Procedural Fairness and Incentive Programs: Reflections on the Environmental Choice Program

Abstract

This paper explores the application of concepts of procedural fairness to the federal government's Environmental Choice Program's decision-making processes. While Canadian courts have traditionally required public bureaucrats to act "fairly" when implementing command models of regulation, they have only recently been confronted with demands that regulators implementing economic incentive programs also act in accordance with procedural fairness norms. Procedural fairness has been justified through a number of related arguments, all of which focus on the protection of private interests of individuals adversely affected by the exercise of bureaucratic power. The paper argues that procedural fairness should characterize both decision-making categories within the Environmental Choice Program, and within incentive programs generally. However, the paper argues that the justification for the application of fairness norms in government incentive programs should be the promotion and support of program policies. At best, the protection of private interests is the means through which program benefits can be optimally designed, and effectively delivered to the public. The paper describes the Environmental Choice Program's decision-making processes, and divides the program's operations into two categories. CATEGORY 1 decisions involve the development of environmental standards, and the negotiation of the licensing agreement through which private firms are permitted to use the federal government owned ECOLOGO. CATEGORY 2 decisions involve individual licensing, licence termination and renewal decisions. The paper then discusses the ways in which effective participation of a wide range of interest groups is encouraged in both categories of decisions through access to information, representation on decision-making bodies, and appeal and review processes. Finally, the paper describes the environmental benefits associated with effective participation as an example of the public policy