A perspective on key legal considerations for performance-based regulating

The performance-based approach to the regulation of nuclear power generation for civilian use is an approach that requires a certain outcome but provides the regulated entity with the flexibility to determine how it can achieve this outcome. Such an approach is currently being employed, for example, in Canada, France and the United Kingdom. While some have argued that 'significant work remains to be done before performance-based approaches can realize their full potential in the regulation of nuclear power plants', a limited number of analyses have been dedicated to the approach.3 The author was thus inspired to share Canadian expertise in this area, as well as a description of the approach developed in Canada in recent decades. The article examines how particular legal approaches may be affected when nuclear regulators choose a performance-based model, without drawing any conclusions on whether performance-based regulating is superior to the prescriptive approach employed in many countries. While the performance-based approach may be effective in Canada, each state is responsible for gauging the appropriateness of a particular approach within its jurisdiction. The article also examines the merits and particularities of performance-based regulation, as well as whether enforcement practices should differ under a performance-based regime as compared to a prescriptive one. These subjects appear to have attracted little attention from the academic legal community despite what appears to be an increase in interest in the performance-based approach to safety regulation. Enforcement is a critical the risks to national security, the health and safety of persons and the environment that are associated with the development, production and use of nuclear energy. Likewise, an objective of the Commission is to 'achieve conformity with measures of control and international obligations to which Canada has agreed'. The Commission is empowered, with the approval of Canada's Governor in Council (GIC), to make regulations 'generally as the Commission considers necessary for carrying out the purposes of this Act and to assist the Commission in attaining its objects'. While regulations require GIC approval, promulgating guidance and policies is an inherent power of the regulator. In a decision of the Federal Court of Appeal, a Canadian judge calls this promulgation 'communicating prospectively', writing, 'an administrative agency does not require an express grant of statutory authority in order to issue guidelines and policies to structure the exercise of its discretion or the interpretation of its enabling legislation'. The CNSC has made 13 regulations and approximately 80 guidance documents, most of which are organised into a regulatory document ('REGDOC') series. It is the regulatory approach taken at these latter two levels - regulations and guidance - on which the sections of this article focus