Environmental Regulations and Approvals

• Author: Jamie Benidickson
• Pages: 122-140

122

chAPter 6

ENVIRONMENTAL

REGULATIONS

AND APPROVALS

The prevalence of environmental regulations is consistent with a gen-

eral tendency describ ed 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 th ink of an aspect of our lives that is not reg ulated 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 at-

tending our entr y into this world and to the mortician s present at our

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

for and the greater our reli ance upon regulation and its enforcement.1

Although critics might dispute Justice Cory’s concluding assertion, an

explanation along the line s he sets out 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.

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 es-

tablished by regulation or administrative guidelines. This chapter ad-

dresses some of the issues associated with designing such standards

before turning to the relationship between standards and the permits

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

Environment al Regulations and Approva ls 123

or approvals usually required by t hose 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 en-

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

pollution standards are associated — explicitly or implicitly — with

underlying goals relating to environmental quality. Standards are tech-

nical instruments intended to promote or maintain certain objectives,

whether those objectives are expres sed in terms of environmental qual-

ity and human health, biological diversity, economic development and

resource productivity, sustainability, or something else. Thus, an im-

portant relationship exists between environmental principles such as

those described in Chapter 1, and legislative and regulatory practice.

By way of example, if sustainability is an intended policy outcome, it

will be appropriate to incorporate measures or indicators for assessing

sustainability in regulatory standards; or, in situations involving cer-

tain health risks, it may be appropriate to incorporate the precaution-

ary principle into the standard-setting process.

Standards may be formulated in various ways, some directed at al-

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

measurements of environment al 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

operations and other dischargers of pollutants point to their obvious

administrative 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 be-

tween observed environmental deterioration and any specif‌ic source

2 D Macdonald, The Politics of Pollution (Toronto: McClelland & Ste wart, 1991) at

159.

3 For a valuable general comment ary, see R Macrory, Regulation, Enforceme nt and

Governance in Env ironmental Law (Oxford: Hart Publi shing, 2010) c 9.