By Joseph F. Castrilli, Counsel, and Fe de Leon, Senior Researcher
Bill S-5 amendments to the Canadian Environmental Protection Act (CEPA), received Royal Assent in June 2023.
Since April 2021, CELA has produced numerous critiques in the form of submissions and proposed model amendments to these bills to government, written and oral testimony before both the Senate and House Standing committees examining Bill S-5, blogs, articles, media interviews, webinars, and other forms of communication on what was wrong with Bill C-28/Bill S-5 and what should be done to correct these problems.
Unfortunately, several of our recommendations were not adopted. However, the Minister has noted publicly that there will be further consideration of CEPA in the near future. Therefore we provide a short list of what still needs to be done and what should be corrected in the amendment of CEPA:
- Make pollution prevention mandatory for all chemicals Canada has designated as toxic under CEPA (over the last two decades only 16 percent of such substances have had pollution prevention plans; at that rate, all existing substances designated as toxic under the legislation will not have such plans until the 22nd century);
- Enshrine safer alternatives to toxics as a central pillar of CEPA (Bill S-5 limits alternatives analysis to only a small group of chemicals it views as posing the highest risk, which includes five substances that are known or suspected carcinogens but does not extend this approach to the much larger group of substances the government also views as toxic and which contain eight times as many carcinogens; while an 11th-hour amendment would authorize the Minister to require an alternative analysis for any toxic substance the Minister seeks to impose a pollution prevention plan upon, the infrequent designation of toxic substances as subject to pollution prevention planning as noted in point 1, above, makes this discretionary authority of limited value);
- Impose mandatory chemical testing obligations on the private sector where information is not available, such as with respect to impacts on vulnerable populations, to assist in determining whether a substance is toxic or capable of becoming toxic (a recommendation made by the Senate Energy and Environment Committee at the close of its 2022 review of Bill S-5);
- Retain certain measures Bill S-5 repeals (e.g., geographic authority for toxics regulation-making that provided an explicit basis for addressing such problems as toxic hot spots; authority to virtually eliminate certain toxic substances from commerce; and a single list of toxic substances to which all risk management measures are applicable rather than bifurcation of the list and watering down the risk management authority applicable to almost 90 percent of them and perhaps, in the process, undermining the constitutional basis for the law as being valid federal legislation under the criminal law power of the Constitution);
- Provide a clear right to, and effective remedy for, a healthy environment (the existing CEPA remedy provision has not been invoked once since the provision became law in 1999 due to numerous procedural obstacles embedded in the legislation documented by previous committees of Parliament; Bill S-5 did not correct this problem and without an effective remedy the newly recognized right in the bill may be unenforceable, a concern also expressed by the Senate committee in its report to the House in 2022);
- Authorize development of legally binding and enforceable national ambient air quality standards for selected toxic substances (e.g. lead) (lack of such standards puts Canada behind every industrialized country in the world and is contrary to the 2017 House committee report to Parliament on amending CEPA).
Perhaps, a future Parliament will find these proposals compelling enough to enact them.