Environmental Regulations and Approvals

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 120-138

120

chA Pter 6

ENVIRONMENTAL

REGULATIONS

AND APPROVALS

The proliferation of environmental regulations is consistent with a gen-

eral tendency described by Justice Cory, formerly of the Supreme Court

of Canada:

Regulatory measures are t he prima ry mecha nisms employed by gov-

ernments i n Canada to implement public policy objectives . . . . It is

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

benef‌it and for t he protect ion of society as a whole. From cradle to

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

tending 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 rel iance upon regulation and its enforcement.1

Although critics might dispute Just ice Cory’s concluding a ssertion, an

explanation along the lines 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 per mits

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

Environment al Regulations and Approva ls 121

or approvals usually 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-setti ng in the envi ronmental context h as been described as

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

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

lution standards are established — explicitly or implicitly — in the con-

text of underlying goals relating to environmental quality. Stand ards are

technical instruments intended to promote or maintain cert ain object-

ives, whether those objectives are expressed in term s of environmental

quality and human health, biological diversity, economic development

and resource productivity, sustainability, or somethi ng else. Thus, an

important relationship exists between environmental principles such

as those described in Chapter 1, and legislat ive and regulatory practice.

By way of example, i f sust ainability is an intended policy outcome, it

will be appropriate to incorporate measures for assessing sustainability

in regulatory standards; or, in situations involving certain health risks,

it may be appropriate to incorporate the precautionary principle into

the standard-sett ing process.

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

lowable emi ssion levels (emission standards), others based on actua l

measurements of environmental quality in the relevant media, whether

air, water, or land (ambient-quality standard s), 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 di scussion. Advocates

of emission stand ards or lim its applicable to part icular industrial

operations and other di schargers of pollutants point to their obvious

administrative and legal convenience. Monitoring is comparatively

straightforward and violators are far more readily identif‌i able than in

the case of environmental qual ity objectives where the relationship be-

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

159.

3 For a useful over view of approaches to pollution control, se e N. Haigh, EEC En-

vironmental Policy and Br itain, 2d ed. (London: Institute for Europe an Environ-

mental Policy, 1989).