Extended Producer Responsibility in Alberta: A Few Inches Forward          

Extended Producer Responsibility in Alberta: A Few Inches Forward

On November 15, 2021, the provincial Minister of Environment and Parks, Jason Nixon, introduced Bill 83, which is the Environmental Protection and Enhancement Amendment Act, 2021.[1] According to the government’s press release, this Bill will enable the provincial government to introduce extended producer responsibility [“EPR”] in Alberta. EPR is a recycling model where the manufacturers and retailers of products are responsible for the end of life management of those products, often by setting up and running recycling programs to handle them.[2]

Currently, the Government of Alberta is looking at introducing EPR to handle the recycling of printed paper and packaging materials, which would most likely include single use plastics and other packaging like materials.[3]As well, the government is likely to introduce an EPR program for household hazardous and special wastes, which include household products that are flammable, corrosive, or toxic, as well as pesticides, batteries, and non-fillable pressurized containers.[4]

Practically, Bill 83 makes some minor amendments to the Environmental Protection and Enhancement Act[5], which is Alberta’s general environmental legislation. In particular, the Bill makes modifications to two of the provisions that establish the province’s existing recycling programs so that those provisions do not apply to all of the recyclable materials recognized under the Act, unless the regulations say so. In addition, the Bill allows the government to create regulations that exempt any recyclable material, activity, industry, person, or organization from any other regulations passed under the Environmental Protection and Enhancement Act and for setting out an application process for that exemption.

Without more information, it is difficult to know exactly how these changes enable EPR in Alberta. However, it is most likely that the government is planning to introduce its EPR framework through regulations, and these changes were necessary to allow those regulations under the Environmental Protection and Enhancement Act.[6]Looking back to the details of Bill 83, the changes to the provisions around Alberta’s existing recycling programs would allow the government to differentiate between the materials that should be recycled under the existing programs and the materials that would fall under an EPR framework. Likewise, the new regulation making powers would allow the government to create exemptions within an EPR framework, so that it is possible to exempt small producers who may not be able to carry the financial burden of an EPR program.[7]

Otherwise, the biggest conclusion that can be drawn from Bill 83 is that the new EPR framework will likely be introduced by regulation instead of legislation. For the record, the difference between establishing an EPR program by legislation and by regulation is not huge, although legislation is harder to change, because it has to go through the entire legislative process in the legislature. By contrast, regulations can be enacted by the provincial cabinet, which is a much more streamlined, although less deliberative process.[8]

On the whole, when it comes to establishing an EPR framework in Alberta, the real devil will be in the details. Unfortunately, this means that, until the government actually passes its new EPR regulation, it will be impossible to draw any significant conclusions about the quality of Alberta’s new EPR system.

In the meantime, the best window we have into Alberta’s future EPR framework is through the consultations the Government of Alberta conducted to support its work on the framework. Specifically, in the spring of 2021, the government carried out public consultations through an online survey.[9] Around the same time, the government undertook more detailed consultations with directly affected stakeholders, including producers, municipalities, and recycling service providers.[10] This latter process included a discussion paper, which laid out some of the government’s thinking on how they might organize an EPR framework for Alberta.[11]

Within the discussion paper, it should be said that there are some notable positives.

1. The government proposes that oversight of the EPR programs designed by producers be carried out by a third-party organization.[12] This is a good thing, because the third party organization can be funded by fees from producers, instead of being funded by the provincial government. Quite simply, this puts more of the financial responsibility for the EPR framework onto producers.
2. In the discussion paper, the government proposes that recycling targets be included in the EPR regulation.[13] This is a good thing, because when EPR targets are set by the government instead of by the producers, EPR programs tend to have better recycling outcomes.[14]
3. Finally, in the discussion paper, the government proposes fairly robust annual reporting from producer run recycling programs, including audited performance data.[15] This is a good thing, because quality information about program performance makes it easier to ensure that producers are meeting their responsibilities under the EPR framework.

Alongside the positives in the discussion paper, it also needs to be said there are a few open questions the government will need to figure out.

1. The discussion paper does not mention how the government will handle the transition from municipally run recycling programs to producer run programs for printed paper and packaging.[16]This will be important to ensure that municipalities do not end up with useless service contracts or stranded assets.
2. The government proposes to include e-commerce suppliers in its printed paper and packaging EPR program.[17] The discussion paper says that the government will consider jurisdictional best practices for dealing with e-commerce, but the truth is that this is just a tricky issue to deal with. In a nutshell, the province’s jurisdiction does not extend past its borders, so any EPR obligations on out of jurisdiction e-commerce producers would have to be voluntary or come about through enforcement agreements with other jurisdictions, neither of which is a perfect solution.[18]
3. Finally, the discussion paper is silent on enforcement tools, meaning roughly how the government or the third-party oversight organization will respond to producers that do not meet their obligations under the EPR framework. It is always important to have a good enforcement system to make sure producers follow the rules, so this will be something to watch for in the new EPR regulations.

Overall, it can be said that the approach described in the discussion paper makes a lot of sense, and the legal framework is generally in line with what has already been done in other provinces. Of course, until the government actually enacts its framework, it remains to be seen what changes may be made in light of the government’s consultations. One notable criticism of EPR frameworks in other jurisdictions is that their main objectives have been compromised by modifications made in stakeholder interests[19]. Put a bit more bluntly, this means that the environmental objectives of EPR systems can be watered down at the consultation stage, due to other considerations like administrative simplicity and producer recalcitrance.

Ultimately, it remains to be seen what will happen in Alberta and whether the original intentions of the EPR framework will withstand the interests of the various stakeholders. At this point, all we can do is wait for the government to release the new EPR regulations, which are expected sometime in 2022. In the meantime, feel free take a look at the Environmental Law Centre publication, Extended Producer Responsibility: Designing the Regulatory Framework , which goes into much more detail about the design of the legal framework behind EPR programs.

[1] Bill 83, Environmental Protection and Enhancement Amendment Act, 2021, 2nd Sess, 30th Leg, Alberta, 2021, online: Legislative Assembly of Alberta https://docs.assembly.ab.ca/LADDAR_files/docs/bills/bill/legislature_30/session_2/20200225_bill-083.pdf.

[2] See “Improving Alberta’s waste management approach” (2021), online: Government of Alberta https://www.alberta.ca/release.cfm?xID=803717224022E-9A33-BFBE-0B0E1AB3BBDFC3EC; “Improving Alberta’s waste manage” (2021), online: Government of Alberta https://www.alberta.ca/improving-albertas-waste-management.aspx.

[3] “Extended Producer Responsibility (EPR) for Packaging, Paper Products, Single-Use Plastics, as well as Hazardous and Special Products” (2021) at 13-15, online: Government of Alberta https://your.alberta.ca/19738/widgets/83280/documents/52493.

[4] Ibid at 19-20.

[5] Environmental Protection and Enhancement Act, RSA 2000, c E-12.

[6] See Alberta, Legislative Assembly, Alberta Hansard, 30th Leg, 2nd Sess, No 127 (17 November 2021) at 6524 (Searle Turton).

[7] See “Extended Producer Responsibility (EPR) for Packaging, Paper Products, Single-Use Plastics, as well as Hazardous and Special Products” (2021) at 17-18, online: Government of Alberta https://your.alberta.ca/19738/widgets/83280/documents/52493.

[8] See Environmental Protection and Enhancement Act, RSA 2000, c E-12, s 175.

[9] See “Extended Producer Responsibility engagement” (2021), online: Government of Alberta https://www.alberta.ca/circular-plastics-economy-engagement.aspx.

[10] “What we heard: Extended Producer Responsibility (EPR) for single-use plastics, packaging, paper products and hazardous and special products” (15 November, 2021), online: Government of Alberta https://open.alberta.ca/publications/what-we-heard-extended-producer-responsibility.

[11] “Extended Producer Responsibility (EPR) for Packaging, Paper Products, Single-Use Plastics, as well as Hazardous and Special Products” (2021), online: Government of Alberta https://your.alberta.ca/19738/widgets/83280/documents/52493.

[12] Ibid at 8-10.

[13] Ibid at 11, 15-16, 20-21.

[14] OECD, Extended Producer Responsibility: Updated Guidance for Efficient Waste Management (Paris, France: OECD Publishing, 2016) at 42, online: https://www.oecd-ilibrary.org/environment/extended-producer-responsibility_9789264256385-en.

[15] “Extended Producer Responsibility (EPR) for Packaging, Paper Products, Single-Use Plastics, as well as Hazardous and Special Products” (2021) at 11-12, online: Government of Alberta https://your.alberta.ca/19738/widgets/83280/documents/52493.

[16] See ibid at 10.

[17] Ibid at 7-8.

[18] OECD, Extended Producer Responsibility and the Impact of Online Sales (October 2018) at 10, online: https://www.oecd.org/environment/waste/policy-highlights-extended-producer-responsibility-and-the-impact-of-online-sales.pdf.

[19] See e.g. Alice Castell, Roland Clift, & Chris France, “Extended Producer Responsibility Policy in the European Union: A Horse or a Camel?” (2004) 8:1-2 Journal of Industrial Ecology 4.