed to integrating them into the core of the discipline and its self-understanding. Two aspects of the standard, "accommodationist," approach are considered: (1) the tendency to provide an ahistorical account of the evolution of international environmental law; (2) the implicit or explicit portrayal of the South as a grudging participant in environmental regimes rather than being recognized as an active partner in an ongoing effort to identify the …