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

(2016) 29 Journal of Environmental Law and Practice 111

23 Pages Posted: 3 Feb 2016 Last revised: 24 Sep 2017

See all articles by Jason MacLean

Jason MacLean

Faculty of Law, University of New Brunswick; School of Environment and Sustainability, University of Saskatchewan

Date Written: February 2, 2016

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

Suggested Citation

MacLean, Jason, Striking at the Root Problem of Canadian Environmental Law: Identifying and Escaping Regulatory Capture (February 2, 2016). (2016) 29 Journal of Environmental Law and Practice 111, Available at SSRN: https://ssrn.com/abstract=2726626

Jason MacLean (Contact Author)

Faculty of Law, University of New Brunswick ( email )

41 Dineen Drive
P.O. Box 4400
Fredericton NB E3B 5A3, New Brunswick E3B 5A3
Canada

School of Environment and Sustainability, University of Saskatchewan ( email )

College of Education
Saskatoon, Saskatchewan S7N 5A7
Canada

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