Edging to Green

A five-year political circus ended with the passage by the Senate last September of the Canadian Environmental Protection Act, 1999. The Act (CEPA 1999) is expected to come into force this spring after numerous regulations have been made public and consultations conducted with a new national advisory committee. For the first time such a committee is to have representatives of aboriginal governments.

With a few important exceptions, the Canadian federal government has not been a key environmental actor in recent years. Budget cuts and a public distracted by economic issues allowed environmental protection to become a low priority, to the frustration of the environmental community. But tucked into the existing Canadian Environmental Protection Act was a provision that required a review of the existing Act by the House of Commons’ Standing Committee on the Environment and Sustainable Development. Commencing work in 1994, the committee set its sights on a renewed federal environmental presence.

The committee’s report called for a fundamental shift in environmental protection towards sustainable development. The change was to be achieved through pollution prevention, an ecosystem approach, and the precautionary principle. It wanted to see the virtual elimination of bio-accumulative, persistent or inherently toxic, anthropogenic toxic substances. A variety of new mechanisms were designed to force government action, permit public participation and bring market forces into play to support the policy goals.

These concepts have survived into the Canadian Environmental Protection Act 1999 despite the fact that the Act was extremely contentious and is described as the statute which had the most proposed and approved amendments of any statute in recent history. The October 1999 federal budget allocated significant resources to implementing the new legislation. That fact, coupled with the presence of a strong federal environment minister, suggests that the government may take the opportunity presented by the new Act to reactivate federal participation in environmental matters.

Pollution prevention strategies

CEPA 1999 places pollution prevention at centre stage. The preamble indicates that “the primary purpose of this Act is to contribute to sustainable development through pollution prevention.”

The Act gives the government the right to require businesses subject to the federal government’s jurisdiction to prepare and implement “pollution prevention plans.” Businesses affected include banks, broadcasters, airports, airlines, railways and interprovincial businesses. Also involved are businesses using substances on the CEPA 1999 Toxic Substances List or contributing to international air or water pollution.

The contents of these pollution prevention plans are not yet established, but the government intends to publish model examples. A plan is to be kept at the facility and Environment Canada has indicated that it will request to see it as part of a normal facility inspection. As well, the same companies will have to file a declaration with the government as to the plan’s preparation and ongoing implementation.

The Act continues toxic substances regulation through the mechanisms of the Domestic Substances List (DSL) (which is a list of substances used commercially in Canada in the 1984-86 period or subsequently adequately reviewed), the Non-domestic Substances List (NDSL) for those substances not on the DSL, the List of Toxic Substances (made up of the substances determined to be toxic such as asbestos, lead, vinyl chloride, etc.), and the Priority Substances List made up of substances which are to be assessed for toxicity on an expedited basis.

The Act requires the creation of a Virtual Elimination List for bio-accumulative, persistent and inherently toxic substances which will be permitted to be released into the environment only “below the level of quantification” as determined through sensitive but routine testing. CEPA 1999 also now requires the government to conduct a review of the toxicity of the approximately 23,000 substances on the Domestic Substances List within a seven-year period, a process which can be expected to be costly and contentious.

The toxic substances provisions apply an important new concept: the precautionary principle. The precautionary principle is defined in the preamble as “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (the term “cost-effective” was reinserted over the objections of the “greener” members of Parliament). It is noted that the precautionary principle is a key component of many international initiatives. The government and certain decision-making or decision-assisting organizations are required to apply the precautionary principle in a number of cases.

The Act applies the DSL and NDSL concepts to “living organisms,” which are defined as “animate products of biotechnology.” The worldwide debate over the use and identification of genetically modified organisms is important to Canada as a major food and seed exporter and as a country with aspirations to continue developing a biotech industry. Consequently, we can expect that these biotechnology provisions will be referred to frequently.

The preamble states that the federal government must be able to fulfil its international obligations in respect of the environment. Consequently, provisions dealing with international issues are included throughout. For example, provisions dealing with international air pollution (which almost certainly includes greenhouse gas emissions), international water pollution, protection of the marine environment, disposal at sea and the export and import of hazardous waste, are included or expanded.

The Act enables the government to adopt economic instruments, market-based approaches and regulations relating to tradable units. These powers would help in the introduction of the emission trading and other programs contemplated in the Framework Convention on Climate Change and the proposed Kyoto Protocol. As well, the Act contemplates emission reduction credits for vehicles, engines or equipment, and the ability to move the credits between automobile companies.

Open to the public

The Act contains a number of provisions intended to encourage public participation. An Environmental Registry will be created where a broad range of documents is to be made available to the public. As well, if a request to the government for an investigation of an alleged offence is not dealt with on a reasonable basis, a citizen may bring an environmental protection action which may result in remedial orders or other remedies (but not damages payable to the person bringing the action).

Other interesting items in the Act include its confirmation of the adoption by the federal government of the “polluter pays” principle. It creates the possibility of using “environmental protection alternative measures” where offences have been committed or are alleged. It also makes it a statutory obligation for directors and officers of corporations throughout Canada to act in a “duly diligent” manner.

CEPA 1999 arms the federal government with a broad range of new powers and duties. Recently, additional funding has been provided to Environment Canada, and the department is widely reported to be hiring new inspectors and doing investigations. The possibility that the post operating-deficit Liberal government will increase its activity in the environmental area using the Act, perhaps supplemented by a new Species at Risk Act, cannot be discounted.

On the other hand, the realities of the Canadian political system, the struggle within the Liberal party between its “industry” and “green” wings, and the constellation of strong provincial leaders (e.g. Klein, Harris and Bouchard) likely to oppose federal regulatory initiatives, may prevent the Canadian government from taking up the challenge.CCE

Gray Taylor is a partner with Davies, Ward & Beck, barrister
s and solicitors of Toronto.