By Aaron Freeman

Amidst the partisan acrimony over environmental issues in recent months, some good news emerged from the House environment committee last week. After more than a year of study, the committee came forward with a well-reasoned report recommending changes to the Canadian Environmental Protection Act (CEPA).

CEPA is Canada’s overarching pollution law. It is the legislation the government is using in its recent air pollution and climate change plan, and contains the tools to address a wide range of other environmental challenges that are now top-of-mind for Canadians. 

Unfortunately, CEPA is failing to protect the health and environment of Canadians. 

A good pollution law would require action once scientists identify serious threats. CEPA has a wide range of tools for dealing with pollution, but in far too many cases, there is nothing that requires the government to take corrective action.

The law sets out a multi-stage process for assessing and developing regulations to limit the release of harmful substances. But the timelines for taking action are either too lax or non-existent. The committee proposes stringent deadlines for each stage of regulating toxic substances, to ensure better accountability and more timely action to control pollution.

The committee also addresses a serious gap in the current regulatory regime.  Many toxic substances are found not in smokestacks or effluent pipes, but in everyday consumer products, such as stain repellants found in clothing and upholstery, chemicals found in plastics, and flame retardants found in mattresses and consumer electronics. To date, Canada has lagged far behind other countries in limiting exposure to these newly emerging toxins, and departmental officials have preferred to use outdated laws that are ill-equipped to deal with the threats they pose. The committee makes it clear that the government should take action on toxins in consumer products, and that CEPA should be the primary legal tool for doing so.

If a chemical is toxic, as well as having been identified as persistent and bioaccumulative (in other words, if it stays in our bodies and the environment for long period of time), CEPA suggests it should be “virtually eliminated.” This approach makes sense, as these chemicals generally pose the greatest threat. But thanks to industry lobbying during the last review of the Act nearly a decade ago, the virtual elimination section was packed with bureaucratic barriers that make it nearly impossible to implement. One such hurdle requires defining the precise level at which a substance can be detected in order to define when virtual elimination has been achieved. The result? Endless technical arguments over what constitutes “zero,” such that, until five months ago, not one substance had been added to the virtual elimination list, and this substance was already on its way out of the Canadian marketplace.

The report suggests focusing on the principle behind the virtual elimination: making sure that manufacturers stop using the substance. The committee recommends a practical approach of using this sort of prohibition as a way of implementing virtual elimination.

The preamble of CEPA states that the law takes “an ecosystem approach.” However, this is the last time the word “ecosystem” appears in the legislation. Areas such as the Arctic are uniquely vulnerable to pollution. Canada’s most significant pollution hot spot is the Great Lakes-St. Lawrence basin, where 45 percent of Canada’s toxic air pollution is generated. Yet these areas receive no specific attention in CEPA. The committee recognizes the need to protect vulnerable ecosystems, making specific mention of the Great Lakes. 

The report should have gone further, by explicitly making CEPA the implementing mechanism for Canada’s international Great Lakes obligations. Canada is lagging far behind the United States in cleaning up the Great Lakes, despite the fact that, on a per facility basis, Canadian factories in this area pollute 93 percent more than their U.S. counterparts. A legal mandate would encourage Canada to step up to the plate.

The committee did not go as far as it should have in other areas, such as requiring manufacturers to provide the public with more information about new chemicals entering the marketplace. But overall, it provides the government with a good starting point to fix Canada’s dysfunctional pollution law. 

The government is obliged to respond to the report by the end of August. Hopefully, the government will use the multi-partisan consensus that the committee has achieved as a basis for a new bill to strengthen CEPA.
– Aaron Freeman is the Policy Director for Environmental Defence. The opinions expressed are his own.