Blog: CELA Proposes Amendments to Fix Toxic Substances Law

Blog post by Joseph F Castrilli, CELA Counsel

CELA urges the Government of Canada to adopt amendments CELA drafted to strengthen Bill S-5, the first major bill in Parliament in over two decades that addresses the Canadian Environmental Protection Act, 1999, Canada’s key law controlling toxic substances. The amendments CELA is proposing follow lengthy submissions it provided to the federal environment and health ministers last month, which cataloged major problems with the government’s bill.

Among the CELA proposed amendments to Bill S-5 include:

• An enforceable remedy for the right to a healthy environment proposed by Bill S-5, which otherwise lacks a remedy;
• Turning the discretionary Ministerial power to require companies to adopt pollution prevention plans, which has only been exercised by the Minister for one-sixth of the 150 toxic substances covered by CEPA over the last two decades, into a mandatory obligation to do so that would result in coverage of all such substances in the next few years and also enshrine the examination of alternatives with respect to such substances as a central pillar of federal environmental law;
• 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;
• Establishing authority for enforceable ambient air quality standards to address nationally problematic substances like lead; and
• Retaining but improving existing authority in CEPA that Bill S-5 would remove on such issues as:
  • virtual elimination of toxic substances;
  • geographic targeting of regulatory authority; and
  • identifying substances as “toxic”.

CELA’s amendments on this last issue are particularly important. Bill S-5 would: (1) eliminate the word “toxic” from CEPA’s current Schedule 1 List of Toxic Substances; and (2) divide the Schedule into two parts and result in almost 90 percent of the substances being potentially subject to less stringent controls. In CELA’s view these proposed changes by Bill S-5 risk undermining the foundation of the statute as valid federal legislation under the criminal law power of the Constitution as established by the Supreme Court of Canada in the 1997 Hydro-Quebec case. While the chemical industry has applauded the decision to change the title of Schedule 1 to remove the reference to toxic substances, the federal government has provided no compelling reason for its proposed changes to Schedule 1. It is also contrary to the advice the House Standing Committee on the Environment provided Parliament and the Government of Canada in 2007. At that time the House Committee stated in part:

“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”.

Bill S-5 goes even further than what the 2007 House Committee warned against doing because the Bill not only removes the word “toxic” from the title of Schedule 1 of CEPA but also creates two tiers of substances, one tier of which is subject to less stringent controls. This kind of change sends the wrong message to the public and the courts. It falls into the category of fixing what isn’t broken and may have the unintended consequence of making what was settled constitutional law up to now, uncertain going forward.

In CELA’s view, there are serious, but solvable, problems with CEPA that the government has not addressed in Bill S-5. The current name of Schedule 1 is not one of those problems but Bill S-5 could turn it into one. It’s time for the public to have its say on this – and other issues – regarding what our federal toxics law should look like and address over the next twenty years.
For more information about the Canadian Environmental Protection Act, see our law reform page here.