Blog – Long Awaited Amendments to CEPA: The Good, The Bad, and the Ugly on Chemicals and Environmental Rights

Blog posted by Joseph F. Castrilli, CELA Counsel and Fe de Leon, MPH, Researcher and Paralegal, CELA

Canada has long needed a more robust federal law to address the dramatic expansion in the use of toxic substances that has developed in Canadian and international commerce in recent decades. The stakes are high.

In 2019, the United Nations Environment Programme (“UNEP”) released its latest global chemicals outlook report, which indicated that the 2002 goal of the UN World Summit on Sustainable Development, reiterated in 2006 and 2012, of achieving by 2020 the environmentally sound management of chemicals and wastes, will not be achieved. It undoubtedly was not. The UNEP report noted that trends data suggested the doubling of the global chemicals market between 2017 and 2030 will increase global chemical releases, exposures, concentrations and adverse health and environmental impacts unless the sound management of chemicals is achieved worldwide. The report adds: “Business as usual is, therefore, not an option”. The UNEP report also found that:

• Production processes continue to generate significant chemical releases to air, water and soil as well as large amounts of waste, including hazardous waste;
• Chemical pollutants are ubiquitous in the environment and humans;
• The burden of disease from chemicals is high, and vulnerable populations are particularly at risk; and
• Chemical pollution threatens biota and ecosystem functions.

It is within this global context that long-awaited amendments to Canada’s premier environmental law – the Canadian Environmental Protection Act, 1999 (CEPA) – should be considered. Amendments to CEPA were expected to transition the statute to a more robust regime that could provide solutions to problems respecting the impacts of toxic substances on human health and the environment that have been accumulating over two decades since the law was last amended. Indeed, it has already been five years since a Parliamentary Standing Committee last held hearings on possible CEPA amendments.

As of April 13, 2021, we now have a 40-page bill of proposed amendments to CEPA, introduced for First Reading in Parliament as Bill C-28. What we do not have are solutions.

Numerous problems were identified and numerous solutions proposed by the Standing Committee and by those appearing before the committee in 2016 and 2017. However, Bill C-28, with some exceptions, is vague, silent, or unhelpful on key issues of concern. Bill C-28 also purports to fix things that are not broken in the law and that now have the potential to become problems going forward – as a result of the amendments.

Among the issues identified by lawyers, scientists, policy analysts, and others in seeking material reform of the law, included:

• Control of endocrine disrupting substances;
• Establishment of enforceable national ambient air quality standards;
• Protection of vulnerable populations from toxic substances;
• Substitution of safer alternatives to toxic substances; and
• Civil enforcement of the Act by the public in the courts.

Yet, with some exceptions Bill C-28: (1) does not address these problems; (2) only scratches the surface of these problems; or (3) makes things worse. Five years, let alone twenty years, is a long time to wait for a bill that fails to address long unmet needs.

The following is a short list on the good, the bad, and the ugly of Bill C-28:

Bifurcating “Toxic Substances” in Schedule 1

• Section 58 of Bill C-28 proposes to divide the existing single list of approximately 150 toxic substances in Schedule 1 of the Act into two parts. Part 1 of the proposed revised schedule would list a few substances (19 at this time) that can be subject to prohibition and restriction. Part 2 of the proposed revised schedule would list approximately 130 substances that would only be subject to pollution prevention measures. The approach appears to be based on a federal government view, long supported by the chemical industry, that many of the substances on the current Schedule 1 are not “toxic” in the traditional sense, and therefore should not be stigmatized and subjected to the most rigorous of measures available under the Act. This view belies the fact that all of the substances on the existing Schedule 1 are there because they meet the very stringent test for being designated toxic established under s. 64 of the Act and more than a few of them merit being virtually eliminated from commerce. Instead, what the government eliminated in Bill C-28, was the existing CEPA provision (s. 65) authorizing virtual elimination of such toxic substances.
•  Moreover, Bill C-28, by bifurcating Schedule 1 not only gives credence to the industry view it also creates legal uncertainty that has the potential for undermining the constitutionality of the Act, which was based on the criminal law power as decided by the Supreme Court of Canada in its 1997 judgment in Hydro-Quebec. In that case, the court was prepared to countenance the Act’s approach to studying the universe of thousands of pollutants in the environment, so long as the Act only purported to control an “evil” few (i.e., the very worst actors, roughly 150 toxic substances currently out of over 23,000 in Canadian commerce). In this way, the Act left substantial room for provincial authority to address the thousands of other “non-toxic” substances and did not otherwise upset the balance of Canadian federalism (i.e., the division of powers between Parliament and provincial legislatures under the Constitution). The Bill C-28 approach, coupled with the views of the federal government and industry that maybe some (most?) of the substances in Schedule 1 really are not toxic in the traditional sense, has the potential to undermine the constitutional foundation of CEPA. This is a high price to pay to make the chemical industry feel better about its products.

Right to a Healthy Environment

• Three provisions in Bill C-28 purport to address a right to a healthy environment. First, the preamble states that every individual in Canada has a right to a healthy environment (as provided under the Act). Second, Bill C-28 (creating a new subsection (a.2) for existing s. 2(1) of the Act) also requires the Government of Canada to protect the right of every individual in Canada to a healthy environment as provided under the Act, which right may be balanced with relevant factors, including social, economic, health and scientific factors. Third, s. 5.1(1) states that the Ministers must, within two years after the coming into force of the section, develop an implementation framework for how the right to a healthy environment will be “considered in the administration of this Act”, including principles of environmental justice, avoidance of adverse effects that disproportionately affect vulnerable populations, and the principle of non-regression, balanced with the above-noted social, economic, health and scientific factors.
• Separately or together these provisions do not establish a right to a healthy environment. First, as a matter of law, preambles are not enforceable in and of themselves. They are merely interpretative aids.
• Second, the proposed amendments to s. 2 and s. 5.1 are so couched with caveats about balancing, for example, economic factors, that they hardly constitute an environmental Magna Carta.
• Third, the commitment to develop an “implementation framework” several years down the road is pretty vague and certainly does not on its face create a stand-alone “right” of individuals to a healthy environment. It is a regime entirely dependent on the will of government; i.e., the opposite of a rights-based approach to the law. A right requires a remedy for individuals to invoke in an independent forum (i.e., a court) when, for whatever reasons, government will not act. Such a remedy-based right is precisely what is lacking in Bill C-28. Moreover, s. 5.1 does not on its face contemplate further amendments to CEPA arising from development of the “implementation framework” that could result in a true “right and remedy” being established. A technical briefing by federal officials held on the day Bill C-28 was tabled in Parliament did not leave such an impression either.
• The 2017 report of the Standing Committee recommended amendments to CEPA that would have enshrined both procedural and substantive rights to a healthy environment. Bill C-28 deviates significantly from these Standing Committee recommendations. The government could have amended existing s. 22 of the Act, as recommended by the Standing Committee. Section 22 authorizes any person to bring an environmental protection action in a court of competent jurisdiction where there has been an offence committed under the Act that has caused significant environmental harm. Section 22 is circumscribed by many caveats, procedural obstacles, and conflicting legal principles. As a result, it has not been invoked by any member of the public since CEPA came into force in 2000. However, the Standing Committee and persons appearing before the Committee believed s. 22 could be re-fashioned into a workable remedy for members of the public to use in the courts in vindicating a right to a healthy environment. CELA drafted such amendments in 2018 that were supported by over 30 organizations across the country as part of a larger set of proposed changes to CEPA.
• Finally, the proposed Global Pact for the Environment, currently under discussion at the UN, also provides guidance on what a true right to, and remedy to ensure, a healthy environment would look like. Article 1 of the Pact (Right to an ecologically sound environment) states: “Every person has the right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment”. Moreover, Article 11 of the Pact (Access to environmental justice) states: “Parties shall ensure the right of effective and affordable access to administrative and judicial procedures, including redress and remedies, to challenge acts or omissions of public authorities or private persons which contravene environmental law, taking into consideration the provisions of the present Pact”. In short, Canada can do much better than what is currently in Bill C-28 on the issue of a right to a healthy environment.

Endocrine Disruption

• For the purpose of assessing whether a substance is toxic or capable of becoming toxic under s. 68 of the Act, amendments in Bill C-28 authorize the Minister of Environment to collect data and conduct investigations in relation to whether a substance has the ability to disrupt the endocrine system of an organism. This will improve existing law in relation to endocrine disrupting substances. The failure to explicitly mention disruption of the endocrine system in the existing law up to now allowed many substances to escape scientific review at the categorization and chemicals management stages under the Act if they did not exhibit any other type of toxicity.
• However, even with the proposed Bill C-28 amendments, the Minister is not authorized under s. 68 to require testing by industry with respect to endocrine disruption. The lack of a requirement to direct that testing be performed has often been the Achilles heel of the statute’s approach to assessing the toxicity of substances. Indeed, under the existing Act even where a requirement to test does exist (such as in s. 71) actual instances of requiring industry to test have been rare. Hence the need for third party enforcement by persons with a right to a healthy environment to ensure that testing does occur when, for whatever reasons, government does not require it. But Bill C-28 does not provide such a right.

Vulnerable Populations

• Bill C-28 amendments also will allow the Ministers of Environment and Health to consider available information on vulnerable populations in relation to a substance when engaging in a weight of evidence evaluation for a screening assessment or other risk analysis under proposed s. 76.1(2). This too would improve existing law. However, there often is not any (or not adequate) information available and the s. 76.1(2) amendments do not require that the Ministers direct that testing be undertaken by industry where there is an information gap. Again, an appropriate situation for third party enforcement by persons with a right to a healthy environment, but Bill C-28 does not provide such a mechanism.

In the weeks and months ahead, we will return to other aspects of Bill C-28 as the bill works its way through the Parliamentary process.