Regulatory capture in Canadian environmental decision-making
University of British Columbia
Master of Laws - LLM
This thesis examines regulatory capture, a phenomenon that occurs when a regulator subverts their mandate from representing the public interest, to representing the interests of the industry that they regulate. Diagnosing and preventing capture is challenging as the process of capture often occurs in areas of governance where it is not illegal, and frequently overlaps with other legitimate stakeholder engagement. Canadian environmental law is an area where regulatory capture is a significant risk due to the extensive influence of resource extraction industries, and conservation efforts may be undermined due to growth of those industries being within the legislative mandates of environmental regulators. The 2014 Mount Polley mining disaster in BC Canada was a situation where the capture of a regulator was linked with lapses in inspection, compliance, and enforcement standards, resulting in Canada’s worst environmental disaster to date. I chose to reconcile the regulatory capture literature by compiling a list of common indicia that may be considered when assessing if a regulatory body is captured or is vulnerable and at-risk of capture. The Mount Polley disaster and the audit that followed it are used to exemplify what these indicia look like before, during, and after environmental harm caused by capture. This is followed by a critical analysis of the economic theories that eventuated in the concept of capture, such as public choice theory. I contrast how regulatory capture literature has diverged from these theories over the past 60 years, specifically the question of whether capture is a risk or an inevitability. Focusing on the indicia of ‘bias in decision-making’ reveals that even within otherwise robust legal frameworks – specifically, the reasonable apprehension of bias test - the public interest and impartial decision-making can still be affected by the influence and pressure of industry. Throughout this analysis is the recurring problem that capture affects regulators at an institutional level, and that prevention and mitigation is critical.
Attribution-NonCommercial-NoDerivatives 4.0 International
Law, Peter A. Allard School of