Will Bill S-5 amendments undermine Canada’s international biodiversity commitments?

It will be hard for Canada to declare that it has protected ‘30 by 30’ if the humans and wildlife within those zones continue to be subjected to some of the most pernicious substances on the planet.

By Joe Castrilli, CELA counsel and Fe de Leon, CELA senior researcher
This opinion piece originally appeared in the January 25, 2023 issue of The Hill Times. Reprinted with permission

Something is definitely amiss for those who have been watching Canada’s recent international commitments to prevent biodiversity loss from highly hazardous chemicals. What is amiss is the federal government’s business as usual approach to control of toxic substances in proposed Bill S-5 amendments to the Canadian Environmental Protection Act (CEPA). Bill S-5 is currently in the final stages of being considered by Parliament’s House of Commons Standing Committee on Environment and Sustainable Development.

Preventing Biodiversity Loss by Reducing Highly Hazardous Chemicals

The United Nations Biodiversity Conference ended in December 2022 with what some would call an historic agreement on reversing existing and preventing future biodiversity loss through a variety of conservation and restoration measures for at least 30 percent of the world’s lands, inland waters, coastal areas, and oceans by 2030. The so-called “30 by 30” aspiration. To achieve these objectives the Agreement is structured around four overarching goals and 23 targets.

Canada was an enthusiastic supporter of the Biodiversity Agreement, particularly because Canada co-hosted the conference in Montreal and hoped it would prove as effective as the Montreal Protocol of 1987. The Montreal Protocol is an international agreement designed to stop production and import of ozone depleting substances and reduce their concentration in the atmosphere to help protect the earth’s ozone layer. It is widely regarded as one of the most successful international environmental agreements the member states of the United Nations have ever produced for the control of substances dangerous to human health and the environment.

Like the Montreal Protocol, dangerous substances are also a key focus of the Biodiversity Agreement; in particular, “highly hazardous chemicals”. The objective of Target 7 of the Agreement states in part: “Reduce pollution risks and the negative impact of pollution from all sources, by 2030, to levels that are not harmful to biodiversity and ecosystem functions and services, considering cumulative effects, including: … reducing the overall risk from…highly hazardous chemicals by at least half…”

Why Bill S-5 Changes to CEPA Risk Undermining Biodiversity Agreement on Chemicals

However, protecting “30 by 30” could be seriously undermined in Canada if the Bill S-5 amendments on toxic substances are approved by Parliament as currently drafted. We say this for several reasons. First, Bill S-5 takes the unusually risky, confusing, and totally unnecessary step of dividing the Act’s Schedule 1 List of Toxic Substances – which has been a single unitary list in the statute for decades – into two parts and for the first time treating the substances in the two parts significantly differently from each other for risk management purposes. Doing this leaves the impression that one part’s substances might not pose the types of risks that justified their placement in Schedule 1 in the first place. This Bill S-5 amendment is coupled with another one that would remove the title of Schedule 1 as being a List of Toxic Substances, though the text of the statute would confusingly continue to refer to the Schedule as such. Chemical industry representatives have applauded these changes as “moving away” from what they call the “inappropriate toxic substances label”. However, CELA views bifurcation of the Schedule and the manipulation of the Schedule’s title as potentially risking the constitutional foundation for regulation of toxic substances under CEPA. We say this because the Supreme Court of Canada upheld the Act in 1997 as valid federal legislation under the criminal law power of the Constitution on the basis that it was directed at substances that posed an “evil” or “injurious effect upon the public”.

Unfortunately, the Bill S-5 changes to CEPA will: (1) invite industry litigation – indeed they may have done so already – challenging the constitutional basis for current or future designation of substances as toxic under CEPA; (2) divert federal government resources from regulation development to defending such court challenges; and (3) have a chilling effect on the nature and extent of future decisions about regulating toxic substances. Put simply, these Bill S-5 amendments are too high a price to pay to make the chemical industry feel better about its products. They certainly will not contribute anything positive to Canada’s obligations to address “highly hazardous chemicals” under the Biodiversity Agreement.

Second, quite apart from the constitutional problems posed by the Bill S-5 amendments they also have the potential to undermine CEPA’s effectiveness even if they survive judicial scrutiny for constitutionality. The Bill S-5 amendments, in dividing Schedule 1 into two parts, place just 19 out of 151 of the Schedule’s substances (i.e., less than 13 percent of the total number of toxic substances in the Schedule) into a new Part 1. These substances will be subject to analysis as to whether there are feasible alternatives to their use, and whether they should be totally, partially, or conditionally prohibited from Canadian commerce. In general, these 19 substances correspond to what Bill S-5 amendments call “highest risk” substances, or substances constituting a danger in Canada to human life or health and are carcinogenic, mutagenic, or toxic to reproduction.

Third, Bill S-5 would place the remaining 132 toxic substances in Schedule 1 (i.e., over 87 percent of the total number in the Schedule) in a new Part 2. Substances in Part 2: (1) will not be subject to prohibition from Canadian commerce; (2) will not be subject to examination of feasible alternatives; and (3) will most likely, based on the federal government’s approach to “pollution prevention” with respect to Schedule 1 substances over the last two decades, only be subject to abatement of their concentrations emitted into the environment.

Fourth, despite Bill S-5’s bifurcation of the Schedule there is precious little to differentiate the environmental and human health impacts of many of the substances in the two parts and many reasons to fear equally, if not more so, the substances in Part 2. For example, there are far fewer cancer-causing agents in Part 1 (5) compared to Part 2 (upwards of 40). Because of this it is hard to fathom why Part 2 substances will be subject to much less stringent risk management measures compared to Part 1 substances.

Fifth, less stringent risk management measures for Part 2 toxic substances carry serious consequences for Canada and raise significant doubt about the country’s ability to meet its commitments under the Biodiversity Agreement generally and compared to other countries. For example, comparing the releases to air of 24 CEPA Schedule 1 toxic substances that are also carcinogens common to both Ontario and New Jersey for the period 2006 to 2020 showed that Ontario’s air releases of these substances were 44 times greater than New Jersey’s (22 times greater when adjusted for population differences between the two jurisdictions). Under Bill S-5 most of these 24 carcinogens would be placed in Part 2 of Schedule 1 of CEPA where they would be subject to less stringent risk management measures. Considering that Environment Canada officials have said they try to benchmark CEPA programs against New Jersey, which they say has an extremely effective toxics initiative, the results to date have not been flattering to Canada and will not likely be improved by the current Bill S-5 amendments.

Finally, it will be hard for Canada to declare that it has protected “30 by 30” if the humans and wildlife within the “30 by 30” zones continue to be subjected to some of the most pernicious substances on the planet.

Time to Snatch Victory from the Jaws of Business as Usual

Thus, when Canada’s commitments under the Biodiversity Agreement are viewed through the lens of the Bill S-5 amendments to CEPA, the nation’s primary law for controlling toxic substances, it would appear highly unlikely that Canada will be able to control “highly hazardous chemicals,” despite its commitment to do so. The solution to this problem is to reverse the Schedule 1 amendments in Bill S-5 and rethink others along the lines of what CELA has proposed to the federal government and Parliament. It is not too late to snatch victory from the jaws of business as usual.