Blog: The Curious Position of the Federal Government on Bill S-5

Pollution Prevention but Not Pollution Prevention Planning: The Curious Position of the Federal Government on Bill S-5

Blog by Joseph F. Castrilli, Counsel and Fe de Leon, Senior Researcher, CELA

At a recent hearing of the House Standing Environment Committee on Bill S-5 amendments to the Canadian Environmental Protection Act (CEPA), federal officials testified that they had no objections to promoting pollution prevention, since the Act already requires ministers to give priority to pollution prevention when managing the risks created by substances. So far so good.

A non-government amendment before the Standing Committee would have required pollution prevention planning for every listed toxic substance in Schedule 1 of CEPA. However, federal officials testified that pollution prevention planning should not be required for every listed toxic substance in Schedule 1 of CEPA because it would be an unnecessary imposition, as such planning is only one way to promote pollution prevention. The amendment was defeated by a combination of government and Official Opposition members on the Standing Committee. Less good.

Federal officials also observed that there are a wide range of risk management instruments that are more stringent and more immediately effective that could be applied to a toxic substance. These included, according to the officials, prohibiting the use of a substance, which is the most effective way to achieve pollution prevention, since it ensures that the substance is not used and never enters the environment. True, but in practice how often does prohibition lead to a substance not being used and never entering the environment?

In a previous blog on Bill S-5’s eliminating the virtual elimination provisions of CEPA, we examined the effectiveness of CEPA’s prohibition regulation, the federal government’s preferred substitute for virtual elimination. Our conclusion was that the limited evidence available did not support the federal government view. For two toxic substances CELA examined that are listed in the prohibition regulations we saw, in one case, land disposal and, in the second case, air releases, respectively, increase substantially in the period 2017 to 2021 based on industry reporting under CEPA’s National Pollutant Release Inventory (NPRI).

It is difficult to understand the current federal position on pollution prevention planning given the history of this issue in Canada. For example, in 1995 the House Standing Environment Committee reported that:

“… the Committee believes that pollution prevention should be the priority approach to environmental protection. In addition, the Committee firmly believes that CEPA should provide a key legislative base for promoting pollution prevention in Canada. …a major shift in emphasis is required in the legislation, from managing pollution after it has been created to preventing pollution in the first place. We believe that pollution prevention will avoid, eliminate and reduce more pollution than “react and cure” strategies and that it will do so more cost-effectively. To this end, we contend that emphasis should be placed on a variety of pollution prevention strategies and tools that encourage more decisions to be made at the point of manufacture or use. Such strategies and tools contribute to the efficient use and conservation of natural resources, material and feedstock substitution, product reformulation, and the adoption of clean production methods and practices.

The Committee also acknowledges that the transition to clean production and practices will inevitably be an ongoing process. There will be situations where control and remediation will remain the base available options. Nonetheless, 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.

The environmental objective for requiring pollution prevention planning is to overcome the inertia of decades of performance-based pollution control standards and to realign management practices to conform with a pollution prevention perspective.”

The federal government’s 1995 official response to the Standing Committee report appeared to indicate that the government was on the same page as the 1995 Standing Committee:

“Pollution prevention planning is the foundation of the pollution prevention approach. It is a systematic,  comprehensive method of identifying options to minimize or avoid the creation of pollutants or waste associated with many types of public and private sector activities. Pollution prevention plans can be developed for industrial sectors such as manufacturing, transportation and forestry, or at a more localized level such as for an individual refinery, factory or farm. Pollution prevention plans can also be used for specific substances and for avoiding or minimizing the creation of pollutants and wastes associated with their use. Pollution prevention plans can also be produced for processes such as metal forming, machining, plating and painting which are common to many sectors.”

However, other comments in the government’s 1995 response report and eventual Bill (Bill C-32) that led to the version of CEPA enacted in 1999, took a highly discretionary approach to pollution prevention planning; one that was not consistent with the federal government’s 1995 report’s position that it is the “foundation of the pollution prevention approach”. Under the Act as it has existed since 1999, plans can only be required if the Minister exercises his or her discretion to require them. A big part of the current problem with CEPA that Bill S-5 does not correct.

It is disappointing that in 2023 there is such federal reluctance to endorse pollution prevention planning for every toxic substance listed in Schedule 1 of the Act since the frequency of its use under CEPA over the last two decades has been so spotty. Roughly 16 percent of the 150 toxic substances listed in Schedule 1 of CEPA have had a pollution prevention plan in the last two decades. At this pace, it would take until the 22nd century for every toxic substance currently listed in Schedule 1 to have a pollution prevention plan. Waiting for Godot to arrive would take less time.

Moreover, pollution prevention (i.e., eliminating the use and creation of toxic substances in commerce) is not pollution abatement (i.e., controlling the emission levels of substances otherwise allowed to remain in commerce and industry). Yet, federal practice has frequently seen the pollution prevention program under the Act implemented as if it was a mere pollution abatement regime. This has had significantly adverse consequences for the effectiveness of CEPA as a tool for eliminating Schedule 1 toxic substances from industry, commerce, and the environment. Based on NPRI data for the period 2006-2020 our analysis, reported elsewhere, has shown that while national air emissions decreased by millions of kilograms for 32 CEPA Schedule 1 toxic substances that are also cancer-causing agents, their on-site disposal and land releases increased by tens of millions of kilograms during the same period. In other words, reliance on pollution abatement instead of pollution prevention simply resulted in these toxins being shifted from one environmental pathway to another. This does not constitute environmental health progress. It simply represents putting a different part of the environment and a different part of the public at risk.

Furthermore, when compared to the laws and programs of other jurisdictions that Canadian officials benchmark CEPA against, even our alleged pollution abatement successes pale by comparison. For example, for the same 15-year period (2006-2020) respecting air emissions of 24 CEPA Schedule 1 toxic substances that are also carcinogens common to both Ontario and New Jersey, Ontario’s air releases were over 44 times greater than those of New Jersey’s (over 22 times greater when adjusted for population differences between the two jurisdictions).

Finally, the wide range of other risk management instruments alluded to, but not specified, by federal witnesses that purport to be more stringent or more immediately effective than a pollution prevention plan can be observed in a review of the types of measures that often have been applied to CEPA Schedule 1 toxic substances. Not infrequently they include voluntary codes, guidelines, and unenforceable agreements. The high level of releases of substances to different environmental pathways as reported by the NPRI program, and referred to above, underscores the extent to which volunteerism as well as traditional pollution abatement regulations are not a substitute for a robust pollution prevention plan regime for toxic substances. The kind of regime voted down by the Standing Committee in February 2023.  

Photo is smelter stack of a nickel plant showing the emission on the air. Courtesy of Shutterstock