Bill S-5 Blues – Parliamentary Consideration of Toxics Law Amendments –
A Chronicle of the Debacle in the Senate
By Joseph F. Castrilli, CELA Counsel
Almost half-way through Parliament’s consideration of the first major amendments to Canada’s industrial chemicals law in over two decades, and the results have been hugely disappointing for future protection of human health and the environment from toxic substances in this country. The amendments, contained in Bill S-5, respecting the Canadian Environmental Protection Act, 1999 (CEPA) and other federal laws, received Third Reading in the Senate of Canada on June 22, 2022.
Given the mainly housekeeping nature of Bill S-5 that the federal government introduced in the Senate in February 2022, it is perhaps not surprising that the Standing Senate Committee on Energy, the Environment and Natural Resources considering the bill would feel constrained in proposing changes. It would be an uphill battle substantively, and procedurally given Senate rules on the scope of permissible amendments to bills, for the Committee to do in roughly two months the work the federal government did not do in two decades, in preparing amendments to CEPA to bring federal control of industrial chemicals into the 21st century.
The Need for Robust Reform in Control of Toxic Substances
The evidence for the necessity of robust reform was before the federal ministers of environment and health. What was some of that evidence?
- A sustained, more than decade-long, trend showing decreases in on-site emissions to air of cancer-causing agents identified in Schedule 1 of CEPA’s list of toxic substances being more than off-set by increases in the deposit of such chemicals to on-site disposal and land; i.e., simply a shift in the environmental pathway for these chemicals from air to land, not a reduction in their creation and use;
- A corresponding under-used pollution prevention authority where, over the last 20 years, only one-sixth of the 150 toxics listed in Schedule 1 of CEPA have been subject to the Act’s pollution prevention plan requirements respecting reduction in the creation and use of such substances, a trend that, if continued, would result in all existing substances under the Schedule not having a plan until the year 2100;
- Where pollution prevention plans have been adopted, pollution abatement measures have been used frequently as substitutes for true pollution prevention, resulting in the continued release of toxics into the environment not the reduction in their creation or use, a problem long feared by Parliamentary committees;
- A largely non-existent or infrequently applied authority under the Act to seek safer, or non-chemical, alternatives to toxics instead of making alternatives analysis a central pillar of the Act;
- An unbroken 20-year record of non-use by members of the public of the environmental enforcement provisions of CEPA due to procedural barriers embedded in the statute, despite repeated warnings by Parliamentary committees of the need for reform;
- A continuing failure to require testing by industry when available information is not sufficient to determine whether substances are toxic, or capable of becoming toxic, despite clear, though discretionary, ministerial authority to do so; and
- The continued absence of legally binding national ambient air quality standards for certain Schedule 1 toxic substances (e.g., lead) that puts Canada behind the United States and every other industrialized country in the world and is contrary to the 2017 House Standing Environment Committee report to Parliament on amending CEPA.
None of these problems were corrected by Bill S-5, though some were discussed by the Committee and amendments proposed in a few instances but not passed.
Some Government Amendments and Their Potential Impact
What the government opted for when it introduced amendments to CEPA through Bill S-5 for First Reading in February were:
- Half-measures: putting an ambiguous right to a healthy environment in the preamble and elsewhere in Bill S-5 and leaving unchanged the above-referred to un-usable environmental enforcement provisions of CEPA;
- Counter-intuitive thinking: dividing Schedule 1 substances into two parts and making the substances in the far larger group – approximately 40 of them cancer-causing agents – potentially subject to less stringent controls and not subject to examination of alternatives; and
- Down-right head-scratching decision-making: removing identification of the substances in Schedule 1 as a list of toxic substances, a move that could invite litigation by industry challenging existing substances in, and future substances proposed for, the Schedule and jeopardize the legal underpinning of CEPA as valid federal legislation under the criminal law power of the Constitution.
These and other amendments to CEPA were disappointing. However, what was perhaps both disappointing and mystifying were the justifications the government advanced in committee deliberations against some proposed amendments to Bill S-5. Reference to the “government” in this context includes the Senate sponsor of Bill S-5, departmental officials advising the Committee, or both.
Government Justifications for Opposing Some Senate Amendments
Insisting the Precautionary Principle Definition Requires Reference to “Cost”
For example, when some Senators proposed modification of the definition of the precautionary principle currently in CEPA by removing the reference to “cost” from the phrase “cost-effective”, the government response was that “cost-effective” is always part of the precautionary principle definition in domestic legislation and that to remove it would cause uncertainty in interpreting the principle.
However, there are many formulations of the precautionary principle that do not include reference to “cost” as part of the definition. A review of federal legislation such as the Oceans Act, or the Canada National Marine Conservation Areas Act, or provincial legislation like the Nova Scotia Environment Act, or the Ontario Water Resources Act, makes it clear that the government justification advanced is demonstrably not true. Cost is not included in the precautionary principle definition in any of these statutes. Fortunately, the Committee did not accept the government’s argument.
Not Applying the Right to a Healthy Environment to Future Generations
Unfortunately, there were other instances where government justifications advanced against Committee proposed amendments were successful. Consider the attempt by one Senator to add the phrase “and of future generations” to the proposed right to a healthy environment provision in Bill S-5, so that the right set out in the provision would apply to present and future generations. The government response was that such an amendment would create a right to a healthy environment in future generations whereas Bill S-5 was designed to limit itself to the rights of currently living individual Canadians.
The amendment was withdrawn in this case but consider that one of the purposes of CEPA, stated right at the beginning of the statute, includes: “pollution prevention and the protection of the environment and human health in order to contribute to sustainable development”. CEPA goes on to define “sustainable development” in section 3 of the Act as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. So, it is clear that CEPA already seeks to protect future generations. Accordingly, including a right to a healthy environment provision in Bill S-5 that makes protection of future generations enforceable by individuals, is hardly inconsistent with CEPA.
Not Identifying Schedule 1 as a List of Toxic Substances
The government’s justification for using Bill S-5 to remove the “List of Toxic Substances” title from Schedule 1 of CEPA, where it has been for over two decades, was that although the legal basis in CEPA for including a substance in the schedule is that it is “toxic,” that term, in public parlance, does not apply to many of the substances on the schedule, which creates significant challenges for users of some of those substances.
Wow! It is hard to imagine a better opening for fueling industry challenges to substances on Schedule 1 than that rationale. It is a rationale, however, that was rejected by the 2007 House Standing Environment Committee when it heard the same arguments coming from industry. The 2007 House Committee concluded the following:
“The constitutional authority for CEPA was narrowly upheld by the Supreme Court in the [Hydro-Quebec] case as a valid exercise of the federal criminal law power. The removal of the word “toxic” would almost certainly invite litigation and, though unlikely, could tip the balance of the court on the issue of constitutionality” (Standing Committee on Environment and Sustainable Development, The Canadian Environmental Protection Act, 1999 – Five-Year Review: Closing the Gaps, 1st Sess. 39th Parl. (April 2007) at 46).
Unlikely? In May 2021, a month after Bill S-5’s identical predecessor (Bill C-28) was tabled in the House of Commons before dying when the last federal election was called, an industry coalition brought an application for judicial review in the Federal Court of Canada making a claim of unconstitutionality with respect to the federal government’s designation of “plastic manufactured items” in Schedule 1 of CEPA. In the circumstances, legislative drafting should always try to avoid playing with constitutional fire.
Although an amendment returning the phrase “List of Toxic Substances” to the title of Schedule 1 was initially carried by the Committee, it did not survive final clause-by-clause review.
Preferring to Keep Pollution Prevention Planning Discretionary
Despite agreeing that pollution prevention is the core approach in CEPA, the government opposed Senate Committee amendments that would have made it mandatory for industries to prepare and implement pollution prevention plans for every toxic substance in Schedule 1 of CEPA for which they are responsible. The justification given by the government for opposing a mandatory approach and, instead, preferring to maintain a discretionary regime, included: (1) not every user creates a risk; (2) other measures can be applied, such as regulations, guidelines, and agreements; and (3) the government only requires that pollution prevention plans are prepared when it is confident companies will actually take the steps needed.
The government’s response is illustrative of why we’re not controlling such substances effectively in Canada. The 1995 House Standing Environment Committee viewed pollution prevention as key to the success of CEPA. That committee did not view pollution prevention as essentially a voluntary exercise dependent on the whim or the wishes of the regulated industry as to whether it is prepared to take the necessary steps to stem the creation and use of such substances. The trend in the data of decreases in on-site air emissions being more than offset by increases in on-site disposal and land releases of Schedule 1 cancer-causing agents, and the few Schedule 1 substances that have ever had a pollution prevention plan (25 out of 150 in over 20 years), constitutes a zero-sum game in which the environment and human health are the losers. The government’s eventual success in deliberations before the Committee in opposing mandatory plan preparation amendments stands as perhaps the single most discouraging result of clause-by-clause review of Bill S-5.
Senate Committee Observations on Amendments Not Made
Despite the lack of material changes to Bill S-5 during clause-by-clause review respecting toxic substances, the Committee did issue a brief (five paragraph) observations report on amendments not made on certain issues. The observations report is unusual in that it is a clear acknowledgement of unfinished business and effectively a message to the House of Commons to pursue these, and perhaps other, amendments to Bill S-5 when it lands in that “other place”. This, of course, begs the question of why these matters were not the subject of amendments before the Committee (e.g., lack of voting support, outside the scope of what Bill S-5 had opened up in CEPA and, therefore, contrary to Senate procedural rules to address, other reasons)? The observations report does not explain why these matters were not the subject of amendments despite the nature of the observations in the report about deficiencies in Bill S-5. Nonetheless, the observations in the report speak for themselves about some unfinished business regarding Bill S-5 as noted below:
“4. This committee would like to state their concern that the right to a healthy environment cannot be protected unless it is made truly enforceable. This enforceability would come by removing the barriers that exist to the current remedy authority within Section 22 of CEPA, entitled “Environmental Protection Action.” There is concern that Section 22 of CEPA contains too many procedural barriers and technical requirements that must be met to be of practical use. As Bill S-5 does not propose the removal or re-evaluation of these barriers, this Committee is concerned that the right to a healthy environment may remain unenforceable.
- This committee wishes to convey their concern surrounding industry data collection where information gaps exist on the toxicity of substances they use or emit. Bill S-5 authorizes collection of data on whether a substance is an endocrine disruptor. Bill S-5 also authorizes the Minister to consider available information on vulnerable populations and the cumulative effects of a potential toxic substance. However, in none of these cases does Bill S-5 direct the Minister to require testing by industry when data gaps exist on whether a substance is toxic or is capable of becoming toxic. In such instances, this committee believes that testing should be done by industry where and when available information on substance toxicity is unavailable or inconclusive.”
CELA could not have said it better.
With the completion of Third Reading in the Senate, Bill S-5 now heads to the House of Commons where consideration of amendments to CEPA will resume probably in the Fall 2022. Perhaps the House will provide the sober second thought and long overdue amendments needed to Bill S-5, or its successor, that the government has managed to avoid to this point.