Environmental Regulations and Approvals
Author | Jamie Benidickson |
Pages | 128-146 |
128
CHAPTER 6
ENVIRONMENTAL
REGULATIONS AND
APPROVALS
The prevalence of environmental regulations is consistent with a gen-
eral tendency described by Cory J, formerly of the Supreme Court of
Canada:
Regulatory measures are the primary mechanisms employed by gov-
ernments in C anada to implement public policy objectives . . . . 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 t he 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 protect
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 offi-
cial 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 usually required by t hose whose operations entail impacts
on or discharges into the natural environment.
1 R v Wholesale Travel Group Inc, [1991] 3 SCR 154 at 220–22.
Environment al Regulations and Approva ls129
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.”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 expressed in terms of environmental
quality and human health, biological diversity, economic development
and resource productivity, sustainability, or something else. Thus, an
important relationship exists between environmental principles such
as those descr ibed 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 assess-
ing sustainability in regulatory standards; or, in situations involving
specific health risks, it may be appropriate to incorporate the pre-
cautionary principle into the standard-setting process.
Standards may be formulated in various ways, some directed at
allowable 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 contr ibution to make, although their
comparative merits are subject to heated discussion. Advocates of emis-
sion standards or lim its applicable to particular industri al operations and
other dischargers of pollutant s point to their obvious administrative and
legal convenience. Monitoring is comparatively straightforward and vio-
lators are far more readily identifiable than in the case of environmental
quality objectives where the relationship between observed environ-
mental deterioration and any specific source or sources a mong hundreds
of discharges is rarely so clear. Yet ambient- quality standards have the
virtue of maintaining the regulatory focus on overall results whereas
emission limits (especially those formulated in terms of effluent con-
centrations or production ratios) have sometimes failed to address the
fundamental issue of levels of overall pollution that are acceptable in
2 D Macdonald, The Politics of Pollution (Toronto: McClelland & Stew art, 1991) at 159.
3 For a valuable general comment ary, see R Macrory, Regulation, Enforceme nt and
Governance in Env ironmental Law (Oxford: Hart, 2010) ch 9.
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