Significant changes to the Canadian Environmental Protection Act, 1999 (CEPA) have been introduced in the Senate Bill (S5), “Strengthening Environmental Protection for a Healthier Canada Act.” The Senate completed the first reading on February 9, 2022.
What is CEPA?
According to Environment and Climate Change Canada, “CEPA is Canada’s cornerstone federal environmental protection law that protects Canadians and the environment. Over the years, CEPA has been used to prevent plastic microbeads from entering our water, ban asbestos, and prohibit the use of BPA (bisphenol A) in baby bottles. By reintroducing this bill, the Government will strengthen and update CEPA, to keep pace with the evolving science around the risks associated with harmful chemicals and pollutants.”
CEPA has not been amended in more than 20 years, a fact that has not escaped the federal government. “The modernization of CEPA has been on the horizon since the Liberal government was elected in 2015 and tasked the Standing Committee on Environment and Sustainable Development with completing a comprehensive review of CEPA in March 2016” (Source: Blake, Cassels & Graydon, LLP).
Below, we take a very brief look at some of the main areas. See more details on the Government of Canada’s website.
Right to a Healthy Environment
The issue of a healthy environment for all has been talked about for several years. In 2019, the United Nations Special Rapporteur on human rights and hazardous substances and wastes, Baskut Tuncak visited sites in Canada to focus on steps taken by the Federal Government to protect human rights compromised by hazardous substances. His report on Sarnia said in part, “The condition of the Aamjiwnaang First Nation in Sarnia is deeply unsettling…It is one of the most polluted places in Canada, dubbed ‘chemical valley’.”
With respect to the proposed changes in CEPA, the Backgrounder provided by the Government of Canada states, “The Government would be required to develop an implementation framework, which would set out how that right will be considered in the administration of the Act. The framework would detail, among other things, how principles such as environmental justice and non-regression would be considered in implementing the Act, as well as how the right would be balanced with relevant factors, such as social, health, economic and scientific considerations.”
This framework would be required to be implemented within two years of the law coming into force.
Clifford Lawton and Christopher Paré of Dragun explain data to UN Representative, Baskut Tuncak, during a site tour on June 1, 2019. Photo credit: Aamjiwnaang
Vulnerable Populations
Mentioned in the Right to a Healthy Environment, the environmental justice component is fleshed out further below.
Again, from the Backgrounder, “The amendments define 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 those in poor health. Those with greater exposure may include workers and those living in areas where levels of pollution are particularly high.”
Talked about for years in Canada, the cumulative effects of multiple industries is a concern. Environmental permits, issued based on risk, are for individual companies not a total maximum load in the community. Consistent application of existing environmental regulations would go a long way in protection of these vulnerable communities.
Toxic Substances
From the law firm, MLT Aikins, “The Ministers of Environment and Climate Change and Health would be required (to) compile a list of substances they have reason to suspect are capable of becoming toxic or that have been determined to be capable of becoming toxic. The Ministers would also be required to respond to a request from any person to assess a substance to determine whether it is toxic or capable of becoming toxic. The Ministers shall consider the precautionary principle, any vulnerable populations and any cumulative effects resulting from the exposure to the substance in combination with exposure to other substances” (emphasis added).
Precautionary Principle
Use of the precautionary principle, has been both lauded and criticized. This excerpt from an article in Science Direct summarizes the tension of this principle. “Precautionary principles bridge the gap between weakly understood causes of potentially either grave or irreversible environmental damages and potentially costly policy interventions. These principles provide a moral justification for acting even though causation is unclear. This condition forces decision-makers inevitably to confront a variety of difficulties. Fundamentally, the dilemma is that the ethical choice, better safe than sorry, can be costly because an action designed to avoid a potential damage can be counterproductive for society: a seemingly precautionary action can do more harm than good.”
Significant Impact
There is a lot to consider in the CEPA amendments. As pointed out by the law firm McMillan, “These changes to Canada’s environmental regime have the potential to significantly impact a wide range of industries and businesses in such areas as chemical manufacturing, oil and gas, petrochemicals, pharmaceuticals and natural resources.”
We will continue to monitor federal and provincial environmental regulatory issues and report on them in this space.
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