We Need Environmental Lawyers and Law

Timber wolf. Photo: Jeffrey St. Clair.

I suspect most people think democracy is being able to vote, or being “free” to engage in extreme behaviour without considering its consequences,  or being able to dispense everything from uninformed blather to outright false claims on social media.  I don’t consider it any of those.

Democracy is established (or not) by the laws a country or state/province has, the set of regulatory processes that define and implement those laws, and the right of citizens to engage in those processes for one specific purpose; to defend themselves and the publics collective interests against overreach and domination by power hungry politicians pushing their personal ideology / agenda. That includes defense against unjustified and unwarranted actions by the massive civil service network that protects those politicians and the people – corporations and special interests – that support them.

Of course the “right” to vote can be, and in some cases is, enabled by law! But what do you end up with when you have to choose amongst 47 (or more) promises splattered across the spectrum of social, economic, and environmental issues? What if you could address each issue of interest to you on its own? That would be effective, meaningful democracy!

This is particularly relevant to natural resource conservation and management.

In the U.S., the day-to-day natural resource regulatory system has been, until the Trump administration began attacking it, relatively separate from the political system. Major land management agencies, like the Forest Service, report to appointed Secretaries and Chiefs. Laws, like the Endangered Species Act, the National Forest Management Act and the National Environmental Policy Act (NEPA), along with regulations, have until recently at least provided some opportunity for citizens to constrain the actions of an agency. NEPA mandates that environmental information be available to the public via scoping, in some cases must include environmental impact assessment, and a mandatory public comment process be adhered to.

Compliance with the law can be highly variable given that agencies are stocked by typical civil servants, some of whom chafe at the idea they should be controlled by public accountability. How dare citizens ask questions of them?

In Canada that role of “chief” is filled by an elected politician who becomes the responsible, hands-on Minister. The heavy hand of the political party in power is wielded directly upon civil service actions by the Minister. Together they can shut the door on citizens by deliberately excluding written and enforceable standards for performance or for protection or simply not passing laws and regulations protecting, for example, watersheds, wildlife habitat or old growth forest. This is the highly problematic history of British Columbia forest, wildlife and land (mis)management.

In Canada and the U.S. governments have evolved largely to facilitate economic growth and consumption by the private sector; this rests heavily on transfer of wealth from public lands and resources to corporations. It has been that way for over a century.

Contemporary thinking and realization focusing on all-around benefits to the people and the environment arising from the value of public land, water, clean air, stable climate, and biodiversity has faced stiff resistance; it does not sit well with the federal-provincial-municipal government corporate alliance. A hundred years of brain washing does not disappear in only decades!

The recent decline of America is to a large degree based on an attack on the laws and regulations that have until now provided some checks and balances on the ability of government and corporations to overpower citizens and strip them of their resources. Foremost amongst these abuses is the removal of the aforementioned rights of citizens to be informed, consulted and heard.

But Canada and British Columbia represent a sadder state of affairs. Citizens have never had “standing” in our legal system because we have no laws granting us that fundamental right to challenge government excess. It may seem impossible in today’s world, but here we are, struggling because we have never had the protection American citizens, and public lands, have had. Our resources have been up for grabs by corporations and private interests who deal directly with government and the civil service; citizens have been shut out, not just recently, but historically.

U.S. citizens challenge the Forest Service in court about 50 times annually regarding inadequate and unlawful land management actions (logging, road building, salvage, grazing) on public landscapes. That is apparently about three per cent of the decisions the forest service annually makes. The courts side with the plaintiff about 35% of the time (average 17 annually), either stopping the proposed action, sending it back for in depth assessment or allowing the parties to settle their differences. These are surprisingly low numbers but these legal victories are often strategic and, importantly, the actions help keep land management agencies honest.

In B.C., for example, that could have meant no logging permitted in critical range of endangered caribou or no road building in the range of a threatened grizzly bear population. Unfortunately, this legal avenue of checks and balances on government do not exist here; there has never been a single logging plan in B.C. exposed to impact assessment, let alone having the B.C. Forest service justify it in court.

Without laws protecting public landscapes, biodiversity and watersheds, there is no room for public interest lawyers. Government likes that, and the timber industry loves it, but don’t be fooled; the cost to citizens, our democratic process, and our environment are immense.