On April 13, 2021, the federal government introduced Bill C-28,
which, if enacted, will amend the Canadian Environmental
Protection Act, 1999 (CEPA) and other federal
CEPA is the primary federal legislation aimed at pollution prevention and has not been significantly amended since 1999. The primary focus of Bill C-28 is on modernizing Canada's regulation of toxic substances through amendments to CEPA.
The modernization of CEPA has been on the horizon since the Liberal government was elected in 2015 and tasked the Standing Committee on Environment and Sustainable Development with completing a comprehensive review of CEPA in March 2016. In June 2017, the Standing Committee released its report, "Healthy Environment, Healthy Canadians, Healthy Economy: Strengthening the Canadian Environmental Protection Act, 1999" which included 87 recommendations to update CEPA.
Bill C-28 proposes amendments that are intended to address the historical criticisms that CEPA is unwieldy and ineffective at regulating newly discovered toxic substances found in consumer products and that it provides inadequate protection for vulnerable communities. In addition to modernizing the regulation of toxic substances, a hallmark of the Bill is its proposal to recognize every Canadians' right to a healthy environment.
RECOGNIZING A RIGHT TO A HEALTHY ENVIRONMENT
- Bill C-28 proposes to amend CEPA to recognize the right of every individual in Canada to a healthy environment to the extent provided for under the Act. Furthermore, the Government of Canada has a duty to protect that right when administering CEPA. The Bill provides that the right may be balanced with certain relevant factors, including social, economic, health and scientific factors. It is useful to note that similar rights currently exist under provincial environmental legislation in some provinces.
- The precise scope of this right and how it will be protected or enforced in the administration of CEPA is not yet defined. Rather, the amended legislation would require an "implementation framework" to be established within two years of the date that the legislation becomes effective. The implementation framework is intended to elaborate on how: (i) the principle of environmental justice, which includes the avoidance of adverse effects that disproportionately affect vulnerable populations, and the principle of non-regression will be addressed in the administration of CEPA; (ii) research, studies and monitoring will support the protection of the right; and (iii) the right to a healthy environment will be balanced with social, economic, health, scientific and other relevant factors.
The Government has indicated that interested persons will have an opportunity to participate in the development of the implementation framework.
CONTROLLING TOXIC SUBSTANCES
- The Minister of the Environment and the Minister of Health (collectively, the "Ministers") will be required to put in place a Plan of Chemicals Management Priorities, which will specify (i) the substances which should be prioritized in assessing whether they are toxic or capable of becoming toxic and (ii) the activities or initiatives related to the assessment, control and management of the risks posed by such prioritized substances to the environment or human health.
- The Minister of the Environment will be responsible for compiling a "Watch List" of substances that are capable of becoming toxic or that have been determined to be capable of becoming toxic in certain situations, which could include increased or prolonged exposure.
- The current provisions that require virtual elimination of toxic substances that are persistent and bioaccumulative will be repealed and replaced with a new regime that remains risk-based. The Bill provides that when regulating toxic substances with the highest risk, priority will be given to prohibiting certain activities involving them or their release into the environment. Regulations will set out the criteria for substances to be categorized as "highest risk" based on their properties or characteristics.
- Under the proposed amendments, the Minister of the Environment's regulatory powers under CEPA will extend beyond substances, to "products that contain a substance or that may release a substance into the environment."
- Bill C-28 would allow any person to request the Ministers to assess a substance to determine whether it is toxic or capable of becoming toxic. The Ministers will be required to respond within 90 days indicating how they intend to deal with the request.
CONSIDERING VULNERABLE POPULATIONS AND CUMULATIVE EFFECTS
- When completing an assessment to determine whether a substance is toxic or capable of becoming toxic, the Ministers must consider whether there is a vulnerable population in relation to the substance. Bill C-28 defines "vulnerable population" 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."
- When determining whether a substance is toxic or capable of becoming toxic, the Ministers must also consider the cumulative effects that result from exposure to the substance in combination with exposure to other substances. This is a departure from the current approach of assessing substances in isolation and a recognition that toxicity risk can also arise due to exposure to multiple substances from many different sources over the same time frame.
AMENDING THE FOOD AND DRUGS ACT (FDA)
- Bill C-28 proposes to amend the FDA to incorporate the regulation of environmental risks associated with foods, drugs, cosmetics and devices in addition to the assessment of the safety, efficacy and quality of drugs. This is anticipated to result in a more streamlined and strengthened environmental risk assessment process as well as better risk management of drugs.
In concert with Bill C-28, the federal government has indicated it will be introducing mandatory labelling requirements on consumer products to ensure the public better understands the chemicals included in the products they purchase and use. The federal government has also indicated it will be updating its existing framework for the assessment of risks posed by new organisms and biotechnology.
Bill C-28 was introduced in the House of Commons and received first reading on April 13, 2021. Before Bill C-28 becomes legislation, it must go through a considerable amount of debate and review in both the House of Commons and the Senate. During the course of that debate and review, it is entirely possible that Bill C-28 will be amended and its focus revised. Although an updated CEPA appears to be in our future, it remains unclear when it will be implemented or what it will finally contain. Stay tuned!
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