An Update to CEPA – A long time coming or too little, too late?

27 Apr An Update to CEPA – A long time coming or too little, too late?

An Update to CEPA –
A long time coming or too little, too late?

On April 13, 2021, the federal government brought forward the Strengthening Environmental Protection for a Healthier Canada Act or Bill C-28.[1] This Bill amends sections of the Canadian Environmental Protection Act, 1999, the Food and Drugs Act, and repeals the Perfluorooctane Sulfonate Virtual Elimination Act. Today; however, we will focus on proposed amendments to the Canadian Environmental Protection Act, 1999 (“CEPA”).[2]

The CEPA is the federal Act that manages and regulates prescribed types of pollution. Generally, CEPA conducts “activities related to the assessment and management of risks from chemicals, polymers and living organisms; programs related to air and water pollution, hazardous waste, air pollutant and GHG emissions; ocean disposal; and environmental emergencies.”[3] The Act declares that the Government of Canada “is committed to implementing pollution prevention as a national goal and as the priority approach to environmental protection”.[4] Pollution prevention is defined as “the use of processes, practices, materials, products, substances or energy that avoid or minimize the creation of pollutants and waste and reduce the overall risk to the environment or human health”.[5] The CEPA focuses on assessing and regulating substances that are listed pursuant to the Act.[6]

The CEPA has gone without any major updates since it was first passed, more than 30 years ago. In 2016, the federal government commissioned the Standing Committee on Environment and Sustainable Development to study the Act and propose updates.[7] They did so and in 2017, the Committee released their findings, summarized in a report made up of 87 recommendations, some 35 of which ended up in the Bill.[8] In this post we focus on three of these amendments, specifically the recognition of three environmental principles: the right to a healthy environment, the principle of non-regression, and the principle of environmental justice. This is not an exhaustive list of the proposed amendments but represents important environmental principles that were previously excluded from environmental legislation in Canada.

Right to a Healthy Environment

Put simply, the right to a healthy environment suggests that our laws should guarantee and protect a certain standard of environmental health for all citizens.

This principle has been a part of environmental advocacy for years. During our constitutional repatriation during the 1970s and 80s, the Canadian Environmental Law Association called for the right to a healthy environment to be included in the Charter of Rights and Freedoms.[9] David Boyd, current United Nations Special Rapporteur on human rights and the environment and renowned environmental lawyer, has been writing about the importance of this right for years including in his 2012 book The Right to a Healthy Environment[10] and the Environmental Law Centre has included a discussion of this right in numerous blogs, reports, and other publications. [11] If passed, this would be the first piece of legislation in Canadian history that would create such a right and as such, it has been a major talking point of the federal government since the Bill was released.[12]

Specifically, Bill C-28 amends the administrative duties of the Government of Canada to include the protection of the right of every individual in Canada to a healthy environment. However, details of how it will go about doing so are limited. [13] The current Bill is also lacking in a clear definition of what will be considered a ‘healthy environment’. Instead, the federal government has announced that they will be conducting future consultations to come to such a definition. [14] In order to be effective, this definition should be clear and should ensure a high enough standard to protect many aspects of the environment like air and water quality, habitats, and overall ecosystem health.

Next, the Bill requires the relevant Minister[15] to develop and publish an implementation framework setting out how the right to a healthy environment will be considered in the administration of the Act.[16] Once the framework has been released, the Bill requires annual reporting outlining application and use.[17] Specifically, the Bill sets out certain parameters for the implementation framework, for example that it shall include: [18]

• the principles of environmental justice and non-regression, both of which are discussed below;
• research, studies, and monitoring activities to support the protection of the right to a healthy environment; and
• a balance between the right to a healthy environment and other factors including social and economic factors.

This last provision stands out. Often, this type of balancing act is tipped in one direction. For example, the Species at Risk Act, another piece of federal environmental legislation also purports to balance the protection of species at risk with economic needs. However, in reality this balancing act has left certain species, particularly those that make up large commercial industries, like salmon, or those where protection interferes with major industry, like caribou, unprotected.[19]

Finally, even with proper implementation, this provision is limited by the fact that it will be confined to the four corners of the pages of CEPA and more specifically how it is administered.   Importantly, the legislation does not include any provisions regarding how violation of a right to a healthy environment may be actionable, either against parties who are releasing pollutants, or in relation to governments authorizing pollution that may be violation of such a right.

Overall, the scope and application of the right is more limited than has been advocated for in the past – particularly the inclusion of the right to a healthy environment in the Canadian Charter of Rights and Freedoms. If environmental rights were included in the Charter, all laws would need to uphold the same or could be declared unconstitutional. Clearly, this would have a more far-reaching impact, although implementation would be more difficult as it would require amendment of the Constitution.

Principle of Non-Regression

The principle of non-regression refers to the idea that existing environmental laws form a baseline standard of environmental protection which should not be reduced by later decisions or amendments.[20] In Bill C-28 the principle of non-regression is included as part of the required contents of the implementation framework for the right to a healthy environment. Specifically, Bill C-28, states that “the implementation framework shall, among other things, elaborate on (a) the principles to be considered in the administration of this Act, such as … the principle of non-regression.”[21]

Including the principle of non-regression in the implementation framework can help to ensure a baseline standard of protection throughout the Act including when managing toxic substances, controlling emissions, and more. Once implemented, the principle of non-regression can prevent these standards from being watered down. However, in order to be effective, it is critical that the implementation framework first set out a sufficient baseline standard.[22]  Annual reporting around non-regression is also important as it will provide a modicum of accountability in relation to how the substances under the Act are being administered.

Environmental Justice

 Environmental justice refers to the idea that all people should have equal access to environmental benefits and conversely that no community should have to bear environmental burdens, such as exposure to toxins, more than any other.[23] While the terms ‘environmental justice’ and ‘environmental racism’ were coined in the United States, the effects certainly exist in Canada. Unsurprisingly, environmental burdens have historically affected minority and low-income communities more than others and in Canada this disproportionately affects Indigenous peoples and other people of colour. While other legislation referring to environmental justice has been brought forward at the provincial level,[24] and as private members bills at the federal level,[25] none of them have passed first reading.

Bill C-28 incorporates the principle of environmental justice into the pollution prevention regime through references to ‘vulnerable populations.’ To begin, Bill C-28 adds a section to the preamble, which will now include the following paragraph: “whereas the Government of Canada recognizes the importance of considering vulnerable populations in assessing whether substances are toxic or capable of becoming toxic.”[26] The purpose section of the Act will also add ‘protection for the health of vulnerable populations’.[27]

Vulnerable populations are defined 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.”[28] In a summary of the proposed changes, the Government of Canada specified that this can “include biological susceptibility (e.g. infants, pregnant women) and potential exposure (e.g. Indigenous communities eating traditional foods, areas where pollution standards may be exceeded).”[29]

From there, references to vulnerable populations continue throughout the Bill. For example, it requires Ministers to consider any available information regarding vulnerable populations and cumulative effects when conducting and interpreting the results of certain risk assessments under CEPA.[30] It also requires the implementation framework, which is due within two years of the passing of the Act, to include a focus on the avoidance of adverse effects that disproportionately affect vulnerable populations.[31] For the purpose of assessing whether a substance is toxic or is capable of becoming toxic; research, investigation, and evaluation can take into account whether there is a vulnerable population in relation to the substance.[32] When the Ministers are conducting and interpreting the results of any assessment or review, they shall consider available information on any vulnerable population in relation to the substance and on the cumulative effects that may result from exposure to the substance in combination with exposure to other substances.[33] Finally, amendments can facilitate the making of geographically targeted regulations that could, for example, be used to address pollution “hot spots”.[34]

 In putting forward these amendments, the Government argues that they “complement the recognition of a right to a healthy environment and support the Government’s duty to protect it.”[35] This is a promising statement and we will have to pay attention to how it is carried out.

Other changes proposed in the Bill include references to:

• the Government’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples;[36]
• the way that cumulative effects can change the toxicity or impact of a substance;[37]
• limiting the use of animal testing; [38] along with
• updates to details of the toxic substances’ classification process.

Limitations

 If this Bill becomes law it will provide a major update to a previously outdated Act; however, limitations remain.

One limitation arises with the issue of enforcement. While these new principles may be included in the Act, it will be crucial to see how they will be enforced. For example, when will we get the definition of a ‘healthy environment’ and will it be stringent enough to make a difference? Will federal agencies have the funding and authority necessary to keep track of how vulnerable populations are being protected? And will any required Regulations be passed in a timely fashion? If any of these examples are not fulfilled, they can defeat the purpose of these initial provisions.

Another limitation is that each of these principles only applies to the operation of CEPA which is focused only the regulation of toxic substances. Without broader adoption of these principles in other pieces of environmental legislation, the impact may be limited. As an example, environmental justice issues often arise when environmentally hazardous industries are sited near minority communities, something which is beyond the scope of CEPA and its related regulations. Look for example at Fort Chipewyan in northern Alberta, the Chemical Valley in Ontario, or the historical town of Africville in Nova Scotia (for more details see the following links here and here). In each of these locations, a toxic industry was approved near a minority community despite ongoing negative health impacts.

Considering environmental justice only in the regulation of toxic substances is not enough, environmental justice should also be considered during the approval process for activities that may produce or use toxic substances. This in turn likely requires changes to the Impact Assessment Act and other environmental legislation which do not currently include any reference to environmental justice.[39]

While the federal government’s Gender-based Analysis Plus (GBA+) guidance (see for instance guidance published by the Impact Assessment Agency of Canada) may be used to encourage application of these same principles, it is limited. [40]  This guidance is not set out in statute nor are there specific parameters to be followed. Instead, this is “an analytical tool – a way of thinking, as opposed to a specific set of prescribed methods” which leaves a lot up to the discretion of individual actors and is lacking in enforcement options.[41]

This is just one example of the interplay between different environmental statutes. In order to be truly effective, consistency between acts should exist. This is why environmental advocates have long pushed for the right to a healthy environment to be included in the Charter – because this would set a standard that would apply across all Canadian laws.

Overall, Bill C-28 is a step forward and if current provisions end up as law it could help to improve our federal pollution prevention regime. However, even with these small victories, we must pay attention to how these provisions are enforced and push for them to be included in other environmental statutes.

[1] Bill C-28, Strengthening Environmental Protection for a Healthier Canada Act, 2nd Sess, 43rd Parl, 2021 (first reading 13 April 2021) [Bill C-28].

[2] Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA].

[3] Government of Canada, “Understanding the Canadian Environmental Protection Act” (13 April 2021) online: https://www.canada.ca/en/services/environment/pollution-waste-management/understanding-environmental-protection-act.html.

[4] CEPA, supra note 1, preamble.

[5] Ibid, s 3(1).

[6] Pest Control Products Act, SC 2002, c 28.

[7] House of Commons, Standing Committee on Environment and Sustainable Development, Healthy Environment, Healthy Canadians, Healthy Economy: Strengthening the Canadian Environmental Protection Act, 1999 (June 2017) (Chair: Deborah Schulte).

[8] Stephanie Taylor, “Liberals propose enshrining the right to a healthy environment in legislation” (13 April 2021) CBC News online: https://www.cbc.ca/news/politics/wilkinson-canadian-environment-protection-act-1.5985781.

[9] Toby Vigod & John Swaigen, “Brief to the Joint-Senate/House of Commons Committee on the Constitution of Canada Bill C-60” (29 September 1978) Canadian Environmental Law Association online: https://cela.andornot.com/archives/media/docs/FONDS%20CELA/SOUS-FONDS%20Publications/SERIES%20Other/FILE%20CELA%20briefs%20and%20responses%20to%20government%20consultations%20Other/ITEM%20Brief%20on%20Bill%20C-60/Brief%20on%20Bill%20C-60.pdf.

[10] David Boyd, The Right to a Healthy Environment: Revitalizing Canada’s Constitution (British Columbia: UBC Press, 2012).

[11] Brenda Heelan Powell, “Environmental Rights in Alberta: An Annotated Environmental Bill of Rights for Alberta” (1 March 2018) Environmental Law Centre online: https://elc.ab.ca/wp-content/uploads/2018/03/ELC-Annotated-EBR-March-2018.pdf [Brenda Heelan Powell].

[12] Stephanie Taylor, “A right to healthy environment included in proposed changes to legislation: Wilkinson” (13 April 2021) Toronto Star online: https://www.thestar.com/politics/2021/04/13/a-right-to-healthy-environment-included-in-proposed-changes-to-cepa-wilkinson.html [Stephanie Taylor] Government of Canada, News Release, “Government of Canada delivers on commitment to strengthen the Canadian Environmental Protection Act, 1999 and proposes to recognize a right to a healthy environment” (13 April 2021) online: https://www.canada.ca/en/environment-climate-change/news/2021/04/government-of-canada-delivers-on-commitment-to-strengthen-the-canadian-environmental-protection-act-1999-and-proposes-to-recognize-a-right-to-a-hea.html.

[13] Bill C-28, supra note 1, clause 3(2).

[14] Stephanie Taylor, supra note 12. “

[15] Minister of the Environment and Climate Change.

[16] Bill C-28, supra note 1, clause 5.

[17] Ibid, clause 5.1(5).

[18] Ibid, clause 5.1(2).

[19] World Wide Fund for Nature, “Living Planet Report Canada: A National Look at Wildlife Loss” (2017) at 12 online: https://wwf.ca/wp-content/uploads/2020/02/WEB_WWF_REPORT_v3.pdf. See 2020 version here: https://wwf.ca/wp-content/uploads/2020/09/WWF-7-x-9-LPRC_Web.pdf.

[20] Brenda Heelan Powell, supra note 11 at 12; David Boyd, “Elements of an Effective Environmental Bill of Rights” (2015) 27(3) J. Env. L. & Prac. 201; Linda Collins and David Boyd, “Non-regression and the Charter Right to a Healthy Environment” (2016) 29 J. Env. L. & Prac. 285.

[21] Bill C-28, supra note 1, clause 5.1(2)(a).

[22] Brenda Heelan Powell, supra note 11 at 13.

[23] Dr. Benjamin F. Charles Jr., “Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites” (1987) Commission for Racial Justice United Church of Christ at xiii online: https://d3n8a8pro7vhmx.cloudfront.net/unitedchurchofchrist/legacy_url/13567/toxwrace87.pdf?1418439935; Shirley Thompson, “Flooding of First Nations and Environmental Justice in Manitoba: Case Studies of the Impacts of the 2011 Flood and Hydro Development in Manitoba” (2015) 38 Man LJ 220 at 222.

[24] Bill 32, An Act to Address Environmental Racism, 1st Sess, 63rd Gen Ass, Nova Scotia, 2017 (first reading 6 October 2017).

[25] Bill C-230, An Act respecting the development of a national strategy to redress environmental racism, 1st Sess, 43rd Parl, 2019-2020 (first reading 26 February 2020).

[26] Bill C-28, supra note 1, clause 2(4).

[27] Ibid, clause 3(1).

[28] Ibid, clause 3(2).

[29] Government of Canada, “Bill C-28 Strengthening Environmental Protection for a Healthier Canada Act: Summary of Amendments” (13 April 2021) at 3 [Bill C-28 Summary of Amendments].

[30] Bill C-28, supra note 1, clause 20.

[31] Ibid, clause 5.1(2).

[32] Bill C-28, supra note 1, clause 16(2).

[33] Ibid, clause 76.1(2).

[34] Bill C-28 Summary of Amendments, supra note 30 at 4.

[35] Ibid at 3.

[36] Bill C-28, supra note 1, clause 2(3).

[37] Ibid, clauses 2(4), 16(2), 20,

[38] Ibid, clause 2(5).

[39] Impact Assessment Act, SC 2019, c 28, s 1.

[40] Impact Assessment Agency of Canada, “Gender-based Analysis Plus in Impact Assessment (Interim Guidance” (14 March 2019) Government of Canada online: https://www.canada.ca/en/impact-assessment-agency/services/policy-guidance/practitioners-guide-impact-assessment-act/gender-based-analysis-plus.html.

[41] Ibid.

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