Environmental Regulations and Approvals

• Author: Jamie Benidickson
• Pages: 128-146

128

CHA PTER 6

ENVIRONMENTAL

REGUL ATIONS AND

APPROVALS

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

eral tendency described by Cory J, 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 objectives . . . . From

cradle to grave, we are protecte d by regulations; they apply to t he

doctors attending our entr y into this world and to the mor ticians

present at our departu re . . . . 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 the se 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 env ironmental 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 guideli nes. This chapter

addresses some of the is sues associated with designing such standards

before turning to the relationship between standards a nd 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 ls 129

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 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. Standard s are tech-

nical instr uments intended to promote or maintain certain objectives,

whether those objectives are expres sed in terms of environment al

quality and human health, biological diversity, economic development

and resource productivity, sustainabil ity, or something else. Thus, an

importa nt relationsh ip exists between env ironmental principles such

as those descr ibed 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 assess -

ing sustainability in regulatory standards; or, in situations involving

specific health r isks, it may be appropriate to incorporate the pre-

cautionary principle into the st andard-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 sta ndards), 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 dis cussion. 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 straightforwa rd and vio-

lators are far more readily identif‌i able than in the case of envi ronmental

quality objectives where the relationship between observed environ-

mental deterioration and any specif‌ic source or sources a mong hundreds

of discharges is r arely so clear. Yet ambient- quality stand ards have the

virtue of maintaining the regulatory focus on overa ll result s whereas

emission limits (especially those formulated in terms of eff‌luent con-

centrations or production ratios) have sometimes failed to address the

fundamental is sue 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.