Regulations are the practical details that make it possible to enforce or understand how the large concepts, usually dealt with in statute, will work on the ground. For example, a regulation may include how much information is required in order to fulfill an obligation under a statute or they may set out the cost of non-compliance. Regulations are always tied to a statute, but not all statutes have regulations.

Regulations are a critical component of environmental law. This is in part because enforcing grand ideas such as how and where to dump pollution or how to understand whether the air in your area is clean enough to be up to legislative standards requires specific rules and measures.

Let’s use a simple example to illustrate, imagine that a statute says “You need to keep the kitchen clean”. This could lead to a lot of questions: what exactly does ‘clean’ mean in this context, does this rule also include the dining room, etc.?

So, if the regulation defines clean as being “dishes put away, floor swept, and garbage emptied” and defines the kitchen as being “the space between the breakfast table and fridge” it becomes more understandable.

This is the same as a regulation, which makes it easier to understand how to uphold the law as it was written in statute. Overall, the more complicated an area of law, the more regulations may be required.

As you have already seen, environmental law is a complex area that combines science, public policy, and development and often requires significant regulations to promote clear and standardized rules across the board.

The basic purposes of an environmental protection regime may be found in statute, however, the actual performance requirements are found in environmental regulations.

One important aspect of environmental regulations is that they set standards. Standards can include allowable emission levels, environmental measurements, operational practices or design, and technology requirements.

Regulations use environmental policy outcomes, such as the precautionary principle (defined below) to determine what rules will be needed to meet certain policy goals.

Regulations will limit actions but will also provide exemptions to these limitations. For example, they can set out the requirements for environmental licenses, permits, or approvals and provide exemptions from the blanket rules that are found in some environmental statutes. These sections provide some flexibility while also allowing the government to ensure that before an exemption is granted, certain procedures are in place to lessen any potential environmental harms.[1]

Another important aspect of regulatory law is that it helps to determine how breaches of the standards set out in both the regulations and statutes are to be enforced. Regulatory bodies can ensure compliance with environmental standards through a requirement for self-reporting, inspections, administrative orders (such as ordering an individual or company to clean up a contaminated area), and monetary penalties.

For more serious offences or when an earlier enforcement mechanism has failed or been disobeyed, environmental legislation provides the option of criminal prosecution. These prosecutions are commonly known as regulatory offences. They are similar to criminal offences but they do not hold the same weight as a ‘true crime’, such as murder or assault.

Notably, although the Criminal Code is not specifically concerned with environmental law, it does state that someone is criminally negligent if, while doing anything or in omitting to do anything that it is his or her duty to do, shows wanton or reckless disregard for the lives or safety or health of the public.[2] Criminal negligence is available as a charge in the event that an individual’s disregard for environmental standards rises to this prescribed level of negligence. In that case, jail may also be used as an enforcement mechanism. It is more common to deal with environmental law in the realm of regulatory rather than criminal law, although it is possible to criminally charge someone for an environmental offence.

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[1] Jamie Benidickson, Environmental Law, 4d ed (Toronto: Irwin Law Inc., 2013) at 123 – 139.

[2] Jamie Benidickson, Environmental Law at 169.

 

 

 

Fundamentals of Environmental Law

Lesson Plan: Fundamentals of Environmental Law
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Lesson Plan: Tragedy of the Commons
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