Funding Environmental Projects with Regulatory Prosecutions: Transparency and Accountability in Creative Environmental Sentencing

Forthcoming, Journal of Environmental Law and Practice (2019)

31 Pages Posted: 22 Oct 2019

See all articles by Shaun Fluker

Shaun Fluker

University of Calgary - Faculty of Law

Janice Paskey

Mount Royal University

Fiona Balaton

affiliation not provided to SSRN

Date Written: July 19, 2019

Abstract

This paper examines the use of creative sentencing orders which direct an offender to fund projects that facilitate objectives such as environmental research, education or remediation. Given the public interest character of sentencing for an environmental regulatory infraction, there is a surprising absence of transparency and accountability in the administration of these sentencing orders. The selection process for determining which projects are funded is shrouded in secrecy and is almost entirely a matter of discretion, which raises concerns that project recipients are chosen for reasons other than the environmental merit of their proposal. In our study of creative orders issued in Alberta, the majority of funding has been directed to post-secondary institutions and conservation funds who work closely with industry and government departments, while non-governmental environmental groups with established research, education and remediation programs appear to have received comparatively little funding. Good projects also need to be implemented, but insufficient details in sentencing orders and the absence of an oversight regime raises questions about whether project deliverables are ever met. This also creates risk that the funding is subsequently characterized as philanthropy by the offender. Transparency and accountability would be significantly enhanced by the enactment of legislation which establishes or appoints an agency to administer the funding and sets rules on matters such as public engagement in the project selection process, criteria used to evaluate project proposals, reporting on project outcomes, and enforcement.

Keywords: environmental sentencing, criminal law, regulatory offences

Suggested Citation

Fluker, Shaun and Paskey, Janice and Balaton, Fiona, Funding Environmental Projects with Regulatory Prosecutions: Transparency and Accountability in Creative Environmental Sentencing (July 19, 2019). Forthcoming, Journal of Environmental Law and Practice (2019), Available at SSRN: https://ssrn.com/abstract=3468332

Shaun Fluker (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

Janice Paskey

Mount Royal University ( email )

4825 Mount Royal Gate SW
Calgary, Alberta T3E6K6
Canada

Fiona Balaton

affiliation not provided to SSRN

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