CEPA is Amended: The Right to a Healthy Environment and Tougher Chemical Management

Posted by on Jul 7, 2023 in Blog | 0 comments

Bill S-5, Strengthening Environmental Protection Act for a Healthier Canada Act, has received Royal Assent.  This Bill amends the Canadian Environmental Protection Act (CEPA).

The amendments update the Canadian law (established in 1999) in two significant ways.  First, it recognizes that all Canadians have a right to a healthy environment and second, it amends the assessment of toxic chemicals.

Right to a Healthy Environment

Similar to some provincial legislation such as the Ontario Environmental Bill of Rights, CEPA recognizes the right of Canadians to a healthy environment.

As stated in a blog by the law firm, Osler, “Bill S-5…amends subsection 2(1) of CEPA to require the Government of Canada to exercise its powers in a manner that ‘protects the environment and human health, including the health of vulnerable populations’, which are defined for the first time in CEPA as ‘a group of individuals within the Canadian population who, due to a greater susceptibility or greater exposure, may be at an increased risk of experiencing adverse health effects from exposure to substances’.”

Future Climate Change Litigation

In a blog by the law firm Borden Ladner Gervais, they state, “The new right to a healthy environment may be used to bolster rights-based arguments in future climate litigation against government climate inaction…”

The rights also include the right to breathe clean air, drink clean water, and eat safe food, all of which are legally protected for the first time.

In general, Environment and Climate Change Canada states that the Right to a Healthy Environment includes the following categories:

  • Environmental justice – This includes the avoidance of adverse effects that disproportionately affect vulnerable populations.
  • Non-regression – This includes the continuous improvement in environmental protection.
  • Intergenerational equity – This includes the importance to meet the needs of the present generation without compromising the ability of future generations to meet their own needs.

Bill S-5, Strengthening Environmental Protection Act for a Healthier Canada Act, has received Royal Assent (Photo by Elijah Hiett on Unsplash).

Toxic Chemicals

With respect to chemical management, amendments to CEPA are intended to speed up the process for designating substances “toxic” under the regulation.  Of the 4,300 substances designated as priority for review in 2006, there are still 330 that have not been evaluated.  As we understand, these remaining chemicals are supposed to be evaluated by 2024.  This 17-year delay has been one of the main points of criticism.

To address this, Bill S-5 requires the Ministers of Environment and Health to release written explanations for delays lasting more than two years.

The amendments also repeal the Virtual Elimination List, which was essentially reserved for the most dangerous pollutants.  This list has only ever included two substances – one of those chemicals was never used in Canada.

The remaining “Schedule 1” list will be divided into Part 1 and Part 2.

  • Part 1 is reserved for toxic substances of the highest risk, prioritizing total prohibition of their use.  Bill S-5 stipulates 19 substances for regulation under Part 1, such as the toxic pesticide DDT (dichlorodiphenyltrichloroethane).
  • Part 2 is for substances of lower risk, and regulations will prioritize pollution prevention rather than eradication.  Bill S-5 designates 132 substances in Part 2, including asbestos, lead, petroleum, and single-use plastics (Source: Osler).

Watch List

Finally, with respect to managing toxic substances, the amendments require the Minister of Environment to maintain a “Watch List” of substances that can pose a risk if uses change or exposure increases.  The Watch List is intended to help importers and manufacturers select safer alternatives and avoid replacing one problem chemical with another (Source: BLG).

How these amendments are implemented should be monitored closely by companies that use chemicals, as it may affect your operations.

There are other changes in the CEPA Amendments including reducing the reliance on animal testing when assessing substances.  There are also changes to the Food and Drugs Act to strengthen the environmental risk assessment and risk management of drugs.

If you have questions or need assistance with an environmental issue, contact Christopher Paré, P.Geo., Q.P. at 519-948-7300, Ext. 114. 

Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.

This blog was drafted by Alan Hahn.  Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management.  He has worked in environmental management for 45 years.  He has written hundreds of blogs and articles.  His published work includes HazMat Magazine, BizX Magazine, Michigan Lawyers Weekly, GreenStone Partners, Manure Manager Magazine, and Progressive Dairy.

This blog was reviewed by Christopher Paré, P.Geo.  Chris is a senior geoscientist and manager of Dragun’s Windsor, Ontario, office.  Chris has more than 30 years of experience on projects ranging from environmental site assessments (Phase One/Two ESA), excess soils, remedial investigations, soil and groundwater remediation, Permits to Take Water, Records of Site Conditions, vapour intrusion, and site decommissioning.  Chris is a frequent speaker, author, and expert witness.  See Chris’ bio.

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