Environmental Regulations and Approvals

• Author: Jamie Benidickson
• Pages: 122-140

122

chA Pter 6

ENVIRONMENTAL

R EGULATIONS

A ND APPROVALS

The prevalence of environmental regulations i s consistent with a gen-

eral tendency describ ed by Justice Cory, formerly of the Supreme Court

of Canada:

Regulatory me asures are the pr imary mecha nisms employed by gov-

ernments in C anada to implement public policy objective s . . . . 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 a s a whole. From cradle to

grave, we are protected by regu lations; 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 activit y, 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 t hat has been formulated to pro-

tect the environment from various forms of degradation.

The basic purposes of an env ironmental protection regime are

typically embodied in statutory schemes and in statements of off‌icial

policy. In Canada actual perform ance requirements are generally es-

tablished by regulation or admi nistrative guidelines. Thi s chapter ad-

dresses some of the is sues associated with designing such standa rds

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. stA ndArd-setting

1) Introduction

Standard-setti ng in the environmental context ha s 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 th at

pollution standards are as sociated — explicitly or implicitly — with

underlying goals relating to environmental quality. Standard s are tech-

nical instr uments 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 e xists bet ween environmental principles such a s

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

By way of example, if sustain ability 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 r isks, it may be appropriate to incorporate the precaution-

ary principle into the sta ndard-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 stand ards), or possibly in terms of

operational practices or design a nd technology requirements (design

standards).3

Each of these approaches has a contr ibution to make, although

their comparative merits are subject to heated discussion. Advocates

of emission standard s 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 v iolators are far more readily identif‌iable tha n in

the case of environmental quality objectives where the relationship be-

tween observed envi ronmental 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.