76(2) Focus on Law Reform Campaigns

CELA Bulletin

76:2  29-January-2010

Periodic E-News from the Canadian Environmental Law Association

As we enter our 40th year at CELA, 32 of those years as an Ontario Legal Aid clinic,
this Bulletin looks back at 2009, some highlights of the "00" decade, and looks ahead to 2010

In this issue, 76(2): Focus on Law Reform Campaigns
See also: Issues 76:1 Innovative Partnerships and 76:3 Casework Highlights

1. Access to Justice
  • Environment Health, Equity and the Law: Making the Links
  • Ontario Needs an Anti-SLAPP law
2. Water Quality and Quantity
  • Ten Years On, Walkerton's Legacy: Ontario's multi-year effort to establish a multi-barrier system
  • Protecting the Great Lakes
3. Pesticides, Toxic Substances, Consumer Products
  • Banning Cosmetic Use of Pesticides; DOW's NAFTA Challenge
  • Taking Action: Support Bans on Cosmetic Use of Pesticides Across Canada
  • Reform of Federal Pesticide Legislation
  • Taking Action: Ban Asbestos NOW
  • Ontario's Toxics Reduction Act
  • Toronto Leads the Way with Environmental Disclosure By-law
  • The Federal Chemicals Management Plan: Regulating the Status Quo?
  • Whither Product Safety?; After Ten+ Years, Still No Recall Powers, Minimal Progress in Stalled Bill
  • Taking Action: Regulating Mercury in Products
4. Energy; No Nukes for Ontario; Federal Nuke Fixes Needed; and Tritium in Drinking Water
  • Ontario's Green Energy Act; With Priority to Green Energy and Renewables, There's No Need for Nukes
  • Federal Nuke Fixes Needed: Flawed Mandate at Canadian Nuclear Safety Commission and Revising the Nuclear Liability Act
  • Lowering the Standard for Tritium in Drinking Water - We're Still Waiting

1. Access to Justice

Environmental Health, Equity and the Law: Making the Links
In keeping with CELA's legal aid mandate, we enter the second year of an exciting Law Foundation-funded project. Working in partnership with the Environmental Health Institute of Canada, Making the Links  is connecting environmental justice and environmental health issues, including occupational health issues, in six communities across Ontario. It arises from a recognition that low income communities experience multiple burdens that often include higher pollution levels and greater health and environmental impacts than occur in higher-income communities. Unfortunately, such communities are often most likely to lack the legal and health information and services necessary to address their exposures and health outcomes. In facilitating connections among health and legal service providers and the community, the project is building capacity, strengthening relationships and facilitating local action to reduce pollution.
For more information: Kaitlyn Mitchell, Counsel 416-960-2284 ext. 212 kaitlyn@cela.ca

Ontario needs an anti-SLAPP law
Strategic lawsuits against public participation (SLAPPs) are a growing threat to meaningful citizen participation in the lawful exercise of their political rights to engage in public debate and dialogue on matters of the public interest. CELA works with other environmental groups to advocate for anti-SLAPP legislation in Ontario that should protect all forms of public participation aimed at procuring government action. It should provide immunity from civil liability for persons engaging in public participation and provide for early review and an expeditious process for dismissing actions which are deemed to be a SLAPP. Further, such a law should reverse the onus on the initiator of the lawsuit to show that the action of the defendant was not directed at public participation and it should provide for strong and effective incentives, financial and otherwise, to dissuade potential SLAPP plaintiffs from initiating meritless lawsuits. (on-line collection about Environmental Justice and Equity)
For more information: Ramani Nadarajah, Counsel 416-960-2284 ext. 217

2. Water Quality and Quantity

Ten Years On, Walkerton's Legacy: Ontario's multi-year effort to establish a multi-barrier system
CELA represented the Concerned Walkerton Citizens at Justice O'Connor's comprehensive inquiry held in 2000-01. The resulting two-volume report included recommendations that have set a water policy reform agenda for Ontario that continues to be implemented. Relatively swift actions resulted in the establishment of the Ontario Clean Water Agency, the Ontario Drinking Water Advisory Council, passage of the Safe Drinking Water Act, the Nutrient Management Act and updates to related regulations, among other changes. The more challenging work came with responding to Justice O'Connor's recommendations for developing watershed-based source protection plans. In 2005, Ontario passed the Clean Water Act, creating a bottom-up initiative for the creation of source protection plans with the multi-stakeholder involvement of citizens, industry, farmers, local governments and conservation authorities. Through the Water Guardians Network, CELA continues to support the work of nineteen local source protection efforts across Ontario, running workshops and other educational events and web-posting of maps, fact sheets, reports and other useful resources.

Protecting the Great Lakes
Great Lakes protection has been a central part of CELA's work for over three decades. We work on multiple issues affecting the basin including chemical contaminants, air pollution and climate change, protection of biodiversity, drinking water source protection, and water conservation, including the prevention of water bulk diversions. We focus our efforts on three related agreements:
  • the Great Lakes Water Quality Agreement (GLWQA) between the US and Canada, addressing toxic substances, clean-up and ecosystem protection;
  • the Canada-Ontario Agreement (COA) addressing domestic implementation of GLWQA matters in Ontario; and
  • the Annex to the Great Lakes Charter of 1985, renamed in 2005 as the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement, that, among other provisions, bans bulk water diversions from the basin.
Through PollutionWatch reports and other analyses of the GLWQA,  CELA has a wealth of experience to direct to the renegotiation of the GLWQA planned for this year. We will be insisting that the agreement retain, and indeed build upon, its groundbreaking approach to the concepts of virtual elimination and zero discharge of persistent toxic substances. We will also seek resource commitments from the federal government comparable to those made in the US for progressive Great Lakes programs. In preparation for the GLWQA review, CELA is working with citizens, environmental and health groups basin-wide to develop Guiding Principles for renewing the GLWQA that can include the dynamic principles of green chemistry and substitution of toxic substances with inherently safe alternatives. Yesterday, CELA joined other Great Lakes public interest organizations in expressing dismay at the renegotiation process and sought a more robust consultation process (see Jan 28/10 media release and letter to negotiators).

During 2009, CELA published a comprehensive report on toxic substances in the Great Lakes prepared in partnership with the Lowell Center for Sustainable Production at the University of Massachusetts, Lowell (view Sept 29/09 media release, Executive Summary, Full Report). Although it addresses chemical contaminants in the Great Lakes, this report and its recommendations are broadly applicable to the entire chemicals management regime, in both the US and Canada. It lays out the progressive actions necessary to support and require substitution of toxic chemicals with inherently safer alternatives.

To address water quantity and conservation issues, and to develop Ontario's implementation plan for the Great Lakes -St. Lawrence River Basin Sustainable Water Resources Agreement, last summer the Ontario government consulted on a proposed strategy for water conservation and efficiency. CELA generally supported this proposal but made detailed recommendations in response that also built upon the work of multiple academics and public interest organizations who developed: H2Ontario - A Blueprint for a Comprehensive Water Conservation and Efficiency Strategy.  CELA continues to encourage Ontario to prevent future ecological harm from large water transfers from one Great Lake watershed to another as a regime is established for implementing this Agreement.

For more information: Theresa McClenaghan, Executive Director and Counsel 416-662-8341
Fe de Leon, Senior Researcher, 416-960-2284 ext. 223
Sarah Miller, Water Policy Researcher, 416-960-2284 ext. 213
CELA's On-line Collections:
Great Lakes Water Quality Agreement
Water Quantity - The Great Lakes - St. Lawrence River Basin Sustainable Water Resources Agreement
PollutionWatch - Great Lakes Reporting

Source Water Protection

3. Pesticides, Toxic Substances and Consumer Products

Banning Cosmetic Use of Pesticides; DOW's NAFTA challenge
In March we celebrated Ontario's province-wide ban on the use and sale of cosmetic pesticides - the strongest law of its kind in North America. The decade saw a steady increase in municipal bylaws following the Supreme Court of Canada decision of June, 2001 on the Hudson, Quebec bylaw. Other provinces, and some municipalities across Canada, followed suit during 2009 with various proposed laws but industry pressure for loopholes continues. Filmmaker Paul Tukey produced A Chemical Reaction about the Hudson story, which premiered in Montreal last fall. A screening is planned for Ottawa on March 11, 2010. CELA's Executive Director, Theresa McClenaghan will speak about Canadian efforts to ban the cosmetic use of pesticides in Cleveland, Ohio in April at Greening the Community, the 28th NationalPesticide Forum. (on-line collection: Banning Cosmetic Pesticide Use in Ontario)
Meanwhile, we await the next stage in the long  process of DOW Chemical's challenge to the Quebec Pesticide Code.

Taking Action: Support Bans on Cosmetic Use of Pesticides Across Canada
Citizens Groups, Environmental, Public Health and Medical Organizations across the country continue to advocate for municipal or provincial bans on cosmetic pesticide use. Provincial chapters of the Canadian Cancer Society, the Canadian Association of Physicians for the Environment, and the David Suzuki Foundation are playing key leadership roles. Everyone benefits when these bans are enacted.
CELA urges you to support these efforts.
In Newfoundland, write to Environment Minister Charlene Johnston <charlenejohnson@gov.nl.ca> or your local MLA
In Nova Scotia, currently considering a ban, send your message of support to: policy@gov.ns.ca
In British Columbia, currently consulting on a ban, respond to the consultation (deadline is Feb. 15/10).

Reform of Federal Pesticide Legislation
CELA's long history with federal pesticide law reform began with our former executive director Toby Vigod's participation in the Pesticide Registration Review in the early 1990s. Another ten years would pass, and multiple scathing reports (Commons Committee, CELA, etc) about the need for reform, before the federal government finally introduced changes in 2002 to the Pest Control Products Act, many of which followed reforms implemented under US laws in 1996. The new PCPA contains welcome reforms, particularly requiring modernized risk assessment approaches and consideration of children's health. However, it was not proclaimed until mid-2006 and some elements remain outstanding, including clear policy direction on implementation of precaution under the law. Instead, the Pest Management Regulatory Agency relies upon direction from the Privy Council Office on application of precaution, an obtuse and vague documentCELA's critique, written during public consultations on this document, remains valid.
For more information:
Theresa McClenaghan, Executive Director and Counsel 416-662-8341 theresa@cela.ca
or Kathleen Cooper 416-960-2284 ext 221 kcooper@cela.ca 

Taking Action: Ban Asbestos NOW
ranks as one of Canada's lesser recognized issues of the last decade, well-documented by CBC's The National in Canada's Ugly Secret and doggedly covered by Martin Mittelstaedt at the Globe and Mail. Alongside Canada's foot-dragging on climate change, we nominate the continued mining of asbestos in Quebec, exclusively for export, as one of the worst examples of Canada embarrassing itself on the international stage. The Canadian position on the "safe" use of asbestos has absolutely no scientific or moral credibility. Write to your MP and tell him/her to Ban Asbestos Now (on-line collection).
For more information:
Fe de Leon, Senior Researcher, 416-960-2284 ext. 223 deleonf@cela.ca

Ontario's Toxics Reduction Act
In response to a 2007 Liberal election promise to introduce a toxics reduction law for Ontario, in 2008 CELA conducted detailed research and prepared a model law for the McGuinty government (2008 report). CELA followed the successful model of the Massachusetts Toxics Use Reduction Act. For the campaign in support of this legislation CELA worked with the Take Charge on Toxics coalition, including health protection, labour and environmental advocates to promote toxic reduction benefits for cancer and occupational disease prevention. While there is more to be done, we celebrate this new law and approach to toxics reduction in Ontario. As of this month, specified facilities must begin to track and report emissions on a list of 47 substances, both to the public and to the Ontario government. (Dec 4/09 media release, on-line collection).
For more information:
Theresa McClenaghan, Executive Director 416-960-2284 ext 219
Joe Castrilli, Counsel, 46-960-2284, ext. 218

Toronto Leads the Way with Environmental Disclosure By-law
CELA has participated on the Occupational and Environmental Working Group of the Toronto Cancer Prevention Coalition since its inception. After more than six years, in December of 2008 this group celebrated its successful community right-to-know campaign on reporting of the use of toxic substances in Toronto. The resulting by-law on Environmental Reporting and Disclosure and ChemTRAC program will require small and medium sized businesses to track and report on their use and discharge of toxic substances for the first time in Canada.
For more information:
Sarah Miller. Senior Researcher 414-960-2284 ext 213 millers@lao.on.ca

The Federal Chemicals Management Plan: Regulating the Status Quo?
Throughout 2009, the federal government continued to implement the Chemicals Management Plan (CMP) with the periodic release for consultation of toxicity assessment documents and related risk management strategies on multiple batches of chemicals. These batches derive from a list of 200 chemicals assigned high priority attention at the conclusion of a multi-year exercise of categorizing the 23,000 substances on the Domestic Substances List (DSL). CELA was closely involved in the categorization effort and continues to work with other environmental and health groups to comment on the CMP proposals (on-line collection). We have urged much stronger regulatory action than the government has proposed thus far to phase down and phase out toxic chemicals that are persistent, bioaccumulative or that can cause cancer, reproductive or developmental harm. Instead of taking aggressive action, CELA is concerned that many actions taken under the CMP are relying on future notification processes or establishing maximum concentration levels for environmental releases (instead of clear phase-outs) and using non-regulatory tools, for example in actions to address toxic substances in cosmetics. Further, CELA along with other groups are urging strong federal action and increased industry accountability on an additional 2600 chemicals (considered medium priority via the DSL categorization exercise).  The groups continue to wait for the  government's proposals to address these chemicals. 
For more information:
Fe de Leon, Senior Researcher 416-960-2284 ext 223 deleonf@cela.ca

Whither Product Safety?; After Ten+ Years, Still No Recall Powers, Minimal Progress in Stalled Bill
In addition to marking the ten year anniversary of the Walkerton water tragedy, this May also marks ten years since CELA and the Ontario College of Family Physicians released a report on children's environmental health that launched much of CELA's work on this topic. That report devoted considerable attention to Canada's antiquated product safety law and regulations (Chapter 7 and Lead Case Study). Alas, little has changed. Despite two bills before Parliament containing useful but modest reforms, the most recent (C-6) going through Commons and Senate committee hearings, the bill died when Parliament prorogued. The federal government still has no legal powers to recall unsafe products and the Hazardous Products Act remains nearly 50 years old. It comes as no surprise that Health Canada continues to have to issue warnings (the latest on Jan 15/10, with no strength of law behind them) about toxic substances in products available to children. 

CELA had urged the federal government to take the opportunity of reforming this law by applying a suite of progressive measures, and at the very least, bans on the use of toxic substances in consumer products and far greater disclosure requirements on product labels when these substances are used. Part of this advocacy was to seek requirements for Extended Producer Responsibility, in keeping with the analysis CELA provided in 2007 for the European Commission - a comparative review of Canadian and European environmental laws. Current consultation by the Province of Ontario on revising the Waste Diversion Act offers further opportunity to apply a more progressive approach. CELA's is participating in a collaborative response which will be web-posted on Feb 1/10, the deadline on the consultation.

Some federal regulatory actions on product safety were proposed during 2009. These included lead, phthalates, and bisphenol A in children's products. While welcome, these proposed regulations serve to enshrine in law little more than the status quo. They either follow regulatory actions taken in the US or Europe or disallow practices that have already largely been discontinued. Nor do they adequately address key exposure sources. For example, for bisphenol A, increasing scientific evidence points to fetal exposure as the time of greatest vulnerability underscoring the need to eliminate sources to which pregnant women and women of child-bearing age are exposed such as in all food and beverage containers and insidious sources such as cash register receipts. The same charge of regulating the status quo can be levied at the federal government's approach to the highly toxic flame retardant chemicals, PBDEs. Initial proposals to regulate, announced in 2006 would ultimately ban in 2008 those PBDEs that had been phased out of production in 2004. Only after several environmental groups, including CELA, filed a Notice of Objection about the inadequate scientific rationale for not banning all PBDEs did the federal government reconsider the evidence. In 2009, after concerns about these chemicals had been raised for nearly ten years, the federal government proposed regulatory action to follow the lead of the European Union and ban deca-BDE in electronics. Again, a welcome move, but like the proposals for lead, phthalates and bisphenol A, the PBDE regulations have yet to be finalized. At present, Canadians are left with the illusion of product safety reform but very few actual regulations to show for it. (PBDEs, on-line collection, Product Safety, on-line collection)
For more information:
Product Safety: Kathleen Cooper, Senior Researcher, 416-960-2284 ext. 221 kcooper@cela.ca
EPR and waste reduction: Theresa McClenaghan, Executive Director, 416-960-2284, ext 219
Richard Lindgren, Counsel, 613-385-1686

Taking Action: Regulating Mercury in Consumer Products
In March, CELA and Pollution Probe assisted with the Canadian release of a report on mercury in fish from an international coalition (Feb 10/09 media release, report). Documenting the world-wide health threat from mercury contamination of fish, the report was released in time for a UN meeting to discuss a global treaty, a move the Canadian government supports. Among its recommendations, the report calls for all countries to establish domestic regulations. Although the federal government has committed to banning the non-essential uses of mercury in consumer products, a regulation has yet to be drafted. Pollution Probe and other members of the Canadian Partnership for Children's Health and Environment, including CELA, will be at the upcoming National Home Show, Feb 19-28 at the Direct Energy Centre in Toronto. We will focus on providing information about managing mercury in the home to avoid personal exposure and to prevent mercury releases to the atmosphere. Alongside such necessary public education, Canada needs to move on this regulation.
For more information:
Kathleen Cooper, Senior Researcher, 416-960-2284 ext 221 kcooper@cela.ca
Rebecca Spring, Senior Project Manager, Consumer Engagement & Market Transformation, Pollution Probe
416-926-1907 ext 238, rspring@pollutionprobe.org

4. Energy; No Nukes for Ontario; Federal Nuke Fixes Needed; and Tritium in Drinking Water
Ontario's Green Energy Act; With Priority to Green Energy and Renewables, There's No Need for Nukes
Ontario's new  Green Energy and Green Economy Act, 2009 is intended to promote energy conservation/efficiency; create “green” employment/investment; and facilitate the development of projects using renewable energy sources such as water, solar, wind, biomass, biogas, etc. (view CELA fact sheet). The province describes the expansion of clean and renewable sources of energy as a cornerstone of Ontario's future prosperity, confirming what CELA and the Pembina Institute found in our Power for the Future analysis, prepared in 2004 (May 11/04 media release, report). In this light, CELA and other environmental and safe energy groups urged Premier McGuinty to heed his own law and avoid any further investment in nuclear power (view June 3/09 media release and backgrounder), a move CELA strongly supported when the Minister of Energy and Infrastructure announced in late June that the Province  would defer selection of a builder for a new nuclear plant in Ontario. (on-line collections: Energy Conservation and Renewables; Nuclear Phase-Out)
For more information:
Theresa McClenaghan, Executive Director and Counsel 416-662-8341 theresa@cela.ca

Federal Nuke Fixes Needed: Flawed Mandate at Canadian Nuclear Safety Commission and Revising the Nuclear Liability Act
Last June, CELA supported the Tritium Awareness Project summary of many ongoing problems with radiation protection in Canada stemming from multiple flaws in the mandate and oversight of the Canadian Nuclear Safety Commission - CNSC). We remain in support of the TAP recommendations to eliminate all ties between the CNSC and the federal Ministry of Natural Resources to ensure independence of the regulatory agency and for the agency to be supported by health professionals with no links to the nuclear industry or to agencies promoting nuclear power. In November, CELA responded to consultations on Bill C-20, the Nuclear Liability and Compensation Act, calling for all parties to support amendments to improve the bill. CELA has long held that this law should be amended to remove the cap on liability, to remove the exemption from liability accorded to third parties, and to increase substantially the resources available, by way of minimum insurance and pooled resources and other mechanisms, to better internalize to nuclear plant operations the potential costs of severe accidents which escape containment. (more details). (on-line collection: Nuclear Phase-Out)
For more information:
Theresa McClenaghan, Executive Director and Counsel 416-662-8341 theresa@cela.ca

Lowering the Standard for Tritium in Drinking Water - We're Still Waiting
In June of 2009, CELA echoed calls from multiple experts, including the Ontario Drinking Water Advisory Council and Toronto's Medical Officer of Health, to dramatically lower the standard for tritium in drinking water to be more health-protective. We are still waiting for Ontario to place the ODWAC recommendation into a revised drinking water standard for public review and comment.
For more information:
Theresa McClenaghan, Executive Director and Counsel 416-662-8341 theresa@cela.ca
Sarah Miller, Water Policy Researcher 416-960-2284 ext. 213

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