Will Vulnerable Populations Be More, Less, or Remain the Same, Vulnerable as a Result of Bill S-5 Amendments to CEPA?
Blog by Joseph F. Castrilli, Counsel and Fe de Leon, Senior Researcher, CELA
In mid-February 2023, the federal environment minister issued a media release as Bill S-5 amendments to the Canadian Environmental Protection Act inched closer to passage in the House of Commons. There was nothing new in the media release that hadn’t already been said by the federal government in prior media releases on the subject going back to the April 2021 introduction of Bill C-28 amendments to CEPA (identical in content to Bill S-5) in the last Parliament. Indeed, the Backgrounder attached to the February 2023 media release “outlined” the Bill S-5 amendments as they read before first reading in the Senate of Canada in February 2022.
One could, perhaps, understand why the federal government repackaged a year-old outline of Bill S-5 and included it with its latest media release on the subject. While a lot has been said by many witnesses appearing before Senate and House Standing Environment Committees about the inadequacy of the Bill S-5 amendments since their February 2022 introduction in the Senate on such issues as defining vulnerable populations, requiring mandatory testing where available information is inadequate to determine toxicity, and retaining explicit authority to regulate toxic substances on a geographic basis, not a lot has changed in the Bill’s content since then. The failure to adopt amendments to Bill S-5 in these and related areas may doom the attempt to improve environmental health outcomes for vulnerable populations under an amended CEPA.
Protecting Vulnerable Populations?
Under a heading entitled “Protecting Vulnerable Populations” the Backgrounder says the following:
“CEPA amendments will also require that the Government administers the Act in such a way as to minimize risks to the health of vulnerable populations.
The amendments define a vulnerable population as “a group of individuals within the Canadian population who, due to greater susceptibility or greater exposure, may be at an increased risk of experiencing adverse health effects from exposure to substances.” Those with a greater susceptibility may include, for example, children and people in poor health. People with greater exposure may include workers and those living in areas where levels of pollution are particularly high.
To better protect people and communities in these situations, changes to CEPA would provide that the Government’s duty under the Act to protect the environment and human health includes protecting vulnerable populations. The changes would also require the ministers to consider available information regarding vulnerable populations in risk assessments. In addition, amendments would require the Government to conduct research and studies, including biomonitoring surveys, specifically in relation to the role of substances in illnesses or in health problems that may relate to vulnerable populations. The amendments would also enable geographically targeted regulations to better support the protection of communities at risk from local sources of pollution.”
Several of the statements in the above quoted material are of concern and merit comment.
Failure of Bill S-5 to Expand Vulnerable Populations Definition
Notwithstanding the Bill S-5 definition for “vulnerable populations”, set out above, amendments to this definition were proposed by the Leader of the Green Party before the House Standing Environment Committee to clarify as well as expand the definition’s scope, meaning, and application. However, the response of federal government witnesses appearing before the committee suggested that the defined term in Bill S-5 respecting “vulnerable populations” was not expanded by the government because that would have the effect of limiting the term and certain groups objected to being identified as a vulnerable population. The proposed amendment to Bill S-5 was voted down by members of the Standing Committee.
Although the federal explanation may have been persuasive for members of the committee voting down the amendment to Bill S-5, we have our doubts about whether the explanation provided by federal witnesses is a satisfactory answer to the issues raised. Greater detail in a definition can always be of assistance to courts, the regulated community, the public, as well as regulators in understanding the purpose and scope of the definition. The legislatures of other jurisdictions have not been disturbed by the prospect of greater detail in a “vulnerable populations” definition. The 2021 State of Washington Environmental Justice Act is instructive in this regard. Section 2(14)(a) of this law defines “vulnerable populations” as meaning:
“population groups that are more likely to be at higher risk for poor health outcomes in response to environmental harms, due to: (i) adverse socioeconomic factors, such as unemployment, high housing and transportation costs relative to income, limited access to nutritious food and adequate health care, linguistic isolation, and other factors that negatively affect health outcomes and increase vulnerability to the effects of environmental harms; and (ii) sensitivity factors, such as low birth weight and higher rates of hospitalization”.
For greater certainty, s. 2(14)(b) of the law then adds that:
“vulnerable populations includes, but is not limited to: (i) racial or ethnic minorities; (ii) low-income populations; (iii) populations disproportionately impacted by environmental harms; and (iv) populations of workers experiencing environmental harms”.
Section 2(5) of the Washington state law also goes on to define other terms arising from this definition, such as “environmental harm”.
“‘Environmental harm’ means the individual or cumulative environmental health impacts and risks to communities caused by historic, current, or projected:
(a) Exposure to pollution, conventional or toxic pollutants, environmental hazards, or other contamination in the air, water, and land;
(b) Adverse environmental effects, including exposure to contamination, hazardous substances, or pollution that increase the risk of adverse environmental health outcomes or create vulnerabilities to the impacts of climate change;
(c) Loss or impairment of ecosystem functions or traditional food resources or loss of access to gather cultural resources or harvest traditional foods; or
(d) Health and economic impacts from climate change.”
Other terms arising from the “environmental harm” definition are in turn defined in the Washington state law, such as “cumulative environmental health impacts”. Thus, expanding the definition of “vulnerable populations” does not appear to pose the obstacles for Washington state legislators that it appears to pose for federal government officials in Canada. To the contrary, expansion improves understanding. There is hardly a word limit imposed in drafting complex legislation that justifies the minimalist approach to legislative drafting characterized by the federal government’s defining of terms in Bill S-5.
We note, in passing, that members of the House Standing Environment Committee also voted down an amendment to Bill S-5 that would have defined the term “cumulative effects”. In our view, failing to define terms or keeping a definition vague when you do define something does not help elucidate the meaning of the statutory term. Rather it obscures it. Obscurity is not helpful in a statute dealing with control of toxic substances.
Failure of Bill S-5 to Require Mandatory Testing Where Available Information Inadequate on Impacts of Substances on Vulnerable Populations
As noted above, the Backgrounder also states that Bill S-5 would require the ministers to consider available information regarding vulnerable populations in risk assessments.
On its face, this is an important government amendment because it would improve existing law by explicitly acknowledging for the first time in CEPA the need to consider available information relating to vulnerable populations. However, the government’s Bill S-5 amendment did not go far enough. Often there is not any (or not adequate) information available, and the government’s amendment did not require that the Ministers direct that testing be undertaken by industry where there is an information gap.
In short, what is fundamentally lacking in Bill S-5 is a mechanism compelling testing to occur when, for whatever reasons, the Minister does not require it. In this regard, in June 2022, the Standing Senate Committee on Energy, the Environment and Natural Resources presented its report to the full Senate of Canada on amendments to Bill S-5 arising from that committee’s hearings. The Standing Committee’s report also included certain observations, including the following:
“5. This committee wishes to convey their concern surrounding industry data collection where information gaps exist on the toxicity of substances they use or emit. Bill S-5 authorizes collection of data on whether a substance is an endocrine disruptor. Bill S-5 also authorizes the Minister to consider available information on vulnerable populations and the cumulative effects of a potential toxic substance. However, in none of these cases does Bill S-5 direct the Minister to require testing by industry when data gaps exist on whether a substance is toxic or is capable of becoming toxic. In such instances, this committee believes that testing should be done by industry where and when available information on substance toxicity is unavailable or inconclusive.”
It was this background that in February 2023 informed proposed amendments to Bill S-5 before the House Standing Environment Committee, again by the Leader of the Green Party, to correct this gap by requiring mandatory testing by industry when available information is insufficient to make the appropriate determinations.
Unfortunately, the reaction of federal government witnesses appearing before the committee to this proposed mandatory testing amendment simply missed the mark in our view. Federal witnesses pointed to other measures that could be used, including monitoring, partnering with academia, leveraging data from other jurisdictions, or requesting it from industry to complete a risk assessment. The point of the amendment though was if, after all these efforts have been exhausted, there is still not sufficient information available about the substance, then testing performed by industry, or by the government and paid for by industry, should be mandatory. A simple, straight-forward amendment vigorously opposed by the federal government and voted down by the government and Official Opposition members of the Standing Committee.
Finally, government reliance on information derived from other chemicals in the same family but not the exact chemical (called analog or structure activity relationship analysis), an increasing government preference in performing risk assessments in Canada, is not always a good substitute for testing the chemical itself.
Bill S-5 Repeal of Explicit CEPA Authority for Geographic Regulation of Toxics Not a Recipe for Protecting Vulnerable Populations
The Backgrounder, as noted above, also indicated that the Bill S-5 amendments would enable geographically targeted regulations to better support the protection of communities at risk from local sources of pollution.
This statement is a mystery. CEPA already has enabling authority that makes geographically focused regulation possible to protect the environment, biological diversity, or human health. Although section 330(3) provides that regulations made under the Act apply throughout Canada, section 330(3.1) permits exceptions to this rule to allow limited geographic application of regulations promulgated under the authority of sections 93 (toxic substances), 140 (fuel), 167 (international air pollution) or 177 (international water pollution).
What does Bill S-5 do with this existing authority? It proposes to repeal both sections 330(3) and 330(3.1), and nothing like them is proposed to be added to any other Bill S-5 amendments.
In pursuing this approach, the federal government appears to be relying on the general authority under section 8 of the Interpretation Act that states that every enactment applies to the whole of Canada, unless a contrary intention is expressed in the enactment. While this approach may allow the federal government to achieve the same result as sections 330(3) and (3.1) of CEPA, including addressing “hot spots”, reliance on the generality of section 8 obscures, rather than highlights, the authority to do so. In practice, there have never been any geographically focused regulations promulgated under CEPA, and removing the explicit authority to make such regulations hardly seems like a recipe for it to occur in future.
Not expanding the definition of vulnerable populations. Not requiring mandatory testing when available information is insufficient. Repealing existing authority to promulgate geographic specific regulations. When one threads these missed opportunities and missteps together they do not appear to add up to Bill S-5 coming to the rescue of vulnerable populations in Canada where toxic, or would-be toxic, substances are concerned. These are all un-forced policy errors for which time is running out for Parliament to correct.
A shorter verison of this opinion piece appeared in the March 8, 2023 issue of The Hill Times. Reprinted with permission.