Twenty-First Century Environmental Law: Modernizing the Canadian Environmental Protection Act, 1999

On April 13, 2021, the Government of Canada introduced before Parliament Bill C-28. This Bill seeks to amend the Canadian Environmental Protection Act, 1999 [1] (“CEPA” or the “Act”) to advance a transition to a greener economy and the strengthening of environmental protection through the use of the latest science. The proposed changes seek to confront this century’s most pressing environmental issues. In addition to CEPA, the Bill also proposes related amendments to the Food and Drugs Act and the Perfluorooctane Sulfonate Virtual Elimination Act.

CEPA is Canada’s national environmental protection law whose aim is to prevent and control pollution. At Schedule 1, CEPA lists toxic substances that are controlled by the Act. The proposed amendments to CEPA through Bill C-28 would constitute the first major reform of the Act since it was last updated over 20 years ago. The following article provides a summary of some of the government’s most notable proposed changes.

PROPOSED CHANGES

Better Packaging and Labelling.

Several acts currently provide authorities to regulate the labelling of harmful substances in products, including CEPA, the Food and Drugs Act, and the Canada Consumer Product Safety Act. Amendments proposed by Bill C-28 may enhance mandatory labelling for certain consumer products and improve information for supply chain managers. The amendments aim to ensure that Canadians receive better information through packaging and labelling on the risks posed by toxic substances to the environment or human health. The government is set to commence consultations on mandatory labelling requirements by fall 2021.

Products that May Release a Toxic Substance.

The government proposes to expand the list of materials with respect to which information-gathering and regulatory powers may be exercised to include products that may release a toxic substance. New powers will also allow for control measures to be implemented regarding the design and functioning of products to minimize the release of volatile organic compounds listed at Schedule 1 of CEPA (e.g., for portable fuel containers).  The changes will allow the government to gather information on the quantities, composition, manufacturing, processing, packaging, labelling, uses and distribution of products that contain a toxic substance or that may release a substance into the environment.

New Plan of Chemicals Management Priorities.  

The proposed amendments will set out a new multi-year process for prioritizing and assessing substances that will reflect the constantly evolving science and input from Canadians regarding the properties of a substance as well as exposure to the substance. Information-gathering, monitoring, and research will support these assessments. A new CEPA provision will allow any person to request that the government assess a substance to determine whether it is toxic or capable of becoming toxic.

Watch List of Toxic Substances.

The government will publish and maintain a “Watch List” of substances regarding which there is reason to believe that they are capable of becoming toxic or have been determined to be capable of becoming toxic such as with increased exposure. The Watch List is intended to help importers, manufacturers and consumers select safer alternatives and to avoid regrettable substitutions of problem substances.

environmental lawyer, CEPA

Impacts on Vulnerable Populations.

Notably, the proposed amendments to CEPA recognize the impacts on the health of vulnerable populations and the right to a healthy environment. 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 that result from inadequate environmental protections. Bill C-28 also proposes to amend the preamble of CEPA to confirm the government’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples.

The principles to be considered in the administration of CEPA will include the principles of environmental justice, which will consider the disproportionate impacts on vulnerable populations, and the principle of non-regression. [2] The government seeks to also conduct studies, including biomonitoring surveys, to assess the role that substances are having in illnesses or health problems on vulnerable populations including from the cumulative effects of exposure. Regulations can then be implemented to better enable the protection of communities at risk in pollution “hot spots”.

Implementation Framework.

Following the coming into force of the proposed amendments on the right to a healthy environment under CEPA, the government will have two years to develop an implementation framework that sets out how the right to a healthy environment will be considered in the administration of the Act. To that end, the government will consult with any interested persons and report on the implementation framework annually. This will ensure that the implementation framework improves overtime to support new thinking about risk management and the disproportionate impacts of substances on certain populations.

CONCLUSION

When CEPA was adopted by Parliament in 1988, it consolidated and replaced several other laws dealing with various kinds of environmental protection.  One of the main aims of the Act is the identification and regulation of substances which could potentially pose a risk to the environment and/or to human health. To date, it has been used to reduce air pollution from industry and vehicles, ban asbestos and prevent plastic microbeads from contributing to plastic pollution in oceans, rivers and lakes.

Substantial amendments to CEPA, as the ones proposed by Bill C-28, are rare. The government’s efforts to bring CEPA in line with the latest science and to recognize Canadians’ right to a healthy environment are progressive and welcomed by many. However, the proposed amendments will likely increase scientific due diligence and disclosure obligations for industry even as they aim to assist industry in making better choices with respect to packaging and products. As such, to better understand how the proposed changes will affect your organization, always consult with an environmental lawyer.

 

For questions or further consultation, please contact Denisa Mertiri at denisa@greenearthlaw.ca.

 

[1] S.C. 1999, c. 33.

[2] In the environmental law context, this is also known as the standstill principle. It refers to existing environmental laws being treated as a baseline that can be strengthened but not weakened. The principle seeks to prevent the future weakening of environmental laws and policies, often referred to as rollbacks.