Decisionmaking Improvements and Alternatives

  • David VanderZwaag
  • Gordon Beanlands
  • Peter Duinker
  • Karen A. Massey
  • Alison Rieser
  • Judith Spiller
  • Robert A. Taylor
  • Peter Underwood
Conference paper
Part of the Lecture Notes on Coastal and Estuarine Studies book series (COASTAL, volume 20)


Academics who suggest improvements or alternatives to decisionmaking frameworks operate under the shadow of a practical reality. Environmental decisionmaking is a dynamic process involving complex interrelationships among public interest groups, scientists, project proponents, and government officials who advocate value positions at various decisionmaking levels — legislative and regulatory drafting, budgetary policymaking, federal permit processes, provincial or state licensing reviews, contract negotiations, and judicial proceedings. Thus, no suggested legal or administrative changes can guarantee smooth operation of decisionmaking in practice. Much depends on personal perceptions and a willingness of all parties to cooperate in reaching a resolution.


Environmental Assessment Federal Energy Regulatory Commission Transboundary Pollution Environmental Impact Statement International Joint Commission 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.


Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.


  1. 1.
    Environmental Assessment and Review Process Guidelines Order,SOR/84–467, S. 33(1).Google Scholar
  2. 2.
    For a recent critique of the cost-benefit approach to environmental decisionmaking, see T.F. Schrecker, Political Economy of Environmental Hazards 39–58 ( Law Reform Commission of Canada, Protection of Life Series Study Paper, 1984 ).Google Scholar
  3. 3.
    For a general discussion of risk analysis and environmental decisionmaking, see Gelpe and Tarlock, “The Uses of Scientific Information in Environmental Decision-Making,” 48 So. Cal. L. Rev. 371 (1974). For a discussion of the use of risk analysis in the Canadian regulatory context, see Ronson and Swoveland, “Risk Analysis and the Regulation of Safety by Administrative Tribunals: A Case Study,” 62 Can. Bar Rev. 4 (1984).Google Scholar
  4. 4.
    Environmental Protection Act, S.N.S. 1973, c. 6, S. 17 (2).Google Scholar
  5. 5.
    See, e.g., Canada-Nova Scotia Accord for the Protection and Establishment of Environmental Quality. Google Scholar
  6. 6.
    As an example of the reciprocal legislation approach, Nova Scotia and the federal government entered into a Canada-Nova Scotia Agreement to Govern Offshore Oil and Gas Resource Management and Revenue Sharing on March 2, 1982. The Agreement, which provided for a federal-provincial regulatory board and detailed revenue-sharing, was subsequently implemented through reciprocal legislation. See Canada-Nova Scotia Oil and Gas Agreement Act, S.C. 1983–84, C. 29 and Canada-Nova Scotia Oil and Gas Agreement (Nova Scotia) Act, S.N.S. 1984, C. 2.Google Scholar
  7. 7.
    P.H. Pearse, F. Bertrand and J.W. MacLaren, Currents of Change, Final Report Inquiry on Federal Water Policy 169–170 (September 1985).Google Scholar
  8. 8.
    See, e.g., The TransAlaska Pipeline Authorization Act of 1973, 43 U.S.C. 1651, 1652(b) (1982). The Act exempted pipeline construction and operation from any further action under NEPA beyond the impact statement prepared by the Interior Department in 1972.Google Scholar
  9. 9.
    Personal Communication with FEARO official.Google Scholar
  10. 10.
    Id. The Department of External Affairs, in a written submission to the Panel, offered to act as the formal facilitator for interventions by informing the U.S. Department of State and the Danish Ministry of Foreign Affairs of the EARP Panel’s willingness to accept foreign interventions and by indicating such interventions would be given in the private capacity of the individuals concerned. Department of External Affairs, Position Statement on the Beaufort Sea Oil and Gas Proposal (August 5, 1982). No Alaskan or Greenlandic interventions were subsequently made at the public sessions, but the Panel did receive written submissions on specific concerns and oral comments from a Greenland resident. Neither the project proponents not the Panel report, however, dealt with the transboundary implications of offshore development in any detail. The Panel merely recommended that the Environmental Assessment Report be made available to the Governments of the United States and Alaska, the North Slope Borough of Alaska, and Government of Denmark and the Home Rule Government of Greenland. Federal Environmental Assessment Review Office, Beaufort Hydrocarbon Production and Transportation,Final Report of the Environmental Assessment Panel (July 1984), p. 100. Recent Cabinet Guidelines assert the need for initiating departments to consider environmental and social effects that are external to Canadian territory. Environmental Assessment and Review Process Guidelines Order,SOR/84–467, s. 401(a).Google Scholar
  11. 11.
    Arctic Pilot Project, Public Interest 21–23 (Volume 5 of 6 volumes, 1980).Google Scholar
  12. 12.
    New England Governors’ Conference, Inc., Background Paper on the Proposed Bay of Fundy Tidal Power Project (Prepared for the New England Governors’ Conference Inc.) First Annual Bilateral symposium on New England - Eastern Canadian Affairs, May 24–25, 1984, Providence, Rhode Island.Google Scholar
  13. 13.
    Boundary Waters Treaty of 1909, 11 January 1909, United States - Great Britain, 36 Stat. 2448, T.S. No. 548.Google Scholar
  14. 14.
    Id.,Article VII.Google Scholar
  15. 15.
    Id.,Article VIII.Google Scholar
  16. 16.
    Id.,Preliminary Article.Google Scholar
  17. 17.
    Id.,Article IV.Google Scholar
  18. 18.
    Id.,Article X.Google Scholar
  19. 19.
    Id.,Article IX.Google Scholar
  20. 20.
    Cohen, “The Regime of Boundary Waters - The Canadian-United States Experience,” 146 Recueil des Cours 217, 289 n. 164 (1975 III).Google Scholar
  21. 21.
    E.g.,the current (1978) Great Lakes Water Quality Agreement, 30 U.S.T. 1383, T.I.A.S. No. 9257, was developed from the 1972 Agreement, 23 U.S.T. 302, T.I.A.S. No. 7312, which itself grew out of a series of references on Great Lakes water quality.Google Scholar
  22. 22.
    International Joint Commission, “Investigation of the International Passamaquoddy Tidal Power Project” (1961) [IJC Docket 72].Google Scholar
  23. 23.
    For an overview of several of those suggestions, see Munton, “Paradoxes and Prospects,” in The International Joint Commission: Seventy Years On 64–78 (R. Spencer, J. Kirton, K. Nossal, eds., 1981 ).Google Scholar
  24. 24.
    See e.g., id. at 74–75.Google Scholar
  25. 25.
    The agreements are discussed in O.P. Dwivedi and J.E. Carroll, “Issues in Canadian - American Environmental Relations” in O.P. Dwivedi (ed.) Resources and the Environment: Policy Perspectives for Canada 306, 315–317 (1980). For a discussion of the importance of provincial inputs into bi-national cooperation, see J. Piette, “The Role of Provincial Governments in the Field of Transfrontier Pollution,” in Common Boundary/Common Problems: The Environmental Consequences of Energy Production 69–70 Proceedings of a Conference held at Banff, Alberta, Canada, March 19–21, 1981 (1982).Google Scholar
  26. 26.
    For a summary of the discussions and actions of the first eleven Conferences, see New England Governors’ and Eastern Canadian Premiers’ Conference Eleven-Year Overview of Discussions (1984).Google Scholar
  27. 27.
    Resolutions,Twelfth Annual Conference of the New England Governors and the Eastern Canadian Premiers, Newport, Rhode Island (June 17–19, 1984).Google Scholar
  28. 28.
    Leaders to Help Regulatory Process,“ (Halifax) Chronicle Herald,p. 5, June 19, 1985.Google Scholar
  29. 29.
    Record of Discussion 13–11, Bay of Fundy Tidal Power,Thirteenth Annual Conference of the New England Governors and Eastern Canadian Premiers, St. Andrews, N.B. (June 16–18, 1985).Google Scholar
  30. 30.
    Transport Canada, Coast Guard and U.S. Department of Transportation, Coast Guard, Canada-United States Joint Marine Pollution Contingency Plan (September 15, 1983 ).Google Scholar
  31. 31.
    Personal Communication, Dr. Adam Kerr, Canadian Hydrographie Service (January 29, 1986 ).Google Scholar
  32. 32.
    For a general discussion of the major types of international agreements - demonstrative, administrative, distributive, and resolutive, see D. Johnston (ed.), The Environmental Law of the Sea 356–357 (1981). The types of agreements are not necessarily mutually exclusive, that is, a single treaty might include demonstrative, administrative, distributive, and resolutive elements.Google Scholar
  33. 33.
    The Agreement is reprinted in 23 Int’l Legal Materials 269 (1984).Google Scholar
  34. 34.
    American Bar Association and Canadian Bar Association, Settlement of International Disputes Between Canada and the U.S.A. (1979). The Draft Treaty on Equal Access and Remedy in Cases of Transfrontier Pollution is also reprinted in Comment, “Who’ll Stop the Rain: Resolution Mechanisms for U.S.-Canadian Transboundary Pollution Disputes,” 12 Den. J. Int’l L.andP. 51, Appendix A (1982). For a discussion of the Joint Working Group’s work, see G. Alexandrowicz, “A Proposal to Assist the Resolution of Environmental Disputes Between Canada and the United States,” in Common Boundary/Common Problems: The Environmental Consequences of Energy Production 58–60, Proceedings of a Conference held at Banff, Alberta, Canada, March 19–21, 1981 (1982).Google Scholar
  35. 35.
    For the text and commentary on the model act, see Uniform Law Commission Proceedings 1982, Appendix DD, p. 500.Google Scholar
  36. 36.
    As of October 1984 Montana, Colorado, and New Jersey were members of the “club”, and the Act had been introduced into the Wisconsin and Minnesota legislatures. “The Trickle Down Theory of International Law,” Canadian Council on International Law Bulletin, Vol. XI, No. 2 (February 1985), p.4. On June 10, 1985 the Ontario legislature gave first reading to the Transboundary Pollution Reciprocal Access Act as Bill 3 of the 1st session of the 33rd Legislature. Personal Communication, Mr. Doug Beecroft, Ministry of the Attorney General of Ontario (January 29, 1985 ).Google Scholar
  37. 37.
    S.C. 1970–71–72, c. 47.Google Scholar
  38. 38.
    Id.,S. 21.1(1) as amended by S.C. 1980, c. 45, s.3.Google Scholar
  39. 39.
    Id.,S. 21.1(2)(b) as amended by S.C. 1980, c. 45, s.3.Google Scholar
  40. 40.
    For a discussion of the numerous factors behind the agreement’s demise, see D. VanderZwaag, The Fish Feud: The U.S. and Canadian Boundary Dispute 90–92 (1983).Google Scholar
  41. 41.
    The text of the Draft Treaty on a Third-Party Settlement of Disputes is reprinted in Comment, “Who’ll Stop the Rain: Resolution Mechanisms for U.S.-Canadian Transboundary Pollution Disputes,” 12 Den. J. Int’l L.andP. 51, Appendix B (1982).Google Scholar
  42. 42.
    Report of the U.N. Conference on the Human Environment, U.N. Doc. A/Conf.48/14.Google Scholar
  43. 43.
    In December 1982 the U.N. General Assembly adopted 11 resolutions concerning various environmental matters including the establishment of the United Nations Environmental Programme. See (1973) 10 U.N. Monthly Chronicle 72–73. See also Yearbook of the United Nations 1972, pp. 323–329.Google Scholar
  44. 44.
    For a recent overview of the status of the Regional Action Plan, see Neuman, “The United Nations Regional Seas Program,” Marine Tehnology Society Journal,Vol. 19 No. 1 (1985), pp. 46–52.Google Scholar

Copyright information

© Springer Science+Business Media New York 1986

Authors and Affiliations

  • David VanderZwaag
  • Gordon Beanlands
  • Peter Duinker
  • Karen A. Massey
  • Alison Rieser
  • Judith Spiller
  • Robert A. Taylor
  • Peter Underwood

There are no affiliations available

Personalised recommendations