Written by Julie Mutis, Communications Intern
Over the past 50 years, CELA has been protecting the environment through a variety of means including litigating cases, initiating and participating in law reform, and public legal education. This work reduces environmental hazards that are closely tied to the health of Canadians.
A key area of focus is ensuring high standards for air quality in order to protect citizens from coming into contact with air pollution. Through all of this work there is a focus on increasing protections and representation for low-income communities. A variety of systemic conditions including economic and legal constraints, location of industrial pollution sources and lack of access to knowledge prevent those living on low income from attaining environmental justice.
The following projects are representative of the work that CELA is doing to recognize and address nationwide environmental hazards with a focus on protecting vulnerable populations.
Cumulative Impact Assessment
Ontario is home to densely packed industrial centres, many of which border residential areas. These ‘hot spots’ are associated with decreased air quality and health risks due to the close proximity of polluters. Despite these hazards, Ontario lags behind other provinces when it comes to recognizing and regulating the cumulative impact of emissions.
Before construction is approved by the government, companies are required to conduct impact simulations to model how their emissions will impact the area. According to CELA lawyer Ramani Nadarajah, these simulations were done under the assumption that the existing air in an area is pristine. This practice failed to produce an accurate picture of air quality and placed people at risk for a variety of adverse health outcomes including respiratory illness, cancers and immune and nervous system complications.
“There is certainly a correlation between the location of these densely industrialized urban hotspots and marginalized, low-income communities,” said Nadarajah. This disparity in environmental health can be linked to the fact that low income areas may have fewer resources to advocate against the construction of multiple industrial facilities.
In 2018 after years of advocacy and research by CELA and other organizations, Ontario released a policy on cumulative impact assessment. While it was a “step in the right direction,” Nadarajah says the finished product was disappointing. The regulation only applies to two industrial areas in Ontario and only covers two chemicals. The policy applies to air emissions of benzene and benzo[a]pyrene in the Hamilton/Burlington area and benzene in the Sarnia/Corunna area. Nadarajah says that CELA is continuing to advocate for better air protections using other provinces as examples of effective policy and drawing on past case work to argue for more stringent and protective laws.
Canadian Environmental Protection Act Updates
While the provinces have a major responsibility for addressing outdoor air quality under provincial environmental laws that establish air quality regulations, standards, and issue approvals, the federal government also has a key role to play under the Canadian Environmental Protection Act (CEPA). Some regulations promulgated under CEPA address the release of certain toxic substances to the environment, including the air environment. This authority has had, to date, mixed success in controlling a narrow range of substances deemed toxic under the Act. However, the federal role in improving national ambient air quality as well as preventing and controlling air pollution “could be substantially enhanced”, says CELA lawyer, Joe Castrilli.
In addition to promulgating regulations having the force of law, CEPA also authorizes the federal government to produce objectives, guidelines, and codes of practice, which do not have the force of law in and of themselves, unless adopted under provincial law. Under this federal authority, Canada has identified and set, for example, certain non-enforceable standards for ambient air quality contaminants, such as particulate matter, a source of respiratory and cardiovascular disease to many Canadians each year. Total particulate matter regularly appears, for example, in Ontario’s annual top five substances created by industrial emissions and reported on under the province’s Toxics Reduction Act (TRA). But provincial willingness to act on this information is uneven; evidenced, for example, by Ontario’s recent decision to repeal the TRA itself by the end of 2021.
So despite provincial authority to act, there is a void, and much remains to be done in the absence of an overarching national strategy for addressing certain key toxic air contaminants. In an attempt to fill this void, in 2018, CELA submitted to the federal government extensive amendments to CEPA. They include the establishment of enforceable national ambient air quality standards for a small number of substances, such as particulate matter and lead, that could prove “more impactful than the current approach”, said Castrilli. The proposed amendments would also recognize the right of Canadians to: (1) petition the federal government to add substances to the federal inventory of substances released to the environment (the National Pollutant Release Inventory – NPRI); and (2) an enforceable right to a healthy environment and provide them with the legal tools to achieve that objective.
With the October 2019 federal election now in the rear-view mirror, the Prime Minister in December 2019 issued mandate letters to the federal ministers of environment and health directing them to move ahead with strengthening CEPA. Castrilli says that perhaps that mandate will include amendments of the type proposed by CELA
A key focus of CELA’s mandate is to ensure access to environmental justice for all Canadians. This work comes in many forms including facilitating law reform, litigating cases and conducting public legal education. An important theme in all of this work is the collection of accurate environmental information and equal access to results.
CELA Executive Director Theresa McClenaghan says that lack of knowledge is a barrier to facilitating safe and healthy communities. For this reason, CELA worked with other environmental and legal groups to develop what would eventually become the Environmental Reporting and Disclosure Bylaw in Toronto.
While federal and provincial initiatives track the emissions of large polluters, small and medium emitters such as laundromats were not required to share any information about what hazardous material was being released. “Communities have a right to know what they’re being exposed to and a right to participate in the decisions that allow those exposures,” said McClenaghan.
As a result of the bylaw, citizens in Toronto have access to an interactive map that allows them to see the emitters in their area. This gives residents important information about their health and provides incentives for companies to reduce emissions.
“The whole idea of us working on this bylaw for Toronto was that it should help set the precedent for other municipalities to adopt something similar,” said McClenaghan. CELA is now starting to support work by law students at the University of Windsor hoping to develop a similar program for their city.