0685-A5
George Hoberg 1
Effective regulation of forest practices is essential for sustainable forestry. This paper described four alternative approaches: guidelines, practices-based regulation, results-based regulation, and compulsory management planning. It then examines how these approaches have been used in forest practices regulation in British Columbia, Canada, over the past decade. It describes the evolution of the Forest Practices Code, first introduced in 1994, and recent efforts by the government to move to a more results-based model. It focuses on three of the policy design challenges involved in moving towards a results-based forest practices regime: conflicting values over the use of the forest, measurability, and tailoring policies to the exceptionally varied and complex nature of the problem. It reveals how the government has struggled to adopt the appropriate mix of results-based and compulsory planning approaches.
Effective regulation of forest practices is essential for sustainable forestry. This paper described four alternative approaches, and examines how they have been used in forest practices regulation in British Columbia, Canada, over the past decade. It analyzes three of the policy design challenges involved in moving towards a results-based forest practices regime: conflicting values over the use of the forest, measurability, and tailoring policies to the exceptionally varied and complex nature of the problem.
There are a number of different approaches to forest practices regulation, reflected in different jurisdictions around the world. First, guidelines can be used to identify recommended practices. In this case, the standards are not legally binding, and operators cannot be penalized for not adopting them. Second, technology- or practices-regulations specify particular forest practices that must be used in certain circumstances. An example would be a 20 meter buffer strip on a fish-bearing stream. Third, performance- or results-based regulations specify an outcome to be achieved rather than a specific practice. In the case of stream protection, an example would be maintaining water quality within the natural range of variation. Unlike guidelines, practices and results-based regulations are legally enforceable. The final approach to regulating forest policy is compulsory management planning, which requires operators to prepare a management plan but does not specify any particular practices or results that must be achieved.
These four approaches are not mutually exclusive. Indeed, a number of combinations are possible. Policy makers might chose to have legally-binding practices or results for some values or situations, but rely on guidelines for others. Management plans could be required to meet certain performance requirements.
The challenge for policy makers is to adopt the most appropriate approach, or mix of approaches, for the conditions they face. The optimal choice will depend on a number of factors (Coglianese and Lazer 2002). When objectives are easily measured, performance-based regulations are desirable. Since operators usually have superior information about how best to achieve a particular result, performance standards can be more cost-effective. When objectives are not easily measured, however, policy makers are more likely to rely on practices regulations that they believe will adequately protect the value of concern. However, when the problems confronting managers are highly diverse, uniform practices or performances regulations are likely to be ineffective. In this case, compulsory management planning might be the best alternative. It allows operators to tailor forest practices to distinctive local circumstances.
The government of British Columbia introduced a Forest Practices Code in 1994. The Code was based on a mix of compulsory management planning and practices regulations. Planning was required at three levels: strategic, operational, and site level. At the strategic level, management zones and objectives were to be created at the regional and landscape unit level. At the operational level, the most important plan was the Forest Development Plan, a five-year plan that identified general areas of cutblock and road locations. The key site plan was the silviculture prescription, which specified particular silvicultural practices for that location. The operation and site plans needed to be reviewed and approved by government. There were also a number of highly prescriptive practices standards. For example, there were maximum limits on cutblock size (40 hectares in some areas, 60 in others), and buffer strips on larger fish bearing streams.
Even before it was implemented, the Forest Practices Code was criticized for being too prescriptive and too oriented towards planning and process and not sufficiently focused on on-the-ground results. As the Code was implemented, criticism of it intensified. Environmentalists were dissatisfied with its environmental performance, particularly the fact that progress in implementing strategic planning was so poor. Industry was critical of its operational and transaction costs, and even the government became disenchanted when it realized it could not effectively staff the cumbersome planning process (Hoberg 2001). A shift to a more results-based model has been considered desirable to reduce costs to both industry and government, and to move away from the overly prescriptive approach of the existing Code that many think is inefficient and ineffective.
Following through on a commitment made in its 2001 campaign platform, in May 2002 the BC Liberal government introduced a proposal to simplify the code, moving from a prescriptive, process orientation to one focused instead on results.
In BC government proposed a new results-based code in a May 1, 2002 discussion paper. The proposed legal framework for the results-based code contained three main pillars (Government of BC 2002):
In developing the proposal, the government was guided by 6 assumptions
The proposed results-based code would reduce the complexity of the regulatory framework. - the government estimates is that it would reduce regulatory requirements by a 70% (Hoberg 2002).
The consultation process revealed widespread opposition to the government's proposal (Hoberg 2002). But different interests hated it for different reasons. Industry groups were sharply critical of the proposal because they believe it still contains too many prescriptive rules, and they do not believe it will reduce their costs. Environmental groups were also sharply critical, but for the opposite reason. They believe the proposal weakens environmental standards and gives too much control to the industry.
Value differences
There were sharp value differences that have characterized conflicts over forest policy in BC over the past several decades, outlined in Table 1. Industry put timber first, with environment as an afterthought. Environmentalists put the ecology first, with timber production a residual. There were also very sharply different factual assumptions, most of them unarticulated and examined, about the relationship between competing objectives.
Environmentalists believe the forest environment is very fragile, and that timber production at current levels harshly constrains environmental values. Industry sees the forest environment as highly resilient, and thinks there is only minimal constraints between timber and environmental values.
Table 1
Industry |
Environmental |
timber first |
environment first |
smaller government |
larger government (but don't trust it) |
trust industry |
distrust industry |
trust professionals |
distrust professionals |
forest environment is resilient |
forest environment is fragile |
minimal constraint between timber and environmental values |
timber production harshly constrains environmental values |
The different worldviews were very powerful in influencing a wide range of perceptions about the proposed results-based code. Looking at the same document, people coming from each perspective saw remarkably different things. For example, in the case of environmental standards, the Council of Forest Industries, BC's main industry association, denounced a number of them as "worse than the existing Code," meaning that they would be more restrictive and/or costly for industry to comply with (COFI 2002). Looking at the same standards, environmentalists believe the proposed results-based code would threaten environmental standards they view as already too weak. Industry's characterization is dramatically at odds with the criticisms of environmental groups that the results-based approach threatens environmental values because it reduces government oversight and delegates too much responsibility to industry.
Measurability
There was general agreement that many of the results statements were vague, unmeasurable, and unenforceable. For example, West Coast Environmental Law (2002) states "there is broad awareness, including within both the Ministry of Forests and industry, of the fact that the proposed Code lacks measurable, auditable, and enforceable standards." The Forest Practices Board (2002, p. 6) raises similar problems: "Some of the results proposed in the discussion paper are not clear and measurable. For other results, measurement will depend on having baseline information that, in many cases, does not currently exist." Many industry groups and First Nations echoed these concerns about clarity and measurability.
Industry representatives are also concerned that the framework relies far too much on prescriptive rules. They are particularly concerned about what they characterize as a "one-size fits all approach." COFI describes this concern as follows:
We do not agree that results developed are enforceable. The very nature of an approach that specifies a single result for all operations on all lands in the province requires the result to be so general that it is not realistic, achievable or enforceable. The approach does not take into consideration natural variability, differing priorities, differing risks or the reality that forestry operations have impacts on the land base...An effective and efficient results based Code must allow for results that are based on regional social, economic and biological realities. It is inconsistent with the objective of providing the industry "freedom to manage" in the delivery of results (COFI 2002, p. 33).
Industry is also concerned that some results and rules are applied at an inappropriate level. Generally, industry would prefer that rules apply at the landscape, rather than stand level, so they have more flexibility to meet the objectives.
Divergent approaches for accommodating spatial diversity
Industry and environmentalists have quite different visions about how to protect forest values. Environmentalists prefer prescriptive, generally applicable rules with legal force -- indeed, one of the most detailed environmental briefs provided in the process proudly endorses "command and control" regulation, a phrase almost always used in derogatory terms (Sierra Legal Defence Fund and Forest Watch 2002, pp. 8-10). Environmentalists believe the discussion paper is far too flexible, and insufficiently prescriptive. Environmentalists want clearer, more measurable results and rules. Several groups propose that the results and rules should be based on independent review by scientists. To the extent that there are variations in conditions, they should be addressed by more refined rules that account for differences - for example by allowing old forest retention requirements to vary by natural disturbance type.
Industry suggests a dramatically different approach. Rather than relying on generally applicable results or rules, industry groups proposed to have results developed by licensees in Forest Stewardship Plans or sustainable forest management plans. This would allow industry the flexibility to tailor results and rules to local circumstances.
The industry solution - to give industry the flexibility to tailor standards to local circumstances - raises alarm bells within the environmental community. Environmentalists are strongly opposed to what they see as "industry writing their own rules." They believe this would amount to "letting the fox guard the henhouse."
The government's discussion paper adopts a particular balance between uniformity and flexibility. There are a number of results and rules that apply across the province, although many of them contain variation. For example, riparian rules vary by type of stream, and soil conservation rules depend on the characteristics of the soil. In other cases, variation is provided for by exemptions, some of which are very general. These exemptions create far too much flexibility for environmentalists, because they don't trust how they will be applied. They fear they will be used to undermine environmental standards. Industry, on the other hand, wants to get out of the rule framework altogether.
Perhaps the most vexing challenge in designing any forest practices regime is how to provide for variability over space and time. One of the great dilemmas in forestry is tailoring policy design to the exceptionally varied and complex nature of the problem. Hamish Kimmins writes that it was "the Great Mistake" of earlier stages of forest management "to ignore the spatial variability in the ecological characteristics of the forest" (Kimmins 20002, 16). Uniform rules that apply across the province may be clear and easy to understand, but they will not be effective or efficient if the circumstances in which they apply vary significantly. Policies designed to account for the variation in ecological, economic, and social conditions across the province may be more effective in some ways, but their complexity may make it harder to assure the public that the values they want in the forest are being protected. Adapting to new information or conditions that emerge over time is also a difficult task.
Finding the optimal precision of rules - a phrase developed by law scholar Colin Diver - is a difficult design challenge. Diver describes three criteria for optimal precision:
The example of a speed limit illustrates the differences in the criteria and the dilemmas confronting efficient rule design. A uniform speed limit, such as 80 kilometres per hour, has the virtue of simplicity and transparency. It rests on a single variable that is relatively easily measured, whether by a speedometer or a radar gun. The problem is that the rule is not congruent -- there may be some situations (e.g., a clear dry day with little traffic) in which higher speeds are safe, and others (snow or ice) in which only substantially lower speeds are safe. A speed limit that would attempt to address this problem of congruence, e.g., one that says "drive safely depending on the conditions," would increase problems of transparency.
The major dilemma is how to design rules that match exceptionally diverse problems, while simultaneously being simple and clear. There are several alternatives for making rules congruent to the problems they are attempting to address:
Environmentalists generally prefer the strategy of "prescriptive congruence," where rules are clearly set down in law, and variation is built in. Industry prefers the delegation models.
In trying to strike this balance, policy makers need to take into account environmental effectiveness, economic efficiency, but also social and political criteria such as legitimacy and accountability. In some cases there may be significant tensions between economic and social and political objectives. For example, policy design that relies on professional discretion may be economically desirable, but the lack of transparency may create significant problems with accountability. The dilemma is how to provide for the flexibility needed to address the tremendous variation of circumstances across the province's forests, while simultaneously ensuring environmental values are protected, and demonstrating that they are protected.
The central problem with the design of the results-based code is that industry and environmentalists disagree fundamentally about how to address this dilemma, and the government needs to find a way to address this dilemma. It needs to reduce industry costs to restore the sector's competitiveness. But if it does anything that can plausibly be claimed to weaken environmental standards, the government risks re-igniting the market campaign against BC forest products.
One of the core recommendations emerging from the consultation process was to suggest a different model that would build in more flexibility without jeopardizing environmental values. Sustainable forest management (SFM) planning is one of the most important and innovative developments in forest management over the past half decade, yet the legal framework proposed in the discussion paper ignored it. The consultation report recommended that government establish a basic regulatory framework that is designed to adequately protect environmental values. For those licensees who have the resources to do robust SFM planning, an option could be provided where they can substitute the results and rules they have developed for parts of the government regulatory model. But they could only be exempted from the regulatory model if they can demonstrate that they can meet or beat the environmental values provided in the regulatory model. Not all licensees may choose to do that, or have the resources to do so effectively. They would have to comply with the requirements of the government regulatory framework.
This proposal provides incentives for industry to be innovative in how to meet environmental requirements, and could facilitate coordination between government approvals and voluntary, independent certification requirements. It could also assure the public that some basic level of environmental values were being protected, while simultaneously providing companies the flexibility to adapt to their own particular circumstances.
After the public consultation process was completed, the government entered a new round of bi-lateral discussions with industry, and emerged with a new legislative framework. The Forest and Range Practices Act was introduced into the legislature November 4, 2002. The new Act reflects a potentially significant departure from the framework proposed in the May 2002 discussion paper.
The new Act retains the discussion paper's emphasis on land use zones and objectives, but changes the Resource Development Plan into a far more elaborate Forest Stewardship Plan. The major change in approach is that they government has abandoned the effort to put measurable results into province-wide regulations. Instead, licensees are required to develop measurable results and strategies for a list of forest values specified by the government, and prepare and submit a plan to the government for review and approval (BC Ministry of Forests, 2002).
In essence, the government has shifted from a model of results-based regulation to compulsory management planning. It appears the government intends to include more detail about environmental objectives, and some default environmental standards, in regulation. But as of November 15, 2002, the government has yet to explain how it will do so. As a result, it is unclear what combination of approaches will ultimately guide forest practices in BC. The government has indicated that it agrees to create more flexibility, but it has not explained how it will balance economic and environmental objectives.
BC Forest Practices Board. 2002. Comments on the Government's discussion paper. June. Available at http://faculty.forestry.ubc.ca/rbc/ForestPracticesBoard.pdf
BC Ministry of Forests. 2002. Forest and Range Practices Act. Available at www.for.gov.bc.ca/code.
Cary Coglianese and David Lazer. 2002. "Management-Based Regulation: Prescribing Private Management to Achieve Public Goals." draft manuscript, Kennedy School of Government, Harvard University.
Council of Forest Industries. 2002. Final Comments on A Results-Based Forest and
Range Practices Regime for British Columbia. Available at http://faculty.forestry.ubc.ca/rbc/discussion_paper_comments_final.pdf
Diver, Colin. 1989. "Regulatory Precision." In Keith Hawkins and John Thomas, eds, Making Regulatory Policy. Pittsburgh: University of Pittsburgh Press.
Forest Caucus of the BC Environmental Network. 2002. Joint Presentations to StakeholderProcess - Results Based Code Discussion Paper. June 26. Available at http://faculty.forestry.ubc.ca/rbc/Forest_Caucus_BCEN.pdf.
Government of British Columbia. 2002. Discussion Paper - A Results-Based Forest and Range Practices Regime for British Columbia. Available at www.resultsbasedcode.ca.
Hoberg, George. 2001. "The 6 Percent Solution: The Forest Practices Code," in Benjamin Cashore et al. In Search of Sustainability: British Columbia Forest Policy in the 1990s. Vancouver: UBC Press.
Hoberg, George. 2002. Finding the Right Balance: Report of Stakeholder Consultations on A Results-Based Forest and Range Practices Regime for British Columbia, July 25. Available at www.resultsbasedcode.ca.
Kimmins, J.P. 2000. "Respect for Nature: An Essential Foundation for Sustainable Forest Management." In Ecosystem Management of Forested Landscapes: Directions and Implications. Robert D'Eon, et al, eds. Vancouver: UBC Press.
Sierra Legal Defence Fund and Forest Watch of British Columbia. 2002. Who's Minding Our Forests? Deregulation of the forest industry in British Columbia. Vancouver, BC. Available at http://sierralegal.org/reports/Who's_minding_our_forests.pdf.
West Coast Environmental Law. 2002. Submission on Results-Based A Results-Based Forest and Range Practices Regime for British Columbia. June. Available at http://faculty.forestry.ubc.ca/rbc/WCEL.pdf
1 Head of Department of Forest Resources Management, University of British Columbia, 2424 Main Mall, Vancouver, BC V6T 1Z4. [email protected]