09 May Environmental professionals and public participation
Environmental professionals and public participation
An entire industry has developed in Canada that prepares environmental risk assessments and evaluations of impacts to wildlife and other species, water quality, recreational values, the costs and mechanisms of remediation of contaminated sites and so on. There are growing problems with the quality of environmental evaluations as this industry matures. Allegations of manipulation of scientists have become commonplace in this area. True standards of conduct are becoming elusive in some areas of environmental evaluation. As a lawyer, I could never imagine putting a “limitation of liability” stamp on my professional opinion, in essence stating that I am not willing to accept responsibility for the accuracy or professionalism of my work. Sadly, this has become standard among environmental professionals. Concerns about the quality of environmental information relied upon to issue permits or approve environmental assessments are widespread enough that it may be difficult for the public to rely on these professional opinions. Since good science is the cornerstone of effective environmental management, the significance of this problem cannot be overstated.
There are many legal barriers to addressing the quality of environmental evaluations. First, there is an absence of legal remedies for the public through judicial review of the substantive quality of environmental decisions. The Federal Court has taken the lead in discouraging advocates from judicially reviewing substantive scientific disputes arising from environmental decisions. For example in Bow Valley Naturalists the court commented that it is not an “academy of science” and that it would be improper to ask a court to look at substantive issues. This means that if a decision-maker relies on bad information, that is not sufficient to challenge their decision to approve a potentially harmful activity.
Professional liability for false, fraudulent or negligent misrepresentation by environmental professionals depends on who the legal “duty of care” is owed to. This may be limited to the parties to the contract to do the professional work or those who would directly rely on the information in the report, such as a government regulator. This leaves liability likely owing only to those parties who may themselves have an interest in encouraging manipulation of the science.
To make matters more challenging, a layperson who alleges that information in a professional environmental evaluation is wrong could face SLAPP suit type consequences for defamation. Those unable to afford expert review of these reports are therefore poorly positioned to raise questions about quality. Professionals who are hired to peer-review these documents can also face intimidation and professional consequences for alleging the information is incorrect.
Yet we rely on these professionals every day to ensure that our drinking water is safe, to protect us from dangerous engineering, to assure us that the environment is protected. There is a dire need for law reform in this area in Canada. The public needs to have remedies for incorrect or misleading environmental evaluations and immunity from liability for questioning professionals’ judgments. Moreover, environmental professionals themselves need protection from intimidation from employers and clients who seek to influence or “edit” their professional opinions. They need this to protect their professional credibility and the credibility of the environmental protection system at large.
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