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Pipelines and Public Participation, Part II: Freedom of Expression

Further to my post of November 26, my colleague Professor Peter Carver discusses the other aspect of TransCanada Chair in Administrative and Regulatory Law Rowland Harrison’s talk “Public Participation in Energy Regulation Proceedings: Balancing Access, Orderliness and Effectiveness”, the Charter challenge to National Energy Board Act amendments dealing with the issue of standing:

The new section 55.2 limits participation in pipeline and other hearings to those “directly affected” by a proposed project and, at the discretion of the National Energy Board, those who have “relevant information or expertise” to offer.  The Board has invoked the amendment to refuse standing to numerous applicants with respect to Enbridge’s proposed “Line 9 Project” to reverse and increase the flow of oil in a pipeline running 600 kilometres between Ontario and Montreal.

Two refused applicants, an individual living near the pipeline route and Forest Ethics Advocacy (FEA), a non-profit organization, have filed an application in the Federal Court of Appeal  to challenge section 55.2 on constitutional grounds, specifically freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms. This raises a number of interesting issues, including whether freedom of expression provides citizens’ with a right of access to a quasi-judicial public forum. Two streams of section 2(b) jurisprudence come to mind.

One stream deals with the issue of access to public spaces for purposes of expression. In general, the Supreme Court has adopted a liberal approach to this issue, finding that Canadians have a right to engage in expressive activity—such as leafleting, placing posters, or demonstrating—on public property, unless the activity is inconsistent with the usual or historic uses of the property. In one notable decision, Greater Vancouver Transportation Authority v. Canadian Federation of Students, the Court ruled that university students had a right under section 2(b) to buy and place political advertising on the side of Vancouver city buses. More recently, in Canadian Broadcasting Corp. v. Canada (Attorney General), the public areas of courthouses were recognized as places suitable for CBC journalists to conduct interviews, although limits placed on this expressive activity were upheld as justifiable under section 1 of the Charter.

Perhaps a more pertinent stream of cases deals with whether section 2(b) imposes a positive duty on the state to support or facilitate individuals’ expressive activity. In the 2006 case Baier v. Alberta, a teacher raised a section 2(b) challenge to a statutory provision barring teachers from standing for election to school boards. A majority of the Court ruled that freedom of expression does not generally require governments to provide access to public platforms. Rather, the freedom is a “negative right” that prevents the state from denying individuals the opportunity to engage in expression.  The challenged law did not prevent teachers from speaking out on educational issues, just from running for a particular public office. In making its ruling, the Court drew on earlier decisions in which it had said that laws defining who could vote in a referendum (Haig v. Canada), and a program that provided funding to support participation in a consultative process by some aboriginal groups, but not others (Native Women’s Assn. of Canada v. Canada) did not infringe the expression rights of the excluded parties.

The issue of standing to participate in legal processes has generally been viewed as a matter of administrative law and civil procedure. By legislating a strict approach to standing in a controversial area such as pipeline approval hearings have become, the federal government has invited more innovative constitutional arguments. The claimants in the “Line 9 Project” case may have an uphill battle in establishing that their claim comes within the parameters of current jurisprudence on freedom of expression. They have, after all, many avenues for expressing their views on the public issues involved. What they don’t have is the opportunity to present those views in the only forum established by government to develop policy on the matter.  Should the claimants get over the first hurdle, it could be expected the government would have a problem justifying the violation under section 1 of the Charter.  What is the “pressing and substantial objective” that requires excluding interested and affected members of the public from participating in NEB hearings, and was the limit chosen a proportionate and minimally impairing solution?

Time to Rethink the Ban on PEDs in Major League Baseball?

“It pays to cheat, at least in Jhonny Peralta's case” was Fox Sports’ Senior MLB Writer Ken Rosenthal’s opinion, after Peralta signed a four-year, $53 million contract with the St Louis Cardinals. Earlier this year, Peralta, as a Detroit Tiger, was one of thirteen players who took a 50 game suspension for using banned performance enhancing drugs (PEDs). A-Rod was the only player who refused to take the deal. That saga is ongoing.

Rosenthal’s headline implies that Peralta is being rewarded for cheating. But by accepting the suspension, Peralta admitted to using PEDs, so the Cards can’t claim they were tricked or deceived – they clearly think Peralta will be a valuable player without PEDs. And, as Rosenthal acknowledges, Peralta has served his suspension, paying his debt to MLB and its fans, and is entitled to move on. It is interesting to note that most Tigers fans agreed and didn’t seek to punish Peralta when he returned to the Tigers for the post-season. Rosenthal’s concern, shared by others, is that a 50 game suspension will not be enough to deter future PED use if the sting of a suspension is not going to hurt a player’s value going forward.

But why the concern about deterring future PED use? The answer can’t be that it’s cheating – it’s cheating because it’s currently against the rules. The question this baseball fan has been asking herself since the Biogenesis scandal broke is what is the principle behind banning PEDs? I don’t think it can be some vague notion about the purity of the game. Baseball is a multi-billion dollar industry; this is not “raw talent” alone that we’re watching. And that’s okay – it’s not called The Show for nothing. The only principle that seems at all sound is a principle of player safety. But then the question becomes whether a ban is the best way to respect this principle. In a 2004 article, in the British Journal of Sports Medicine, Savulescu, Foddy & Clayton argue in favour of testing for health of professional and Olympic athletes, rather than for PEDs. Perhaps if MLB players understood that their health, not their stats, was the priority, they wouldn’t have the same incentive to take PEDs in the first place.

Pipelines and Public Participation

The debate over recent changes to the rules governing public participation in regulatory hearings regarding pipelines and other energy projects may have obscured some important facts about the Joint Review Panel hearing on the proposed Northern Gateway pipeline, which concluded in June:

• 215 parties registered as interveners;
• the Panel heard over 1,500 oral statements;
• the Panel received over 9,000 letters of comment; and
• notwithstanding this level of public participation, the hearing process was completed successfully and on schedule.

These facts were highlighted in a talk last Thursday at the U of A Faculty of Law entitled “Public Participation in Energy Regulation Proceedings: Balancing Access, Orderliness and Effectiveness”. Speaker Rowland Harrison holds the TransCanada Chair in Administrative & Regulatory Law at the Faculty. As a permanent member of the National Energy Board from 1997-2011, Mr Harrison sat on pipeline hearings. He noted that while project proponents always want a faster process, they are well-served by an open process that gives all interested (rather than “directly affected”) parties a chance to express their views – and most proponents know this. He pointed out that “Enbridge did not object to any of the participation rights granted by the [Northern Gateway] Panel.”

The facts about public participation in the Northern Gateway hearing seem to demonstrate two things: First, concern regarding pipeline projects is not limited to so-called environmental activists, but is widespread among the public at large. Second, facilitating pipeline expansion does not necessarily imply restricting public participation; rather, it seems more likely that restricting participation will increase pipeline opposition. As Harrison noted, an inclusive process is required to ensure that pipeline and other energy projects obtain not only regulatory approval, but also the necessary “social licence” to proceed. For this reason, Harrison called for a liberal approach to the new restrictions on public participation that continue as much as possible the Board’s tradition of inclusivity, coupled with a “rigorous” approach to the conduct of the hearing itself.

In his talk and the discussion following, Harrison acknowledged that the reason pipeline hearings attract a high level of public participation has less to do with the pipelines themselves and more to do with the upstream implications for extraction and the downstream implications for continued reliance on fossil fuels. Pipeline hearings are not the best forum for debate regarding these implications, but currently, as Harrison pointed out, they are the only “structured forum” for raising these issues. And these issues need to be raised: governments at all levels and politicians of all parties must start balancing the need to create jobs and wealth in the present with the moral obligation to ensure that future generations have sufficient resources – natural or at least monetary – to create wealth for themselves. Striking the appropriate balance will require a genuine conversation in which both sides of the debate show some willingness to listen to the other.

New Ways of Teaching Law

Big news from the past week has been the Law Society of Upper Canada's decision to create a Legal Practice Program (LPP) that will allow students to qualify as lawyers without traditional articles.  Ryerson University - with no law faculty - was able to grab the LSUC's attention with a proposed program.  At least for the next few years, they'll be running a pilot program designed to mimic legal practice.

There are many interesting angles to examine in this story - but I'll focus on one.  Without commenting in any way on whether it's a good idea to have a program of this nature, or even whether Ryerson's program will be a good one, I was impressed with their launch video.  It seems clear that they will try to build a program from the ground up and try to use technology as a teaching tool in a way that currently seems beyond the capacity of most law schools (the derogatory reference to "traditional classroom seems to me a clear dig at the universities).  Personally, I think every law school should be looking at some of these tools to enhance the classroom experience - even if we don't go quite as far as Ryerson is.  And frankly, I think it will happen, eventually.

It's interesting that Ryerson - without the infrastructure and financial obligations (read: Prof. salaries and other objectives to service, like research) - is the school to take this on.  I believe all law schools would be well served to keep an eye on what this new entrant to the world of "law teaching" (broadly defined) is doing.

 

 

Our inclement weather

My latest Chronicle-Journal column on Sustainability Matters is online here. In the column I discuss the link between extreme storms and climate change. But the more important message concerns what, if anything, we are prepared to do about climate change, and where we might look for wisdom.

Rob Ford, Mayoral Responsibilities and Legal Remedies

I have been reluctant to write about the ongoing and all-too-real reality tv show that is Toronto Mayor Rod Ford, but the story raises interesting legal questions regarding the available remedies (or lack thereof) when a mayor has lost the ability to fulfill the responsibilities assigned to the office under the City of Toronto Act.

Aside from one's personal opinions regarding the mayor's past and present conduct, it is clearly affecting his ability to fulfill at least two responsibilities of the mayor's office. First, under s. 133(1)(d) of the City of Toronto Act, it is part of the role of mayor as head of council "to represent the City at official functions". Back in the summer, Ford failed to show up at the opening of the Taste of the Danforth festival; a few hours later, he was seen wandering drunk along the Danforth. This week, he was asked not to march in the upcoming Santa Claus parade. Whatever one thinks of Ford's follies, they are preventing him from fulfilling this legislatively assigned responsibility. Second, under s. 134(c), as chief executive officer, the mayor "shall...act as the representative of the City both within and outside the City, and promote the City locally, nationally and internationally". Ford's confession that he had smoked crack cocaine "probably in one of [his] drunken stupors" made international news, and US media closely follow his increasingly outrageous every word. Arguably, Ford is no longer representing, and no longer able to represent, the City of Toronto, as he is too busy representing, defending and just being himself. Any reasonable person, consciously acting as a representative of another individual or group, would not have said the things Ford said to the media last Thursday morning. (I have not included a link here as, really, it's unnecessary and gratuitous).

So, what is to be done? What legal remedy is provided for a mayor's failure to fulfill these responsibilities? The answer, it seems, is none. In a way, this is as it should be. The responsibilities described above are broad and general and so in other cases could leave room for partisan arguments that a mayor was not fulfilling their responsibilities. In other cases, the most appropriate remedy is a change of leadership following an election. This may seem an increasingly unsatisfactory remedy in this case, but amending the City of Toronto Act (see also here) to fix what is hopefully a highly anomalous situation may not be desirable in the long-term. The approach taken by Toronto City Council seems preferable, passing motions reducing the powers of this mayor, to make clear through the near-unanimous Council support for these motions that, as a matter of fact, this mayor no longer represents the City of Toronto and its residents, even if he hangs on to the title.

Renting v. Owning, Part II

Earlier this year, I blogged about the problems with the perceived shame in renting. Personal finance columnist Preet Banerjee makes a similar argument, pointing out that a high percentage of home ownership in a population doesn't necessarily translate into a strong economy.

Clarification: Fixing Canada's Democracy

Andrew Coyne's Merv Leitch lecture is now up on the University of Alberta's YouTube page. I went back to re-hear the part of his talk discussing his proposed "truth in politics act". What Coyne proposes would be a voluntary provision, maybe of the Canada Elections Act, which politicians could opt in to, but once they did, there could be legal consequences for going back on their promises. So, although the analogy to securities regulation (which is mandatory for all companies that choose to list their shares on a stock exchange) was made, what Coyne is proposing is different from what I described in my previous blog post.

Even a voluntary scheme runs the risk producing boilerplate platforms. Perhaps no party or individual candidate would invoke it. But once one party did, particularly if it was one of the three main parties, then the others likely would feel forced to follow. Then I think you would see extremely carefully worded platforms. Of course, causing politicians to think harder before making promises is not a bad thing. The question is whether "careful" would devolve into "vague". The other issue, not addressed in my previous post, is whether it is possible to draft such a provision in a way that would give politicians enough room to react to real changes in circumstances, but still have real legal consequences for reneging.

This of course is how change happens: someone throws out an idea, someone else (usually a lawyer) points out some potential problems, another suggests how these problems could be addressed and, if the idea is a solid one, a workable solution is reached eventually. But, in the meantime, citizens could do a better job of calling out politicians and parties whose promises are too extravagant to be believed.

Maybe All We Need is a Little Patience: Fixing Canada's Democracy

Concluding a talk on the state of Canada's democracy with a list of legislative initiatives is generally a good idea when speaking at a law school. And it seemed to play well for newspaper columnist and At Issue panel member Andrew Coyne on Monday evening here at the U of A Faculty of Law. But as I try to convey to my Contracts students, the law wasn’t intended to resolve every dispute or to enforce all social mores.

I don’t want to knock Coyne for proposing solutions to the problems with Canada's democracy, which he articulated with humour and precision in the 2013 Merv Leitch lecture. After all, it is much easier to point out the flaws in a system than to identify actions to fix them. But I am skeptical of Coyne’s law and order style proposals that would make it illegal for politicians to lie and for citizens not to vote.

With respect to a law that would require politicians to tell the truth in election campaigns, Coyne invoked the example of Canadian securities regulation, which makes a company that wishes to distribute its shares to the public liable for misrepresentations in its disclosure to potential investors. The result of these regulations, which admittedly might be unnecessarily complex, is that company disclosure is almost always bland, boilerplate and says little about the company-specific risks involved in the investment. Coyne’s proposed law risks making already vacuous election platforms even blander and less informative for voters.

Rather than creating legal penalties to make it harder for politicians to lie, we, as citizens, could make it easier for them to tell the truth. We could do this simply by exercising a little more patience when assessing parties’ election platforms. Canadians are well-educated; we understand that public policy involves nuance and compromise. In our own lives, we recognize that our choices represent trade-offs – we sacrifice the size of our living space for a shorter commute to work or vice versa. But when it comes to politics, we seem to throw this understanding and common sense out the window. Raise taxes? No way! Cut services? Unacceptable! It’s no wonder politicians sell us a bill of goods. Because if any of them stood up and said ‘look, I’d really like to reduce taxes and improve services, but we can’t do both, so we have to choose”, we would crucify them in the court of public opinion. If we want politicians to tell us the truth, then we, as citizens, have to reward honest politicians by keeping knee-jerk reactions in check long enough for them to explain fully their platforms, and punish politicians who are obviously lying when they promise us the moon. This won't solve all of the problems with Canada's democracy, obviously, but we might get more election platforms worth voting for.

Smooth It Out Now (or We Need Analog Climate Policy Analysis)

In my first year after university, I had five roommates who were extremely smart basketball fans.  I'm your typical Minnesotan hockey player, so I had a lot to learn about basketball.  I often asked my roommates questions like: Is Scott Pollard a good center? Are the Hornets hard to beat?  Does zone defense work?  They made fun of me, noting that all my questions reduced to: is X good or bad?

 

At the time, I thought: "Fine-grained knowledge can come later, right now I need the basics, and good versus bad is important info."  But over the years I've grown to appreciate how digital thinking--i.e. 0 versus 1, on versus off, good versus bad--can lead conversations astray.

 

Climate policy thinking is in need of more analog thinking.  That is, we need to be more careful to note the continuous gradations between total climate policy failure and climate policy success.  Analog climate policy thinking would give us a 1) clearer picture of current climate policies and likely future policies, and 2) let us design more effective climate regulations going forward.  Let me give two examples.

 

1. Current and Future Climate Policies: A Continuous Spectrum

When you talk climate policy you're usually talking about unilateral national, state, provincial, or local regulations, because there's no enforceable international greenhouse gas treaty.  At the same time, greenhouse gas emissions are global, so one of the primary goals of these domestic regulations is to encourage other countries to adopt stricter climate regulations.   

 

When I present research on domestic climate regulations around the world, I almost always get a very digital question: "How can you encourage other countries to act?  Good countries will help out voluntarily, and you'll never convince the bad actors."  When I present to an audience of U.S. generalists, they generally mention China as an example of a bad actor, and when I present outside the U.S. (or to U.S. environmentalists) they usually mention the U.S. as a bad actor.  Almost everyone mentions Europe as a good actor.

 

This question makes clear that the good actor/bad actor frame is actively confusing the questioner.   Even if we could say that some countries are doing better than others, every country is constantly striking a balance between climate and economic goals, and each could regulate incrementally more or less.  Europe has a cap & trade system, it's true; but it doesn't cover all emissions, and its permit price to emit a ton of carbon has fallen below 5 EUR.  (That's less than half Alberta's 15 CAD carbon price, although Alberta's regulation applies to far fewer emissions.)  And on the flip side, China has adopted numerous policies that will slow its rising greenhouse gas emissions, including massive deployment of renewable energy.  (Here's a useful Congressional Research Service summary from 2011: http://bit.ly/1dIi1Je).  Even Saudi Arabia is planning a gigantic expansion of clean energy. (http://bit.ly/1dIi1Je).  Digital thinking is giving academics an inaccurate view of the world.

 

2. Climate Policy Mechanisms: Encouraging More Action in a Continuous Climate Policy World

Digital on/off thinking has infected our climate policy design as well.  Again, one of the most important goals for unilateral climate regulations is encouraging action elsewhere.  And one of the most promising ways to do that is with matching commitments: adopting climate regulations that automatically grow more strict when other countries strengthen their own climate regulations.  As I explain in this paper, http://bit.ly/uniclimreg (see pp. 15-21), these matching policies would encourage other countries to act by rewarding them with increased environmental benefits.  

 

But the limited attempts at using matching commitments so far have been fatally flawed by on/off thinking.  For instance, the EU has said it will increase its greenhouse gas reductions from 20% to 30% if developed nations adopt “comparable” reductions through a “global agreement.”  And Australia has a similar scheme.  But these matching commitments provide no incentive to the actual policymakers around the world who are struggling with decisions to marginally tighten or loosen greenhouse gas regulation almost every day, because no individual regulator can secure a global agreement.  These on/off commitments should be replaced with matching commitments that target climate regulations that foreign regulators can actually deliver, and smoothly ratchet up in response to stricter commitments.  Perhaps the EU could commit to match a specific percentage of reductions in the US, Canada, or Australia.  And these commitments could even target regulators in important states or provinces like California and Alberta that are calibrating the strictness of their climate policies.

 

Analog thinking also reveals the problems with the current global treaty paradigm. No country can credibly commit to years of "good" climate regulation in a single treaty.  Climate policy is too complex and covers too many politically-charged areas.  Often even countries that have "model" policies, like Australia's ill-fated carbon tax, have found loopholes with major climate impacts, such as coal exports.  (See also, British Columbia's carbon tax and its proposed LNG exports.)  And even on their own terms emissions pledges will always be fragile in a democracy, as has been repeatedly shown in Australia, Canada, and Japan.  

 

This same problem will likely hamper more modest plans for climate clubs.  I share the general interest in the recent climate pact between California, Oregon, Washington, and British Columbia.  But remember the Western Climate Initiative: it was formed by Arizona, California, New Mexico, Oregon, and Washington in 2007 . . . and then abandoned by Arizona, New Mexico, Oregon, and Washington in 2011.  Fool me twice, shame on me:  analog climate thinking says we cannot be surprised when other states and countries do not live up to their climate commitments.  We need to find ways to continuously encourage them to adopt somewhat stricter regulation, whether or not they are living up to the terms of these commitments.  We need to focus more on analog matching commitments and less on promises to be good.

 

_____________________

 

And yes, I'm still working on my analog basketball analysis.  But my former roommates still make fun of me.  After watching this recent clip (starting at 1:30), one told me I was simply ahead of my time: http://watch.thecomedynetwork.ca/the-daily-show-with-jon-stewart/full-episodes/the-daily-show-with-jon-stewart---october-29-2013/#clip1033595. (U.S. version: http://huff.to/18Tm0xu.)

 

   - James Coleman

 

Cross posted at Energy Law Prof blog: http://energylawprof.wordpress.com/2013/11/04/smooth-it-out-now-or-we-need-analog-climate-policy-analysis/

Flipped Classroom

Like many Professors, I've been thinking over the past few years about different ways of teaching law.  One of my more recent endeavours involves the "flipped classroom" - the idea that students receive a prepackaged video lecture before class to help their performance in class.  I recently travelled to University of Ottawa to meet with another "flipper" - Associate Professor Craig Forcese of the Faculty of Common Law at U of O.  We recorded our seminar, and have posted it online.  I hope it will be of interest to students and academics looking for a different way to learn.