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.