Collateral Damage: Relaxing Environmental and Labour Standards During the Pandemic

[Vanisha H. Sukdeo & Benjamin J. Richardson] Friday, May 8, 2020

In the name of “saving the economy”, the pandemic emergency has given governments unprecedented leverage to relax environmental protections as well as labour standards perceived as hindering the survival of business or revival of economic activity. The notion that emergencies give rise to exceptions to the rule of law is uncontroversial, as scholars have acknowledged for years, and as seen in recent decades in the “war of terror” for instance. Whilst in previous emergencies during our era the collateral damage typically hit human rights, the covid-19 plague has had significant economic ramifications as well from travel bans to lockdowns of nonessential businesses.

            Crises provide political elites with an opportunity to implement what Naomi Klein dubs ‘the shock doctrine’: the collusion between business and political allies to introduce controversial, neoliberal policy changes under the pretext of a public emergency.[1] She cites Milton Friedman’s argument in Capitalism and Freedom (1962) that ‘only a crisis — actual or perceived — produces real change [and that when] a crisis occurs, the actions that are taken depend on the ideas that are lying around’. Enter Covid-19, increasingly described in the media as the gravest economic turmoil since the Great Depression. Perhaps thus unsurprisingly, some governments have rushed to waive or suspend laws long opposed as inimical to their pro-business philosophy.

            In the United States, the Trump administration has recently ordered the Environmental Protection Agency (EPA) to suspend enforcement of some environmental laws during the pandemic. Under the astonishing edict, corporate polluters may “ignore environmental law as long as they can claim in some way these violations were caused by the Covid-19 pandemic”. The leniency applies to civil non-compliance with EPA regulations rather than intentional criminal malfeasance, and may be overridden if the EPA believes there is an imminent threat to public health. The suspension of the clean air and water rules does not for now have any end date set. Cynthia Giles, former head of the EPA enforcement branch during the Obama administration, has blasted Trump’s move: “I am not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo. This memo amounts to a nationwide moratorium on enforcing the nation’s environmental laws and is an abdication of EPA’s responsibility to protect the public”. The relaxation of environmental laws apparently ensued after lobbying from the American Petroleum Institute, representing major fossil fuel businesses, who have also succeeded during the coronavirus pandemic to get the legislatures in Kentucky, South Dakota and West Virginia to enact laws designating gas and oil facilities as ‘critical infrastructure’ for additional protection, by higher criminal penalties, from any interference by protesters.

            Several provinces in Canada have likewise seized the opportunity to ease environmental laws. In April 2020, the Ontario government put on hold the requirement for public consultation on specified changes to environmental rules, policies and approvals, taking advantage section 29(1) of the province’s Environmental Bill of Rights that allows the Minister to do so where he or she believes that delay created by such a requirement would harm the public, the environment or property. Likewise, Alberta’s government has relaxed environmental reporting requirements for some industries, including for emissions of pollutants and water extractions. Also ostensibly in response to covid-19, Manitoba has during a recent emergency legislative session passed laws that may bring the province’s parks, forests and fisheries resources under greater private sector control (eg, delegated powers to issue specified licences). Further weakening of environmental laws in Canada is foreseeable given intense industry lobbying, such as the oil and gas producers’ request in April to the federal government “to freeze the carbon tax and delay new climate change regulations while the industry weathers the storm of covid-19”.

            The more immediate impact of the pandemic however has fallen on workers, especially for the millions in insecure employment, such as in the gig economy and hospitality industry. Several states including Australia and Canada have been lauded by the press for swiftly providing emergency financial support for the recently unemployed. The Australian government’s ‘JobKeeper’ payment does not provide support directly to workers but rather pays companies and other employers A$1,500 per fortnight until late September 2020, thus leaving businesses to ultimately decide who benefits. Furthermore, some two million Australian workers are not eligible to access the A$130 billion scheme, especially casual staff employed for less than 12 months and workers under temporary resident visas. Positively, Canada’s Emergency Response Benefit, which initially largely excluded gig economy workers, was amended by Prime Minister Trudeau to afford them greater coverage, though they remain a highly vulnerable group during the pandemic due to their frontline role in delivery services that potentially bring them into contact with many people.

This preferential targeting of business rather than workers is more strongly evident in the United States, where the Coronavirus Aid, Relief, and Economic Security (CARES) Act authorizes the Treasury Secretary to dole out some US$2 trillion of taxpayer funds, some of it dedicated to low-income households but much earmarked for companies. The Act envisions industry bailouts to preserve jobs “to the greatest extent practicable”, but without an obligation on business to actually preserve jobs, and the legislation lacks explicit protections to maintain worker safety during the pandemic. President Trump has also invoked the Defense Production Act 1950 to mandate that certain key industries remain open during the pandemic, one of which is meat-processing plants where workers toil in crowded conditions particularly vulnerable to virus contagion. Yet the public healthcare system in the United States is woefully underprepared to support stricken workers, and even in countries with better models, such as Canada’s, cuts to healthcare funding, such as recently in Ontario under the Doug Ford Administration, have likewise left many workers vulnerable to lack of timely and adequate healthcare in the event they contract the coronavirus.

The longer-term ramifications of the pandemic and its aftermath for environmental law and labour standards is unclear at this stage, but it’s vital that we debate those implications now with public scrutiny in order to forestall any lasting, harmful changes. We must not be lulled into complacency by the recent huge falls in air pollution and other environmental gains during the pandemic lockdown, as carbon emissions and other pollution will likely surge as economies revive. Moreover, it seems likely the pandemic will delay action on climate change as policy makers concentrate on public health and economic issues, although in the long-term, global warming poses far greater adversity for all countries. The international climate action talks, scheduled for Glasgow this year have been postponed until 2021. Further, the pandemic may leave societies drained of the political will and economic resources to invest in sustainable development.

Then again, the crisis may open a window to fresh thinking about how to respond to the disastrous sequelae of neoliberal capitalism for workers and the planet. Proposals for a New Green Deal, such as recently from Jeremy Rifkin, offer an exciting blueprint for a new economy that prioritises the well-being of workers in eco-friendly industries. Other potentially promising outcomes of the covid-19 crisis include a retreat from the hyper-individualism and free market dogma of neoliberalism, as the massive state interventions to control the emergency and impose social lockdowns have re-legitimated the role of big government as our ultimate safety-net. This may bring lasting improvements for the well-being of workers and the environment which have fared badly under the laissez-faire policies of some nations in recent decades. Further, the dramatic elevation in the importance of science in fighting the pandemic (eg social distancing rules, modelling the contagion, and development of a vaccine) may have a positive spin-off in helping to restore the importance of science in acting on climate breakdown, which has suffered from mendacious influence of climate change deniers. And finally, that the covid-19 pandemic stemmed from trespassing on natures’ domain, via the interlinked deforestation, wildlife trade and wet markets, may help the general public and policymakers better understand the connections between public health and environmental practices.

Vanisha H. Sukdeo & Benjamin J. Richardson │ Toronto / Sydney │ May 7th, 2020

[Vanisha H. Sukdeo (York University) / Benjamin J. Richardson (University of Tasmania)]

[1] Naomi Klein, The Shock Doctrine: The Rise of Disaster Capitalism (Knopf Canada, 2009),

Published by pzumbansen

law professor.

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