Published In

Osgoode Hall Law Journal

Document Type

Article

Publication Date

2008

Subjects

environmental standards; smart regulation

Abstract

Ontario recently introduced environmental penalties (EPs), the environmental equivalent of speeding tickets. EPs are widely understood as part of a move toward "smarter" environmental regulation. As part of the EPs regime, facilities with an environmental management system aligned with ISO 14001 or Responsible Care qualify for reduced penalties. The Ontario government’s attempt to incorporate voluntary standards - such as ISO 14001 - into its EPs regulations was not very smart, however, because it failed to observe six principles that, in our view, should guide the incorporation of standards into smart regulation. First, do not reinvent the wheel. If an existing standard fulfills the objectives of a proposed regulation, and was developed by a recognized standards body through a multi-stakeholder consensus process, it would be "smart" to incorporate the standard into the regulatory scheme as far as possible and appropriate, rather than drafting a new standard from scratch. Second, avoid unexplained discrepancies between the regulation and the standard. Third, if an existing, widely accepted standard does not, on its own, meet all of the public policy goals of the proposed regulation, indicate clearly how the standard is deficient and what more is required to meet public policy objectives. Fourth, consult relevant standardization bodies when developing regulations; they are experts on the topic. Fifth, participate in standardization processes in order to keep abreast of developments and influence the content of the standards. Finally, where both regulators and standards development bodies have failed to take into account the special characteristics and challenges of small businesses, they must now address these important factors. A critical period for small business and sustainability is about to unfold.

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