Canada's main environmental law isn't working

Originally published in The Toronto Star, July 29, 2016

Emissions of some of the most harmful chemicals are on the rise in Canada. We need to update the federal law that’s supposed to curb them.

For the first time in a decade a committee of Parliament is examining how the nation’s primary environmental law, the Canadian Environmental Protection Act (CEPA), is working. What we are learning about CEPA is not good news.

Despite Ottawa’s heavy financial investment over the first decade and a half of the 21st century in the screening, assessment, and management of existing chemicals in Canadian industry and commerce, aggregate emissions for the most harmful of them are rising. These include substances that cause cancer, reproductive and developmental problems, or are persistent (breakdown slowly in the environment), bioaccumulative (easily accumulate in organisms), or toxic. In short, these are the very substances the federal government has determined are the ones it wishes to control or prohibit under CEPA, when other federal or provincial measures are not adequate.

By any benchmark, increases in emissions for substances like lead (up 125 per cent between 2006 and 2012), arsenic, or cadmium (up almost 85 per cent and 900 per cent, respectively, during the same period) are indicative of regulatory failure, not success.

Moreover, we are not doing well when compared to our neighbours to the south when it comes to controlling releases of toxic substances common to both countries. For example, New Jersey is a jurisdiction some members of the chemical industry argue Ontario should be compared to because of a similar manufacturing and industrial-based economy. We agree. However, the comparison underscores what’s wrong with Canadian laws. In 2013, Ontario released to air known or suspected carcinogens common to both Canada and the United States at a rate 18 times higher than New Jersey.

Furthermore, there is a disturbing but not surprising correlation between attempts to engage in soft regulation (use of measures that are not legally binding) for certain industrial chemicals or sectors and the resulting soaring levels of releases of substances to the environment. Take cadmium, for example, and its 900-per-cent increase in Canada between 2006 and 2012. Despite cadmium being regarded as carcinogenic and posing reproductive and developmental problems, as well as exhibiting persistent, bioaccumulative, and toxic characteristics, the approach of the federal government to controlling this substance consists of applying unenforceable guidelines, voluntary codes of practice, and self-regulating pollution prevention plans.

Similarly, Ontario’s policy of granting exemptions to companies, if not whole industrial sectors, from the requirements of the province’s primary air pollution control regulation may, not surprisingly, explain why Ontario had the fourth-highest level of releases to air of carcinogens out of 60 state and provincial jurisdictions in Canada and the United States in 2012.

So whether we compare our record to other jurisdictions or just look at our own domestic situation, the picture is grim.

What should Canadians demand in the face of this failure? We suggest as a start:

1. A federal law that is drafted with the recognition that releases of toxic substances are increasing, not decreasing, and reformed to reverse that trend by preventing pollution, protecting vulnerable populations, promoting safer, including non-chemical, alternatives, and enhancing the role of the public in the process; and

2. A provincial air pollution control regime that reverses the trend in making exemptions to its application the rule, rather than the exception.

Our environmental laws need to be robust if they are to be a true last line of defence in protecting public health and the environment from exposure to toxic substances.