Bill S-5: An Act to amend the Canadian Environmental Protection Act, 1999, etc.
February 10, 2023
To all ENVI committee members:
Bill S-5: An Act to amend the Canadian Environmental Protection Act, 1999, etc.
Just Earth is an environmental NGO, based in Toronto, a member of Climate Action Network. We seek serious work towards adequate action on climate change–evidence-based targets and accountability—and a healthy environment for all.
Senators, Canadians are looking to you to protect women’s health. We are apprised of the issues which have received extensive coverage, including this very disturbing article in the National Observer. We understand from the Canadian Environmental Law Association that changes and amendments that they have been advocating have not yet resulted in substantial changes to Bill S-5.
In your responsibility to all Canadians, but in particular to young women, we request that you adopt those recommendations; namely,
- make pollution prevention mandatory for all chemicals Canada has designated as toxic under the law;
- enshrine analysis of safer alternatives to chemicals as a central pillar of CEPA;
- impose mandatory chemical testing obligations on the private sector where information is not available to determine if a substance is toxic or capable of becoming toxic;
- retain certain measures Bill S-5 would repeal (such as virtual elimination of authority and designation of substances as toxic to protect CEPA’s authority to address such substances under the criminal law power of the Constitution); and
- provide a clear right to, and effective remedy for, a healthy environment, among other measures.“
We note that Just Earth’s submission to your committee in May 2022 (attached) echoes CELA’s 5th recommendation: the right to a healthy environment. If your review of Bill S-5 ends without instituting this guarantee, we respectfully request a response from you as to why it was impossible. Thank you in advance.
Joyce Hall, Lynn McDonald, Rose Dyson, Dorothy Goldin-Rosenberg, Rita Bijons on behalf of Just Earth
- Fe de Leon
Just Earth
Brief to the Senate Energy Environment and Natural Resources Committee on Bill S-5,
The Canadian Environmental Protection Act
May 19, 2022
Introduction and Summary:
Just Earth is pleased to see that a revamp of CEPA is taking place in the form of Bill S-5. Environmental Defence and other environmental NGOs have been calling for this for several years now.
According to 2019 UNEP report, the World Health Organization estimated the burden of disease from selected chemicals at 1.6 million lives in 2016. (1) We suspect this is a gross underestimate due to a lack of data that would show the real burden of disease. Chemical pollution also threatens a range of ecosystem services.
We consider CEPA a key health and safety, as well as environmental protection, law. Today Canadians in their everyday activities encounter a world saturated with toxins to the extent that they cannot navigate around them–from BPA and BPS in bottles and on cashier receipts, to the “dirty dozen” found in makeup.
The pervasive presence of dangerous, untested chemicals has the effect de facto of making consumers responsible, in order to protect their own health, to read ingredients and familiarize themselves with the profiles of chemicals with long names, an expectation particularly unrealistic for the most vulnerable. The exposure to toxins of citizens who take for granted that unsafe products are banned by a government responsible for protecting them fails to meet the most basic principles of environmental justice.
A thorough revamp of CEPA according to the latest science and available models from other jurisdictions around the world has the capacity to rectify this situation, address the wider environmental context and make Canada the safe country that citizens expect.
We have read the proposed amendments to Bill S-5 of the Canadian Environmental Law Association and agree with their appraisals and recommendations. We would like to bring attention specifically to two general issues in the Bill: toxic chemicals in products, in the air, water and on land, and the right to a healthy environment.
Recommendations:
Toxic chemicals:
As a fundamental change, CEPA needs to impose mandatory chemical testing obligations on the private sector where it is not known whether a substance is toxic or capable of becoming toxic so that, if toxic, the chemical can be replaced and/or banned.
We point to the approach in the EU’s “Reach” regulation summarized as “No data, no market” which places responsibility on industry to assess and manage the risks from chemicals and to provide safety information on substances.
In addition, for chemicals legally designated as toxic, pollution prevention and elimination are necessary. According to a review by CELA of practices in Ontario, Quebec and Alberta, cancer-causing agents are increasingly released to land instead of into the air. CEPA should specify a remedy.
Ontario’s on-site air emissions of suspected cancer-causing agents is 14 times greater than New Jersey (2). An amended CEPA should provide citizens with an environment that ensures them the highest standards of safety. To accomplish this, the Ministerial power to require companies to prevent pollution which is currently discretionary should be an obligation.
Scientists have developed a process called alternatives assessment “to identify, compare, and select safer options to chemicals of concern, with a primary goal of reducing harm to human health and the environment” (3). We recommend that CEPA enshrine analysis of safer alternatives to harmful chemicals as a central pillar of CEPA to fully take advantage of this science.
Certain measures Bill S-5 would repeal (such as virtual elimination authority and designation of substances as toxic to protect CEPA’s authority to address such substances under the criminal law power of the Constitution) should be retained.
The right to a healthy environment.
First, we suggest removal of this clause from the Bill: “…which right may be balanced with relevant factors, including social, economic, health and scientific factors.” It makes no sense to “balance” the right to a healthy environment by “health factors” or any other factors.
Secondly, provide sections to the Bill outlining remedies a citizen or citizen group may avail themselves of to ensure Canadians have a true, actionable right to a healthy environment. Precedents exist which have been provided over the years by House and Senate committee reports, CELA’s 2018 proposed amendments, and by the Global Pact for the Environment now being finalized by the United Nations.
If Canadians are to be encouraged to take active part in protecting their environment, there must be clarity in how to do so.
In summary, CEPA must provide a civil remedy for a citizen or citizen group to prosecute in case of sustaining an environmental risk…and once a plaintiff had presented a prima facie case demonstrating that the defendant had caused an environmental risk, the onus would be placed on the defendant to disprove causation of injury to the plaintiff.
Canada must do much better than the current version of Bill S-5 on the right to a healthy environment. Otherwise, that “right” is moot because of obstacles to its use which will necessitate resolution in the next review of CEPA and delay environmental justice for Canadians.
References
(1) Global Chemicals Outlook II: From Legacies to Innovative Solutions. UN Environmental Programme, 2019.