A growing number of citizens demonstrate in favour of the adoption of laws and international conventions that promise to protect the environment. The demonstrations triggered by the Kyoto protocol are an example. However, despite all these genuine efforts, our planet’s recent “checkup” still causes alarm. The environment continues to deteriorate despite the norms implemented both on a national and international scale. The situation forces us to question the relevance of seeking legal remedies to the environmental crisis.
Kamyar Adl, Pollution, 2006
Certains droits réservés.
Do laws and environmental agreements effectively protect the environment? The question is a good one when we see, on the one hand, governments congratulate themselves for adopting laws purported to be green, while, on the other hand, ecologists continue to express concerns with regard to laws such as the one forbidding the use of fluo bulbs (1) or others that favor corn based biofuels (2). Unfortunately, this line of questioning is not always a good one, and such is the conclusion drawn by countless studies that demonstrate that many of the measures adopted for the sole purpose of protecting the environment do not result in a positive appraisal for our planet.
Despite their best intentions, governments sometimes have trouble intervening in order to truly protect the environment. One of the problems is that during the development of regulations, governments usually take an approach that targets the pollution produced in local areas or by a specific substance or activity, and therefore bypass the larger consequences that could come from the implementation of their regulations.
Impacts Too Often Forgotten
Public authorities usually neglect two kinds of environmental impacts in the development of a regulatory framework. The first accounts for those impacts that affect aspects of the environment other than those detailed in the elaborated regulation. As it so happens, a legislative disposition imposing the reduction of emissions of a given substance might very well, in the end, increase the emissions of another substance considered just as harmful to the environment. Such was the case following the implementation of the Montreal Protocol (3). During the adoption of this protocol, the United States reached an agreement forbidding the marketing of any product containing chlorofluorocarbons (CFCs) responsible for the decreasing of our ozone layer. Industries gradually replaced CFCs with hydrochlorofluorocarbons (HCFCs), considered less harmful to the ozone layer. However, it has come to scientists’ attention that despite the beneficial properties they have on the ozone layer, HCFCs contribute to global warming as greenhouse gases (4).
Most of the time, regulations also neglect the environmental impacts attributed to other life stages of a product. Consider the regulations that, through tax exemption, favor the use of biofuels instead of gas. In Canada, these types of measures were established by the Excise Tax Act that exempts ethanol and bio-diesel of the tax imposed on traditional fuels. The government favors the use of biofuels because it generates a lower quantity of greenhouse gases, which cannot be said of conventional gas. If we only consider the stage of fuel combustion, favoring biofuels would appear to protect our environment. However, in several instances, the production and transportation of biofuels are more detrimental to the environment than conventional gas. This is what recent studies published in scientific journals, such as BioScience (5) and Natural Resources Research (6), are showing. They demonstrate that the environmental impacts associated with the use of chemical fertilizers on certain vegetables (the raw materials used in the production of biofuels) as well as the transportation, the use of agricultural machinery and the distillation could be, in certain cases, more substantial than that of the ones generated by conventional gas.
Partial consideration of environmental impacts in the conception of regulations is becoming a real problem since the impacts indirectly generated by the same regulations are often worse than the ones they tried to stop in the first place. Neglected impacts could very well minimize, if not completely neutralize, the environmental gain that was acquired through their implementation.
A Solution: Life Cycle Assessment
Despite these disappointing findings, one should not give up on laws and environmental agreements altogether, for they may still help improve the quality of our environment. As it so happens, there exists a tool that draws an accurate account of environmental impacts that governments could easily benefit from and ensure itself of the efficiency of their environmental laws: the life cycle assessment of products and services (LCA). Supported by an increasing number of environmental organizations and scientists—such as The Interuniversity Research Centre for the Life Cycle of Products, Processes and Services (CIRAIG) of the École Polytechnique de Montréal in Canada—the LCA bases itself on a methodology that appraises the materials and sources of energy used during a given product’s life time and translates these results into a portrait of the environmental impact a product would have.
So far, only a few regulations have been created using this tool. However, in the cases where it was brought into play, the LCA proved to be quite practical. Take the example of the Swiss authorities who relied on it for the development of an environmental law pertaining to the rehabilitation of contaminated soils. The “life cycle” approach was favored in many clauses of the Contaminated Sites Ordinance (7). The LCA would enable those concerned to venture away from the goals set out by the regulation with regard to the decontamination of both surface and underground water if, for example, a global reduction of pollution were achieved, if astronomical costs were avoided and if the quality requirements related to the targeted territories are respected. This way “a remediation measure both cheap and respectable of the environment [could be preferred] to that of a more radical solution, when although the former does not perfectly fulfill the goals of the remediation, ends up, all in all, improving the environmental situation.(8)” Incidentally, the Swiss regulation encourages the taking into account of the many criteria implicated in the creation of the remediation project. The implementation of this ordinance in the canton of Lucerne gave rise to interesting solutions. One of which was that of the public authorities of Lucerne who requested, in one instance, that the transportation of contaminated soils to the treatment center be done by railroad instead of trucks (9). Without going as far as the Swiss legislation, some directives given by the European Union also favor the use of the LCA, notably in the case of packaging instructions (10) and the eco-design of energy consuming products (11).
The LCAlegislation Love Story: Destined to a Bright Future in Canada?
The incorporation of the LCA in the Canadian legal arena doesn’t come without its challenges. This is already becoming apparent in some foreign jurisdictions that have introduced, for years now, the “life cycle way of thinking” and applied the LCA in the drafting of policies and environmental regulations. This is also what the Sustainable Development Act (12) leads us to believe. It was decided that this Act, adopted by the National Assembly of Quebec, would work towards the incorporation of a sustainable development within all the Assembly’s activities. This law came into affect as of April 19th 2006 and used the name “life cycle” on more than one occasion; a first in the history of environmental law for Quebec. Although it is still too early to clearly observe any effects of the notion “life cycle” within the text of this particular law, we can presume that it will open new avenues for the “life cycle way of thinking” within the public administration of Quebec. Incidentally, Canada has the privilege of possessing in its territory one of the biggest research centers for LCA in the world: the CIRAIG.
The application of the LCA by public authorities in the creation of regulations is evidently not a panacea for environmental problems. It is important to understand that the biggest issue pertaining to its use comes from the fees associated with its inception. We may notice, however, that the level of difficulty deriving from the fees associated with an LCA varies according to what is done with it. In the case of an LCA done by public authorities evaluating the environmental impacts susceptible to be derived from the targeted product, the development costs of an LCA would be considerably less significant than in the case where a legislator requests it from the subject to justify the choices and measures taken for the protection of the environment. Unlike the latter, with the former the costs rest upon the State, an entity much more capable of endorsing the high fees. In spite of the monetary obstacles, the LCA provides an interesting solution to the weaknesses of environmental law. The creation of LCAs is, among the many methodologies currently existing, the best means to insure that the legislative provision and adopted prescriptions fulfill their goals towards the protection and improvement of our environment. Finally, it is important to remember what the LCA brings to the table in relation with the other available tools using sustainable development, such as the evaluation of risks, the evaluation of environmental impacts, and the analysis of cost versus benefits.
References
(1) Also look for Fabien DEGLISE, «Pas si vertes, les ampoules fluocompactes dites écologiques», Le Devoir (Saturday 5th and Sunday, May 6th, 2007).
(2) Excise Tax Act ( R.S., 1985, c. E-15 ) is a perfect example of this situation, as it exempts ethanol, methanol and biodiezel from the excise tax imposed on conventional gas and diezel.
(3) The Montreal Protocol concerning substances that help the depletion of the ozone layer, 26 ILM (1987) 1550. This first protocol introduced during the Vienna Convention for the protection of the ozone layer was adopted as of 1987 in Montreal and came into effect as of 1989. Its major goal is to reduce the production and consuming of substances that play a role in the depletion of the ozone layer.
(4) UNITED NATIONS ENVIRONMENT PROGRAMME (UNEP). (May 2005) Report of the UNEP Technology and Economic Assessment Panel on Montreal Protocol On Substances that Deplete the Ozone Layer, Progress Report. [online] 307 pages. <http://www.unep.org/ozone/teap/Reports/TEAP_Reports/teap_progress_report_May2005.pdf>. Consulted on July 5th, 2007; It is important to note that this negative aspect does not mean that the Montreal Protocol was a failure. It is not uncommon for a regulation focusing on the protection of the environment, just like others, to include some negative consequences. However, it becomes a real problem when there are more negative consequences than there are benefits, which is not the case of the Montreal Protocol.
(5) Marcelo E. DIAS DE OLIVEIRA, Burton E. VAUGHAN & Edward J. RYKIEL. “Ethanol as Fuel: Energy, Carbon Dioxide Balances, and Ecological Footprint”. In BioScience, Volume 55, No. 7, July 2005, pp. 593-602.
(6) David PIMENTEL & Tad W. PATZEK. “Ethanol Production Using Corn, Switchgrass, and Wood; Biodiesel Production Using Soybean and Sunflower”. In Natural Resources Research, Vol. 14, No. 1, March 2005, pp. 65-76.
(7) Contaminated Sites Ordinance (CSO)of August 26th, 1998, Switzerland, R.S. 814.680.
(8) FEDERAL OFFICE FOR THE ENVIRONMENT, FORESTS AND LANDSCAPE OF SWITZERLAND. The Remediation of Contaminated Sites. Creation of Projects for the Remediation of Contaminated Sites. Berne, 2001, p. 19.
(9) Communication with Marcel Obrist of the Office of Environment and Energy of the Canton of Lucerne, Switzerland, January 26th, 2006.
(10) European Communities, Directive no 94/62/CE of the European Parliament and of the Council relating to packaging and packaging waste, O.J.E.C.n° 365 of December 31rst 1994, preamble, art. 3 and 6.
(11) European Communities, Directive no 2005/32 of July 6th 2005 of the European Parliament and the Council relating to the energy consuming products and modifying the directive 92/42 and the directives 96/57 and 2000/55, O.J.E.C. no L 191 of July 25th 2005.
(12) Sustainable Development Act, R.S.Q., c. D-8.1.1.