Striking at the Root Problem of Canadian Environmental Law: Identifying and Escaping Regulatory Capture

Abstract

Our government is corrupt. We all know this. But we tend to ignore this fact or treat it as an analytical afterthought; regrettable, perhaps, but seemingly insoluble. If we are to reform Canadian environmental law, however, we can no longer afford to ignore this fundamental problem. This paper argues that regulatory capture – the direction of regulation in law or application away from the public interest toward the private interests of regulated industries – is the systemic root problem underlying Canadian environmental law and policy. This systemic root problem is all the more complex because of its catch-22 nature, whereby the political barriers necessitating law reform in the first place render proposed reforms and policy recommendations politically impossible to implement. Canadian environmental law scholarship must seek a way directly through this problem. By tracing the contours of the oil and gas industry’s capture of Canada’s greenhouse gas emissions and climate change policy, this paper suggests a new way forward for scholarship and public policy engagement seeking to redirect legislation and regulation away from the private interests of industry to the public interest of citizens and thereby close the democratic deficit in Canadian environmental law and policy.

Keywords: Canadian environmental law, corruption, regulatory capture