Circumscribing Regulation or Reforming the Regulatory Process
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ABSTRACT In Canada, environmental regulation is circumscribed by several directives, framework documents and guidelines such as “The Cabinet Directive on Streamlining Regulation,” the “Canadian Cost-Benefit Analysis Guide,” and “Assessing, Selecting and Implementing Instruments for Government Action,” that instruct the ministries of Health and the Environment how to discharge their legal obligations to protect human health and the environment. The central agency that oversees regulation in the broad sense, the Treasury Board Secretariat, clearly favours any legal instrument other than legally-binding regulation, such as voluntary initiatives, economic instruments, and involving a variety of actors in “distributive governance” schemes. It will be argued in this paper that the considerations the Treasury Board requires the ministries to take into account in assessing and selecting governance instruments, such as cost-benefit analysis using discounting of future benefits, and an analysis of the degree to which various instruments constrain individual liberty, limit the ministries’ ability to enact effective environmental regulation. The argument will be made using the risk management plans for toxic chemicals published to date as part of the Chemicals Management Plan as an example. It will be shown further that the Canadian approach to regulation mirrors that of the United States under the Office of Information and Regulatory Affairs (OIRA) in the United States Office of Management and Budget, and that while that the REACH regime for chemicals management in the European Union may be superior in some respects, it suffers from many of the same constraints as the North American regulatory system. The paper ends with suggestions for reforming the regulatory process for environmental protection.