Chapter 5 - Environmental Protection Regimes and Regulatory Tools Flashcards
What are the two categories of environmental law that operate in all Canadian jurisdictions?
- Private Law
- Public Law
What does Private Law pertain to?
Personal rights, such as the right to protect one’s own property and interests.
What is Public Law?
Law enforced by the state against those who fail to abide by it.
True or False: Most environmental law in Canada is public law.
True
What are the key elements of public law?
- Regulatory Frameworks
- Regulations
- Policies
Describe Private Law:
Individuals exercise rights against others to protect their own property or interests.
Describe Public Law:
The state imposes regulatory frameworks that set environmental standards and consequences for non-compliance.
What is an example of Public Law?
The federal Environmental Protection Act (1999)
What is an example of Private Law?
Torts, Ontario Environmental Bill of Rights (1993)
What is Private Law sourced from?
Common law or civil law
What are the two key underlying mechanisms under all regulatory regimes?
- A “command” function that involves setting standards for acceptable human behaviour regarding environmental protection.
- A “control” function that involves ensuring compliance with this standards.
What are Common Law Rights?
Rights to sue for environmental harm.
What is a simple description of Public Law?
The use of powers of government to control and regulate societal behaviour.
The ___________ function involves setting standards for acceptable human behaviour.
command
The _____________ function involves ensuring compliance with those standards.
control
Define Command and Control:
State intervention involving the creation of rules and the enforcement of those rules.
What are two of the outcomes from Environmental Protection Act (1999)?
- No specific enforceable regulations had been passed for water pollution protection.
- Air pollution standards were weak and difficult to enforce.
What are the three basic types of Environmental Regulatory Regimes?
- Media-based Regimes
- Approval-based Regimes
- Sector-based Regimes
__________-based Regime: Regulatory framework that apply to a particular environmental medium, such as air, water or land.
Media
_____________-based Regimes: Regulatory frameworks in which otherwise-prohibited activities can occur if government permission or approval is obtained.
Approval
____________-based Regimes: Regulatory frameworks that apply to a particular sector or specific area, such as energy, endangered species, or agriculture.
Sector
What is one of the more common environmental regimes, and what three components does it include?
Media-based, including Air, Water and Land.
What is whole-facility permitting?
An approach to granting permits that involves a review of all the environmental exposures from a particular facility.
Provide an example of a media-based environmental regime:
Ontarios Clean Water Act (2006)
What is a key takeaway of Media-based Regimes?
It is a recurring and pervasive theme of environmental law.
Environmental Approvals are associated with which type of environmental regime?
Approval-based Regimes
What is an Environmental Approval?
Permission issued by a government agency or official to carry out an activity that may impact the environment, provided that certain conditions are met (Licenses and permits).
What are the three key components of Environmental Legislation?
- Standard Setting
- Approvals
- Compliance
What is the purpose of Standard Setting?
Establish reasonable limits and restrictions to prevent environmental harm based on science and policy.
What is the purpose of Approvals in Environmental Legislation?
Establish permission and conditions/site specific rules for certain activities based on their potential environmental impacts.
What is the purpose of Compliance in Environmental Legislation?
Establish penalties, if any, for non-compliance.
By what process do standards become incorporated into approval documents?
Under:
- regulatory limits
- objectives
- guidelines
- criteria
What are licenses and permits?
Permissions issued by a government agency or official to carry out an activity that would not otherwise be permitted by law, typically accompanied by certain conditions/requirements that must be met by the individual or facility to which the permission has been granted
What do Sector-based Regimes involve?
Laws or policies that apply to a particular sector or area (Energy, endangered species, etc.)
True or false: Sector-based Regimes incorporate elements from Media-based and Approval-based Regimes.
True.
What are two key ‘tools’ in the Command and Control ‘toolbox’ in environmental legislation?
- Set standards for environmental behaviour (command)
- Ensure compliance with those environmental standards (control)
True or false: Policies and guidelines are not legally enforceable.
True
What are Statutes?
The primary tool available to government to command environmentally appropriate behaviour.
What is the role of Legislatures?
Establish general provisions governing environmental conduct.
What is the role of Cabinets?
Can establish more specific rules and standards if granted this power by the legislatures.
What are Administrative Orders?
Orders made by government officials or authorized employees that impose specific requirements on individuals or companies.
Who is the Director?
An appointee under the Ontario Environmental Protection Act who may issue administrative order in certain circumstances.
What is ECA?
Environmental Compliance Approval
What are two ways of controlling the amount of a particular contaminant from entering the environment?
- Setting a performance standard; or
- Construction Standard
What is the Precautionary Principle?
The proposition that caution should be paramount when an activity raises threats of harm to health or the environment.
What is a Performance Standard?
A pollution limit imposed on a polluter, where the rule-maker is unconcerned with how the result is achieved.
What is a Construction Standard?
A government-approved pollution control system that is to be used for a particular activity or in a specific situation.
What are the five-steps in setting Environmental Quality-based Standards?
- Identify objectives for pollution control.
- Form criteria to meet the objectives
- Form specific ambient quality standards
- Translate said standards into specific emissions limits
- Develop monitoring programs
What is the Health Risk Assessment Standard?
A quality-based standard that involves linking the standard under consideration to the health risks posed.
What two scientific relationships does the Health Risk Assessment examine?
- Relationship between place of a contaminant and level of exposure to a person.
- Relationship between the release of a contaminant into and potential health-effects resulting.
What type of standard setting approach avoids the problems found in environmental quality-based standards?
Technology-based Standards
What is an advantage of the Technology-based Standards?
It removes many of the controversial political and scientific judgements that need to e made when establishing standards.
What are two problems with Technology-based Standards?
- Standards are developed without considering environmental needs.
- It entrenches prescribed technology and discourages innovation.
What is the Point of Impingement?
The point at which a pollutant contacts the airspace, ground, or a building at or beyond the property boundary of the source of a pollutant.
What do Information Standards involve?
Imposing legal requirements on industries to disclose information about their environmental practices.
What does the Pollution Prevention approach consider?
An approach emphasizing prevention rather than control of pollution.
What three practices are included in Pollution prevention?
- Changes to manufacturing processes
- Production reformulation
- Chemical Substitution
What is the CCME?
Canadian Council of Ministers of the Environment
What are the four key types of ‘Control Tools’ in environmental legislation?
- Incentives and Financial Assistance
- Licenses and Approvals
- Administrative Orders
- Prosecutions
Who is involved in setting Incentives and Financial Assistance?
- Environmental Abatement Officers
- Research and Funding Agencies
Who is involved in setting Licenses and Approvals?
- Government Environmental Officials
- Hearings Tribunals
Who is involved in setting Administrative Orders?
- Enforcement Officers
- Government Environmental Officials
- Hearing Tribunals
Who is involved in setting Prosecutions?
- Enforcement Officers
- Prosecutors
- Criminal Courts
Environmental Approvals are both a _______________ tool and a ______________ tool.
standard-setting, compliance
What are Administrative Orders?
Directives issued by government officials to impose legal requirements.
What is a PO?
Provincial OfficerW
What does a PO do?
Carry out enforcement functions.
What are POO’s?
Provincial Officers’ Orders
What are two types of Environmental Orders?
- POO’s
- Director’s Orders
What are the four types of Director’s Orders under the EPA?
- Control Orders
- Stop Orders
- Remedial Orders
- Orders for Preventative Measures
What do the four Director’s Orders have in common?
They all start with investigation by an enforcement officer.
What are the two reasons why someone may be prosecuted?
- Specific Deterrence
- General Deterrence
What is a Standard of Proof?
The degree to which a party must convince a judge or jury that the allegations are true.
What is the Balance of Probabilities?
The standard of proof in a civil proceeding, whereby the plaintiff must convince the court that the allegations are more likely true than untrue.
What does “Beyond a Reasonable Doubt” mean?
The standard of proof in a criminal proceeding.
What is a Strict Liability Offences?
Offences in which proof that an accused performed the prohibited act is sufficient to sustain a conviction.
What are Criminal Liability Offences?
Serious offences under the Criminal Code
What is Actus Reus?
An element of an offence
What is Menus Rea?
An element of a criminal offence
What is Absolute Liability Offences?
Minor offences where the intention of the offender is not required element.
