Blog: Canada Playing Regulatory Whack-a-Mole with Some of the Most Dangerous Chemicals on the Planet

Photo credit: Ali Mohamed for Californians for Pesticide Reform

Blog by
Joseph F. Castrilli, Counsel and Fe de Leon, Researcher Canadian Environmental Law Association

The burden of disease from exposure to industrial chemicals in the environment due to the doubling of the global chemicals market between 2017 and 2030 is expected to be high and vulnerable populations will be particularly at risk. This concern prompted the United Nations in 2019 to conclude that business as usual is not an option for governments if they are to protect public health and the environment. More recently, an international group of scientists concluded in a study released in January 2022 that the pace of industrial chemical production (a 50-fold increase in such production since 1950 that is expected to triple again by 2050) is outstripping the ability of governments to protect human health and the environment to such an extent that a cap on chemical production and release may be warranted similar to that for carbon emissions.

The international situation on industrial chemicals is mirrored in Canada where the federal government is playing regulatory whack-a-mole with some of the most dangerous chemicals on the planet and proposed government amendments to the country’s primary law for controlling the risks these substances pose to human health and the environment may perpetuate, not stop the problem. That is the overall conclusion of CELA’s analysis of national pollution data when compared to proposed government amendments to the Canadian Environmental Protection Act (CEPA) found in Bill S-5 now being considered in the Senate of Canada.

What Government Data Shows

The CELA review found that over the period 2006 to 2018, decreasing on-site emissions to air of cancer-causing agents that meet the definition for a toxic substance under CEPA, have been offset by the increasing deposit of these same dangerous substances to land. Moving a known or suspected carcinogen from one environmental pathway (air) to another (land) does not represent progress in protecting human health and the environment. It merely represents putting a different part of the environment and a different group of people at risk. It is not a solution to the problem of ever-expanding chemical production, and certainly not for potentially carcinogenic chemicals the federal government itself has branded “toxic.” For these a strategy of prevention and elimination from Canadian commerce is required, not a strategy of reaction and trying to cure the problem after the emissions have occurred.

The CELA review found for the 2006 to 2018 period that for substances declared toxic under CEPA that also are classified by the International Agency for Research on Cancer (IARC) as known or suspected carcinogens there was:

  • in Ontario, a 56 percent decrease in on-site air emissions, but a 48 percent increase in on-site disposal / land release of the same substances;
  • in Quebec, a 53 percent decrease in on-site air emissions, but a 587 percent increase in on-site disposal / land release of the same substances; and
  • in Alberta, a 17 percent increase in on-site air emissions, and a 62 percent increase in on-site disposal / land release of the same substances.

The picture in Canada is not much improved for even those chemicals, such as arsenic and its compounds, which were known to ancient Rome to be dangerous. The CELA review found that in Quebec, for arsenic and its compounds, known cancer-causing agents designated as toxic under CEPA, on-site air emissions increased 49 percent during the period 2006 to 2018. However, on-site disposal / land release of arsenic and its compounds increased an astounding 11,000 percent during the same period.

Finally, when comparing Ontario to certain states in the United States with a similar economic, manufacturing, and industrial base the picture is similarly disappointing. To illustrate this CELA compared on-site air emissions of “CEPA-toxic” known or suspected cancer-causing agents in one such jurisdiction, New Jersey, to those for Ontario for the 2006 to 2018 period. New Jersey was chosen because the federal government tries to “benchmark itself against” it because of the state’s “extremely effective toxics” program. The results, however, showed that Ontario’s on-site air emissions were more than 28 times greater than those of New Jersey. Corrected for a per capita comparison, Ontario’s on-site air emissions of such substances were still 14 times greater than New Jersey’s; while the province’s per capita on-site disposal / land releases of the same substances were over a 1000 times greater than those of New Jersey.

CELA acknowledges that on-site air emissions of such substances have been reduced in Ontario over this 13-year period and that CEPA is a substantial contributing factor. However, Ontario’s on-site air emissions of CEPA-toxic cancer-causing agents were still on the order of 1 million kilograms per year during this period, and its on-site disposal / land releases on the order of tens of millions of kilograms per year during this 13-year period. As a result, the federal government cannot avoid responsibility for the continuing magnitude of emissions of substances it has itself designated toxic under CEPA.

Is Bill S-5 Informed by the Government’s Pollution Data?

Overall, this pollution data should have caused the federal government to propose in Bill S-5 robust amendments to CEPA, a statute that has not been significantly amended in over two decades. Ever-expanding chemical production – and mainly shifting releases of toxic substances from one environmental pathway to another – is not what the House Standing Environment Committee expected when they submitted their first-ever report to Parliament in 1995 on reform of CEPA. The Committee’s report stated that: “…we reiterate the need to emphasize preventive measures and to phase out pollution control methods. Pollution control strategies should be considered only as interim measures until pollution-prevention strategies are put in place.” Well, it is almost 30-years later and it appears that, with some exceptions, “business as usual” is the option of choice in the Bill S-5 amendments. The data, however, make it plain that business as usual should not be the option of choice, particularly if we are to protect vulnerable populations – children, women, Indigenous peoples, and people of colour – who are disproportionately at risk from exposure to CEPA-toxic cancer-causing agents.

Unfortunately, Bill S-5 opts for largely housekeeping amendments that: (1) ignore long-standing unmet needs; (2) pursue only half-measures; or (3) make the situation worse. Examples of the first type of problem in Bill S-5 include:

  • actual problems with the existing statute are left largely unaddressed by Bill S-5, particularly Parts 4 and 5 of the Act pertaining to pollution prevention and control of toxic substances, including;
  • failing to make pollution prevention plans mandatory, instead of discretionary, for any toxic substance listed in Schedule 1 (this failure has resulted in only one-sixth of all substances in the Schedule in the last 20 years having a plan, a rate that, if continued, will mean that all existing toxic substances in Schedule 1 will not have a plan before the year 2100);
  • treating the pollution prevention plan requirement in the Act, meant to control the creation and use of toxic substances, as predominantly a pollution abatement measure (i.e., where only emissions are controlled) has allowed such substances to stay in Canadian commerce and the environment; and
  • failing to make substitution of safer alternatives to toxic substances a central focus of amendments to the Act placing Canadians and the environment at risk, and Canada at a disadvantage relative to other countries that have done so.

Examples of the second type of problem in Bill S-5 include:

  • proposing to recognize a right to a healthy environment but failing to provide an enforceable remedy that would make the right effective (the existing remedy provision in CEPA has been unused for 23 years because of a wide variety of procedural barriers to its use).

Examples of the third type of problem in Bill S-5 include:

  • proposed amendments in Bill S-5 relating to CEPA’s Schedule 1 List of Toxic Substances that seek to fix something that is not currently broken in the Act but if enacted could create legal and constitutional problems that would invite unnecessary litigation (i.e., undermining the constitutional law foundation for the Act, which is based on the criminal law power, by no longer identifying the Schedule as a list of toxic substances, and dividing the list of 150 substances in the Schedule into two classes with much the larger class, consisting of almost 90 percent of the entire list of substances in Schedule 1, being made subject to potentially less stringent measures).

In short, Bill S-5 does not appear to reflect the warnings contained in government pollution data.

What Should Be Done?
The Hon. Steven Guilbeault, Minister of Environment and Climate Change, at the time of the introduction of Bill S-5 in the Senate on February 9, 2022, stated that: “All Canadians expect and deserve a healthy environment”. In his appearance before the Senate Committee on Energy, Environment and Natural Resources, on March 24, 2022, Minister Guilbeault described Bill S-5 as designed to strengthen the management of chemicals in Canada and urged all members of the Senate to “lean in on the first major update to [CEPA] in 20 years”. CELA believes the Minister can achieve his goals by amending Bill S-5 along the lines suggested by our March 2022 proposed amendments to Bill S-5. They include:

(1) an enforceable remedy for the right to a healthy environment proposed by Bill S-5, which otherwise lacks a remedy;

(2) turning the discretionary Ministerial power to require companies to adopt pollution prevention plans, which has only been exercised by Ministers for one-sixth of the 150 toxic substances covered by CEPA, 1999 over the last two decades, into a mandatory obligation to do so that would result in coverage of all Schedule 1 toxic substances in the next few years and also enshrine the examination of safer alternatives to such substances as a central pillar of federal environmental law;

(3) imposing mandatory testing obligations on industry where available information is lacking to help determine whether a substance is toxic, or capable of becoming toxic, in the context of such issues as endocrine disrupting substances, cumulative effects, and impacts on vulnerable populations;

(4) establishing authority for enforceable ambient air quality standards so as to address nationally problematic substances like lead, an approach recommended by the 2017 report of the House Standing Environment Committee in its examination of CEPA; and

(5) retaining but improving existing authority in CEPA that Bill S-5 would remove, muddle, or obscure on such issues as:

  • virtual elimination of toxic substances;
  • geographic targeting of regulatory authority; and
  • identifying substances in Schedule 1 as “toxic”.

Although CEPA is required to be examined by Parliament every 5 years with a view to its timely reform, in practice the statute appears to be amended no more frequently than once every two decades. Because new and emerging problems can accumulate over such a long timeframe, it is imperative for Parliament to make the most of those few times when CEPA comes before it for amendment. This is one of those times.