Environmental Regulations and Approvals

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 105-121

105

CHAPTER 6

ENVIRONMENTAL

REGULATIONS AND

APPROVALS

1R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 at 220–22.

The proliferation of environmental regulations is consistent with a

general tendency described by Justice Cory, formerly of the Supreme

Court of Canada:

Regulatory measures are the primary mechanisms employed by gov-

ernments in Canada to implement public policy objectives. . . . It is

difficult to think of an aspect of our lives that is not regulated for our

benefit and for the protection of society as a whole. From cradle to

grave, we are protected by regulations; they apply to the doctors

attending our entry into this world and to the morticians present at

our departure. . . . The more complex the activity, the greater the

need for and the greater our reliance upon regulation and its

enforcement.1

An explanation along these lines might well be offered to account

for the extensive body of regulations that has been formulated to pro-

tect the environment from various forms of degradation. Although the

basic purposes of an environmental protection regime are typically

embodied in statutory schemes and in statements of official policy, in

Canada actual performance requirements are generally established by

regulation or administrative guidelines. This chapter addresses some of

the issues associated with designing such standards before turning to

the relationship between standards and the permits or approvals usu-

106 ENVIRONMENTAL LAW

2 D. Macdonald, The Politics of Pollution (Toronto: McClelland & Stewart, 1991)

159.

3 For a useful overview of approaches to pollution control, see N. Haigh, EEC

Environmental Policy and Britain, 2d ed. (London: Institute for European

Environmental Policy, 1989).

ally required by those whose operations entail impacts on or discharges

into the natural environment of air, land, and water.

A. STANDARD-SETTING

1) Introduction

Standard-setting in the environmental context has been described as

“the process of deciding how much pollution will be allowed to enter

the environment each year.”2Yet it is important to appreciate that pol-

lution standards are typically set in the context of underlying goals

relating to environmental quality. They are technical instruments

intended to promote or maintain certain environmental objectives,

whether those objectives are expressed in terms of human health, bio-

logical diversity, resource productivity, sustainability, or something

else.

Standards may be formulated in various ways, some directed at

allowable emission levels (emission standards), others based on actual

measurements of environmental quality in the relevant media, whether

air, water, or land (ambient-quality standards), or possibly in terms of

operational practices or design and technology requirements (design

standards).3

Each of these approaches has a contribution to make, although

their comparative merits are subject to heated discussion. Advocates of

emission standards or limits applicable to particular industrial opera-

tions and other dischargers of pollutants point to their obvious admin-

istrative and legal convenience. Monitoring is comparatively

straightforward and violators are far more readily identifiable than in

the case of environmental quality objectives where the relationship

between observed environmental deterioration and any specific source

or sources among hundreds of discharges is rarely so clear. Yet ambi-

ent-quality standards have the virtue of maintaining the regulatory

focus on overall results whereas emission limits (especially those for-

mulated in terms of effluent concentrations or production ratios) have

sometimes failed to address the fundamental issue of levels of overall