Canadian Environmental Protection is Getting Stronger, but is it Strong Enough?

Nature Scene from OntarioBy Morgan Martel

What is CEPA?

The Canadian Environmental Protection Act (CEPA) is a cornerstone of Canada’s environmental legislation. It aims to prevent pollution and protect against both environmental harms and their resulting impacts on human health. Without CEPA, many areas of environmental pollution would be left entirely unregulated, including air pollution. However, the original CEPA has several shortcomings that fail to meaningfully protect Canada’s environment. A notable example comes from Alberta’s brownfields. Brownfields are areas that could otherwise be used for urban development if not for the presence of hazardous substances, pollutants, or contaminants. CEPA contains provisions for environmental clean ups and remediation of these brownfields but only when the contamination is caused by a listed toxic substance. With a narrow scope for what can be defined as a “toxic substance”, CEPA has been ineffective at cleaning up Alberta’s brownfields.

Why does it need to be updated?

  • The original rendition of CEPA lacked in a few critical areas:
  • The original CEPA offered no explicit right to a healthy environment
  • Parliament had no duty to protect the natural environment that our lives so deeply rely on
  • Does not consider the cumulative effects of pollution on the environment
  • Does not consider their effects on vulnerable populations
  • Only regulates toxic substances excluding products that contain or release toxic substances

What is Bill S-5?

On February 9, 2022, Bill S-5- Strengthening Environmental Protection for a Healthier Canada Act was presented before the Senate after successfully passing through the House of Commons. The Act seeks to update the Canadian Environmental Protection Act (CEPA). This is the bill’s first modernization since its inception in 1999.

What does Bill S-5 cover?

Right to a Healthy Environment  The amended CEPA in Bill S-5 will outright guarantee that every Canadian has the right to a healthy environment as designated in the Act’s preamble. This provision is in response to the UN Human Rights Council, which in 2021 recognized the basic right to a clean, healthy, and sustainable environment.

The Act requires that relevant Ministers craft an implementation framework that sets out how the right to a healthy environment will be considered under the act. The Ministers must also conduct research, studies, or monitoring activities to support the government in protecting this right. Considering the gravity of air pollution issues, this provision could allow air quality monitoring reports to directly inform the interpretation of the right to a healthy environment.

The catch is that there is no set of rules for how the Ministers’ must interpret this right. Thus, the level of air pollution that will officially violate one’s right to a healthy environment is left to the Ministers’ discretion which is not officially bound by scientific or other standards. Cumulative effects of pollution on the environment The new CEPA will commit to considering cumulative effects of pollution when conducting and interpreting risk assessments under CEPA. These considerations along with accounting for cumulative effects could limit the amount of toxic substances allowed to be released into the environment. This could mean big things for air quality legislation given that there are innumerable sources that cause PM2.5 pollution (e.g. motor vehicles, power plants, and agricultural burning).

Effects of pollution on vulnerable populations

The new CEPA will commit to considering vulnerable populations when conducting and interpreting risk assessments under CEPA. The act will consider how toxic substances may adversely affect those who are more biologically susceptible to their effects (e.g. pregnant women) and those who have a higher rate of potential exposure (e.g. Indigenous communities). However, it is not clear what a “commitment to considering vulnerable populations and cumulative effects” means in practice. It is once again up to the Ministers’ discretion, which could have serious downsides for environmental protection given that the Act allows for these concerns to be “balanced against economic factors”. Regulates products that contain or release toxic substances Bill S-5 will extend the relevant Minister’s regulatory powers to products containing toxic substances, or products that may release a toxic substance into the environment. The relevant Ministers will be required to list substances that have been determined to be capable of becoming toxic or that they have reasonable grounds to suspect are capable of becoming toxic. This list of toxic substances will be split into two parts for implementation. Part 1 is reserved for the higher risk substances as defined in Bill S-5 and will be subject to more stringent risk management objectives (e.g. total, partial, or conditional prohibitions). Higher risk substances will be those considered “toxic” within s.64 of the Act and that are recommended by the Ministers for “virtual elimination”. Part 2 is for all other toxic substances listed in the Act and will be subject to “regular risk management actions” (e.g. pollution prevention actions). These substances in Part 2 will be substances also considered “toxic” but that are not recommended for “virtual elimination”. Under CEPA, a toxic substance is any substance (depending on its concentration) that may pose an immediate or long-term harm to the environment or its biodiversity, or that may endanger the environment or human health. The requirements for recommending a substance for “virtual elimination” are not yet defined given their novelty. However, it can be assumed that in making this decision the Ministers will consider the “impacts on human and non-human organisms and the physical environment” as is outlined in the CEPA risk assessment policy.

These measures will provide a wider breadth of substances/products that can be regulated so as to prevent environmental pollution. In the context of air pollution, these amendments allow for a broader range of substances and products that emit PM2.5 to be prohibited or at a minimum, regulated. However, this provision has come under fire by environmentalists, from scientists to lawyers alike- for its failure to include provisions that allow for faster action on prohibiting and managing toxins. Where do we stand?

The right to a healthy environment has been long called for by environmental professionals as a needed step for environmental protection. The revised CEPA can mitigate the damages of environmental pollution – if the CEPA amendments protect the environment to the fullest extent. However, a number of flaws with the proposed CEPA amendments threaten to undermine its ultimate goal. That is why we must make use of the little lobbying time we have left.In June, the Bill passed the Senate and it will now have to pass through the House of Commons before it can become law. Bill S-5 will be read when the House resumes in the fall and it will be read three times before the House once it is presented. Opportunities for amendments and intervention will come at the second reading of the Bill. How can you get involved? Your voice is critical to strengthening CEPA. Contact your local MP to encourage them to bridge the missing gaps in the new CEPA.

About the Author: Morgan Martel is pursuing her B.A. in Law and Legal Studies at Carleton University. She spent the past year as a junior policy analyst working mainly on water related issues for Environment and Climate Change Canada. She is currently pursuing a year abroad at SciencesPo in Reims, France. She hopes to continue in environmental law and policy after undergrad while pursuing law school.

References

Fawcett-Atkinson, M. (April 28, 2022).

The worst of the worst. Canada’s National Observer: https://www.nationalobserver.com/2022/04/28/news/pending-changes-canadas-environmental-law-dont-solve-toxic-pollution.

Parliament of Canada. (February 9, 2022).

Bill S-5. Parliament of Canada. https://www.parl.ca/DocumentViewer/en/44-1/bill/S-5/first-reading.

United Nations Human Rights Council. (April 12, 2022). Right to healthy environment. United Nations. https://www.ohchr.org/en/statements-and-speeches/2022/04/right-healthy-environment#~:text=As%20you%20all%20know%2C%20on,reality%20for%20all%20of%20us.