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Control of Toxic Substances at the Crossroads in Canada

In upholding the constitutionality of federal toxic substances law over 20 years ago, the Supreme Court of Canada reaffirmed that protection of the environment is one of the major challenges of our time.

Indeed, control of toxic substances has been at the forefront of federal environmental law in Canada since the 1970s and the legislation, the Canadian Environmental Protection Act (CEPA), has been drafted to give the government broad authority to act. However, the wide discretion that comes with that authority has often stymied progress toward reducing or eliminating exposures to substances capable of causing cancer and other adverse effects, such as endocrine disruption. That is because while protection of human health and the environment has been the explicit goal of CEPA, the implicit reality under which the law also has laboured is the perceived need to not interfere with commercial and business interests that manufacture, import, and use toxic substances.

This explains the remarkable resistance of governments over the past 25 years to overdue reform of CEPA. “Better living through chemistry” has quite simply trumped “look before you leap”. In the mid-1990s, and again in the mid-2000s, governments of the day inexplicably rejected numerous sensible recommendations by parliamentary committees examining the law to: (1) improve screening of existing and new substances and examine less toxic or non-chemical alternatives; (2) provide greater access to information about releases of toxic substances to the environment and the existence and concentrations of toxic substances in consumer products; and (3) enhance the role of the public in environmental enforcement. It now looks like in the mid-to-late 2010s, the federal government may be procrastinating on needed reforms once again.

In late June 2018, the federal government released its response to 87 recommendations on reform of CEPA made by a parliamentary committee in June 2017. Those parliamentary committee recommendations followed 9-months of committee hearings going back to early 2016 during which witness after witness, apart from those from industry, urged bringing the law controlling toxic substances into the 21st century. Considering that CEPA has quite literally not been substantively amended since the end of the 20th century the request is not unreasonable.

But whether the request will fall on deaf federal ears is a live question. While the government agreed with many committee recommendations made in the 2017 parliamentary committee report the government response also made it clear that we are a long way from seeing actual amendments to the Act because they will not appear until “future parliamentary sessions” or until an on-going government review examining how chemicals will be managed post-2020 is completed. Moreover, the response also proposed further study of certain committee recommendations on issues, such as substitution for chemicals of high concern, which have already been the subject of much review for years. To many, the between the lines meaning of the “commitment” to amend CEPA read more like “the matter will be considered after the next election”.

Harm to the environment and human health from exposure to toxic substances does not occur on the basis of election cycles. Government quasi-commitments to study the matter anew, when it already has been studied in depth, does not inspire confidence that the government has understood the public’s message. Ironically, the very first committee recommendation the government responded to positively was a proposed amendment, originally floated by the government itself, which would delay the next parliamentary review of the law for a decade. Such leisurely paced and infrequent review of the law can undermine the need to confront swiftly, emerging environmental insults from chemicals.

Canada can do better. We can subject existing and new substances to more stringent tests, demand better data, and impose robust requirements for considering alternatives without endangering our economy. European law has been demonstrating that for over a decade.

Canada can better integrate the public into the process of enforcement of toxics law by recognizing the public’s right to a healthy environment without fearing that this will open the courts to a floodgates of litigation. American state law, like that in Michigan, has demonstrated that for decades.

When the latest NPRI shows that between 2013 and 2016 there was a 40 percent increase in on-site air emissions of lead, a well-known neurotoxin, from facilities across Canada, the federal government can do better than to reject amending CEPA to require legally binding and enforceable national air quality standards, as it did in its response to the recommendations of the parliamentary committee.

Women, children, the elderly, indigenous peoples, the poor, workers, and those with pre-existing medical conditions, among others, are all populations vulnerable to exposure to toxic substances encountered in the environment. They need better protection than CEPA currently provides, and they need it sooner than some indeterminate time after the next election. Failure to act in a timely manner and with robust law reforms will have implications for the environment and the health of Canadians for generations to come.