Anticipating a renewed Canadian Environmental Protection Act: Opportunities and Limitations of Discretionary Authority Amendments in Bill C-28

Blog posted by Peter Hillson, Law intern, Canadian Environmental Law Association

Introduced at First Reading on April 13, 2021, Bill C-28, (An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act), would make a number of consequential amendments to the Canadian Environmental Protection Act [CEPA]. With the completion of the federal election, many interested in CEPA look forward to the day Parliament will re-introduce Bill C-28 or any successor bill. While not a perfect piece of legislation, (as outlined in a CELA blog at the time of its release), as the first consequential proposed amendment to CEPA in quite some time, it is worth thinking about what positive measures might be lost if the changes Bill C-28 proposes are forgotten in the aftermath of the federal election.

This blog will look at amendments in Bill C-28 that provide the Minister of the Environment and Climate Change and the Minister of Health with expanded discretionary authority to collect, generate, and consider information on a broader array of factors, (not previously explicitly contemplated under CEPA),when identifying, investigating, and regulating toxic substances. These factors include vulnerable populations, endocrine disrupting chemicals, safe substitutions, and cumulative effects. It is imperative that decisions about designation and regulation of toxic substances take these factors into account, but new discretionary authorities might not be enough to fully safeguard human health and the environment.

In particular, these proposed amendments are flawed in their vague language and uncertain application. When the Minister may consider vulnerable populations or may collect information on cumulative effects , it is far from certain what role vulnerable populations will actually have in a final decision or whether the Ministers will exercise their authority to collect information on cumulative effects.

Despite these shortcoming, these amendments might present a potential toe-hold for environmental advocates to expand CEPA’s commitment to vulnerable populations and marginalized communities. This could take the shape of mandatory language that creates duties, (rather than discretion), and a clear mechanism for citizens to compel action when the government does not fully exercise its authority to protect human health and the environment through the collection, generation, and consideration of the factors Bill C-28 recognizes. To contemplate these potentialities, we need to know exactly what Bill C-28 says at present. I will now turn to an analysis of the language employed in Bill C-28 regarding vulnerable populations, endocrine disrupting chemicals, safe substitutions, and cumulative effects.

Vulnerable Populations
Bill C-28 defines a vulnerable population as “a group of individuals within the Canadian population who, due to greater susceptibility or greater exposure, may be at an increased risk of experiencing adverse health effects from exposure to substances” and introduces a number of permissive measures in relation to these populations. They include:

  • Amendments to Section 45, which would permit the Minister of Health to conduct research and studies relating to the role of substances in illnesses or in health problems of vulnerable populations.
  • Amendments to Section 68, which add the power, but not the duty, for the Minister to collect or generate data concerning whether there is a vulnerable population in relation to a substance when considering whether it is toxic and/or how to control it. This is an important power for the Minister to have, but the amendment uses discretionary language that does not mandate generation or collection of this information.
  • Amendments to Section 76.1, which would require the government to consider available information on any vulnerable population in relation to a substance when conducting and interpreting an assessment or review of a substance under a ‘weight of evidence’ approach. This is an important requirement, but does not address the fact that relevant information is not often available, and CEPA does not currently include a mechanism to compel disclosure or production of this information by industry.

Endocrine Disrupting Chemicals
Bill C-28 also touches upon Endocrine Disrupting Chemicals. Endocrine disruption has not previously been recognized under CEPA as a factor in toxic designation, potentially allowing many substances to escape toxic designation and/or regulatory management, despite their impacts on reproductive health and hormonal regulation. Bill C-28 permits greater consideration of EDCs via:

  • Amendments to section 68, which introduce the ability, but not the duty, for the minister to collect and generate data and conduct investigations regarding the ability of a substance to disrupt the endocrine system of an organisms as part of an assessment of whether a substance is toxic or capable of becoming toxic. This is discretionary language and elides the fact that information on these substances may be limited. Further, this amendment is also lacking in that it doesn’t actually require determination of whether a substance is an EDC. It gives the option to generate and collect data related to endocrine disruption, but does not stipulate what the consequence of information regarding endocrine disruption might be on a finding of toxicity.

Safe Substitution
Prioritizing safe substitution of toxic substances potentially has a central role to play in managing impacts on vulnerable populations without depriving those same populations of products and services they rely on. It is vital that CEPA provide mechanisms for the replacement of dangerous substances with safer alternatives. Bill C-28 makes reference to safe substitution in a way that is encouraging, but could be strengthened. In particular, it does this through:

  • Amendments to section 68, which provide that when determining whether a substance is toxic, the Minister may “collect or generate data and conduct investigations respecting any matter in relation to a substance, including… the existence, development and use of safer or more sustainable alternatives to the substance or product (emphasis added).” This clarifies that alternatives considered should be ‘safer or more sustainable’, but is vague and couched in a few layers of discretion.
  • Amendments to Section 90, which direct that, (when developing a regulation in reference to prohibition of substances in the newly created Part 1 of Schedule 1), the Minister may consider alternatives to a substance (among other factors). Section 90 (1.2) states that the Minister may consider any factors they consider appropriate when developing regulation of Part 1, Schedule 1 substances, so, without further clarification, it is slightly unclear what role the existence of alternatives or safe substitutions would or should play in such a determination. However, it is encouraging that the existence of safe substitutions might weigh in favour of prohibitionary regulation of toxic substances.

Cumulative Effects
Assessing and making decisions in response to the cumulative effects of multiple substances over time is a vital part of protecting those communities, (often comprised of vulnerable groups and populations), who are most exposed to multiple sources of pollution. Bill C-28 takes some steps to permit greater consideration of cumulative effects, including:

  • Amendments to section 68, which permit the Minister to collect or generate data and conduct investigations respecting whether a substance under assessment has the potential to cause cumulative effects. This amendment runs into the same problem mentioned in relation to other topics, namely that there is often a lack of evidence or existing data on cumulative effects. Especially in the case of cumulative effects, the specific risks and hazards can depend on the type and quantity of existing pollution sources, specific interactions between specific substances, and the variability of impacts on different populations.
  • Amendments to section 76.1, which requires the Minister to consider available information on cumulative effects when conducting and interpreting the results of an assessment or review. This is a good addition, but does not specify how the Minister is required to consider cumulative effects and, as discussed above, it is somewhat likely that available information regarding cumulative effects for a particular substance are limited.

Next Steps
Having looked at the discretionary authority measures introduced by Bill C-28, we can see how, in their current form, they fail to create concrete and reliable duties that would translate into more effective protection of human health and the environment. The use of discretionary and non-mandatory language is a particular hinderance here, as it might allow the federal government to claim credit for recognizing these important factors without materially changing how CEPA functions. We can also see how the lack of opportunities to compel action, (whether it be information collection and generation or proper consideration of that information), leaves concerned citizens without an accessible mechanism to make sure the government lives up to the duties it has assigned itself.

As discussed throughout my analyses of each of the proposed measures, the measures in Bill C-28 could be greatly improved through clarification of the role these factors are meant to play in assessments, more mandatory language about that role , and greater powers for citizens to compel generation, consideration, and disclosure of information about these factors. Recognition is a first, but not adequate, step to providing real environmental justice under CEPA.

Right now, it’s up to environmental advocates to push for those next steps with the toe-hold C-28 provides. Whether it be a part of a reintroduced Bill C-28 or entirely new legislation, it is vital that explicit consideration of vulnerable populations, EDCs, safe substitution, and cumulative effects is given priority. An increased focus on mandatory language and a mechanism for citizens to compel action when necessary are vital steps towards constructing a more effective and more protective CEPA.