Learning From BC’s Troubling Experiments With “Professional Reliance” in Environmental (De)Regulation

Asking questions about professional reliance in BC

BC’s new NDP government recently announced a wide-ranging review of “professional reliance.” Environment and Climate Change Minister, George Heyman, was accompanied at the announcement by Green MLA Sonia Furstenau, who has been on the forefront of pressing for this review after her own experience (prior to her election) in opposing contaminated soil disposal in her own community.

West Coast Environmental Law welcomes this review, which has the potential to improve legal protection for human health and the environment by addressing a major approach to deregulation that has been implemented in BC over the past 15 years. Other provinces may wish to learn from BC’s troubling experiments with professional reliance.

What is professional reliance?

So what is “professional reliance” and why does it matter for people concerned about public health and environmental protection? In principle, all it means is taking seriously the advice of engineers, foresters, biologists, and other trained professionals in making decisions. But, unfortunately, BC’s public health and environmental laws have gone much further – increasingly turning over government decision-making to professionals hired by industry.

The theory is that trained professionals, responsible to their professional associations, are just as able to interpret and apply legal requirements set by government as government staff. As a result, several BC laws actually prevent Ministry of Environment staff from taking action even where they believe that industry-hired professional recommendations will not protect the environment or human health.

For example, under BC’s Riparian Areas Regulation (or RAR), development should be set back from fish bearing streams and lakes, to ensure that no harm to fish habitat results. However, an agrologist, biologist, forester, technologist or geoscientist hired by a developer can carry out a “riparian areas assessment” to reduce the set-backs required, or even to authorize development within the set-back. Fisheries and Oceans Canada has agreed to be bound by these rules for developments in BC.

BC’s Ombudsperson, in conducting a review of professional reliance under the RAR, pointed to examples of:

• people who did not have the qualifications required under the regulation nonetheless submitting Riparian Assessments;
• streams being mis-identified as not being fish habitat or the high water mark of fish habitat (and therefore the appropriate area to be protected) being misidentified; and,
• development being authorized in close proximity to fish habitat despite government staff believing it will impact fish habit.

On this last point, the BC Court of Appeal has ruled that government does not have the power under the RAR to intervene to prohibit development where the hired professional has authorized it, even when they believe that the development will harm fish habitat.

And it’s not just fish habitat at stake. BC’s Forest Practices Board, warned in 2015 that:

In recent years, [we have] seen situations arise where forestry development was putting local environmental and community values at risk, yet district managers could do little to affect the development and protect the public interest. … [C]onflicts between resource-users could have been avoided if district managers had the authority to intervene to ensure operations would meet local management objectives and respect tenured interests.

From our own experience as environmental lawyers, we have seen local residents warn provincial government officials that logging would impact their drinking water, only to be told that the government can do nothing – that as long as logging company foresters certify that the logging will meet provincial standards, the logging can go ahead.

Professional Reliance v. Conflict of Interest

As lawyers, we are ourselves professionals, and we recognize that professionals generally aim to use their skills in the service of their clients and consistently with their professional obligations.

But that doesn’t mean that we would want a lawyer hired by a mining company to have the last word on the legal obligations of that company to protect fish from toxins. That’s what we have judges for – to decide between different interpretations of the law.

Proponents of professional reliance argue that professionals have training, oversight and accountability that allow them to apply rules intended for the protection of human health or the environment just as well (and sometimes better) than government professionals. They argue that government’s role is to set the standards, and then monitor to make sure that those standards are met (ensuring that there are consequences if they aren’t).

We, along with many others, have grave reservations about turning to private professionals hired by a company to make decisions that require the balancing of the rights of the public with the economic interests of that company. It looks just a bit too much like the fox paying for the security of the chicken house.

It turns out that academic research related to behavioural economics demonstrates that we are right to question the objectivity of industry-hired experts.

In one of his books, The (Honest) Truth about Dishonesty, the behavioural economist Dan Ariely gives a first-hand account of his one experience of acting as a paid expert witness in a court hearing. In considering whether to do so, he reviewed the transcripts of testimony given by some of his colleagues in past trials:

… I was surprised to discover how one-sided their use of the research findings was. I was also somewhat shocked to see how derogatory they were in their reports about the opinions and qualifications of the expert witnesses representing the other side – who in most cases were also respectable academics.

Ariely nonetheless agreed to testify and was “paid quite a bit to give my expert opinion.” He became aware that the lawyers were “trying to plant ideas in my mind that would buttress their case.” He explains:

They did not do it forcefully or by saying that certain things would be good for their clients. Instead, they asked me to describe all the research that was relevant to the case. They suggested that some of the less favorable findings for their position might have some methodological flaws and that the research supporting their view was very important and well done. They also paid me warm compliments each time that I interpreted research in a way that was useful to them. After a few weeks, I discovered that I rather quickly adopted the viewpoint of those who were paying me. The whole experience made me doubt whether it’s at all possible to be objective when one is paid for his or her opinion.

It’s important to note that Ariely, by this time, was a university professor. He had a regular source of income that did not require him to take additional paid professional work. And yet he still felt compromised.

Ariely’s candid account of his own experience is supported by the wide range of behavioural economic studies that demonstrate that such interactions are only human. Ariely writes:

One other common cause of conflicts of interest is our inherent inclination to return favours. We humans are deeply social creatures, so when someone lends us a hand in some way or presents us with a gift, we tend to feel indebted. That feeling can in turn color our view, making us more inclined to help that person in the future.

Ariely recounts a study which attempted to measure the impact of a financial gift on appreciation of art. The participants were told that their payment for participating in the study was being sponsored by an art gallery (“Third Moon” or “Lone Wolfe”). They were then shown a series of sixty paintings and asked to rate how much they liked or disliked each, while they were hooked up to a brain imaging scanner (an fMRI). Each picture displayed a small logo of an art gallery – including some from Third Moon or Lone Wolfe galleries – as if the pictures had been provided by those galleries.

As you might suspect, when researchers examined the ratings they found that participants gave more favorable ratings to the paintings that came from their sponsoring gallery. … You might think that this preference for the sponsoring gallery was due to a kind of politeness … [but] the brain scans showed the same effect; the presence of the sponsor’s logo increased the activity in the parts of the participants’ brains that are related to pleasure… This suggested that the favor from the sponsoring gallery had a deep effect on how people responded to the art. And get this: when participants were asked if they thought that the sponsor’s logo had any effect on their art preferences, the universal answer was “No way, absolutely not.”

This study suggests that indebtedness actually changed the way that people perceive the world – and that they don’t realize it. It also found that increasing the amounts of payments to the participants increased this bias.

Of course, proponents of proportional representation might argue that the participants in the study were not professionals (art critics for example). And that’s true. But professionals are still human, and professionals can be very influenced by personal factors. For example, one well publicized study showed that judges (highly trained professionals) are much more likely to grant parole to defendants at the beginning of the day, or after a snack, than those who appear before them when they are hungry.

Our legal system (with a few exceptions) has always required that a government decision-maker be unbiased and, in particular, not receive a financial benefit from his or her decision. And yet under many BC environmental and public health laws, professionals who are paid by a party with a definite interest in the outcome are making key decisions. For example, in the controversial Shawnigan Lake contaminated soil debacle neither the government nor the Association of Professional Engineers and Geoscientists of BC had any issue with the project’s engineers actually having an ownership interest in the project.

Where next?

The individual appointed by the BC government to head the review of professional reliance is Mark Haddock, who, when at the University of Victoria, wrote one of the most comprehensive reviews of professional reliance in BC. Based on his conclusions in that report, it seems likely that there will be specific recommended changes for professional reliance:

… [M]uch of BC’s deregulation goes too far in handing over what are essentially matters of public interest to those employed by industry. Proponents should not be decision makers for matters involving the weighing and balancing of multiple, often completing, environmental and societal values. This raises irresolvable conflicts of interest and a lack of democratic accountability for many resource management decisions.

Reports from multiple public bodies make it clear that professional reliance is not currently striking an appropriate balance between the public interest. Moreover, behavioural economics research, as well as basic principles of unbiased decision-making, suggest that it is difficult for industry-hired professionals to ever be truly neutral – let alone pro-public health and pro-environment – in their application of government standards and rules.

At the same time, the BC government has spent almost two decades downsizing (a trend which actually began in the final years of the previous NDP government). It would be difficult to turn all environmental and public health decisions back over to government.

So Haddock’s challenge is to balance the fundamental challenges of professional reliance (as implemented in BC) with the resources available to government. Fortunately, his past report has some general principles – suggesting, for example, that government ensure that it have legal authority for decisions with particularly important consequences for human health and the environment.

With professionals making a wide range of decisions in many different public health and environmental statutes, Mr. Haddock’s recommendations have the potential to change how a wide range of decisions are made – hopefully providing for better protection of the public interest.