David Cohen
1993 unpublished
This paper explores the applica1io11 of co11cepts of procedural fairness to the federal government's E11viro11mental Choice Program's decisio11-maki11g proce.,;ses. While C<madian courts have traditio11ally required public bureaucrats to act 'Jairly" when implementing command models of regulation, they have 011ly recently been confronted with demands that regulators implementing economic incemive programs also act in accordance with procedural fairness nonns. Procedural fairness has been
more » ... ed 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 decisio11-111aking categories withi11 the E11viro11mental Choice Program, and within incentive programs generally. However, the paper argues that 1/re justification for the application of fairness nonns in government incentive programs should be the promotion and support of program policies. At best, the protection of private illterests 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 operatiom into two categories. CATEGORY I decisions i11volve the deve/opme11t of enviro11111e11tal standards, and the negotiation of the licensillg agreement through which private Jinns are pennitted to use the federal government owned ECOLOGO. CATEGORY 2 decisions i11vofre individual licensing, licence tennination and renewal decisions. The paper then discusses the ways in which effective participation of a wide range of interest groups is encouraged i11 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 associtlted with effective participmion as an example of the public policy objectives of fairness doctrines.