Canadian Environmental Protection Act, 1999

The Canadian Environmental Protection Act, 1999 (CEPA, 1999; French: Loi canadienne sur la protection de l'environnement (1999)) is an act of the 36th Parliament of Canada, whose goal is to contribute to sustainable development through pollution prevention and to protect the environment, human life and health from the risks associated with toxic substances. It covers a diversity of activities that can affect human health and the environment, and acts to address any pollution issues not covered by other federal laws. As such, the act is a "catch all" piece of legislation that ensures potentially toxic substances are not inadvertently exempt from federal oversight as a result of unforeseen legislative loopholes.

Canadian Environmental Protection Act, 1999
Parliament of Canada
  • An Act Respecting Pollution Prevention and the Protection of the Environment and Human Health in Order to Contribute to Sustainable Development
CitationS.C. 1999, c. 33
Enacted byParliament of Canada
Assented toSeptember 14, 1999
CommencedMarch 31, 2000
Legislative history
Bill citationBill C-32
Introduced byChristine Stewart, Minister of the Environment
First readingMarch 12, 1998
Second readingApril 28, 1998
Third readingJune 1, 1999
First readingJune 2, 1999
Second readingJune 8, 1999
Third readingSeptember 13, 1999
Repeals
Canadian Environmental Protection Act (c. 16, R.S.C. 1985 (4th Supp.))
Summary
Legislative summary

The act also recognizes the contribution of pollution prevention and the management and control of toxic substances and hazardous waste to reducing threats to Canada's ecosystems and biological diversity.

It acknowledges, for the first time, the need to virtually eliminate the most persistent toxic substances that remain in the environment for extended periods of time before breaking down and bioaccumulative toxic substances that accumulate within living organisms.

Two federal ministries, Health Canada and Environment and Climate Change Canada as they were known in 2022, work in partnership to assess potentially toxic substances and to develop regulations to control toxic substances.

Section 93 of the act provides the authority to the federal government to make regulations to restrict and manage the Canadian List of Toxic Substances (LOTS).[1] Toxic substances have characteristics outlined in Section 64.[2] Once a regulation is proposed, interested parties have 60 days to provide comments on the proposed instrument or may file a notice of objection requesting that a board of review be established.[2]

History

The act was originally enacted in 1988 and was designed to provide a systematic approach to assess and manage chemical substances in the environment that were not addressed under existing programs.

In 1990 with SOR/90-583: Ozone-depleting Substances Regulations No. 2 (certain bromofluorocarbons) were added to the LOTS.[3]

In 1997 the Supreme Court of Canada adjudicated the case of R. v. Hydro-Québec, by which an attempt was made to enforce the CEPA in the matter of poly-chlorinated biphenyls as a large quantity of said substances had been dumped into a stream by the respondent. Justices Gérard La Forest, Claire L'Heureux-Dubé, Charles Gonthier, Peter Cory and Beverley McLachlin held that "the environment is not, as such, a subject matter of legislation under the Constitution Act, 1867. Rather, it is a diffuse subject that cuts across many different areas of constitutional responsibility, some federal, some provincial. If a provision relating to the environment in pith and substance falls within the parameters of any power assigned to the body that enacted the legislation, then it is constitutionally valid." The fines were upheld and the CEPA was deemed valid legislation under the criminal law power.[4]

After being reviewed in the 1990s, it was replaced by the current legislation that provides new powers for health and environmental protection. It was introduced by the 26th Canadian Ministry as Bill C-32 on March 12, 1998, subsequently receiving royal assent on September 14, 1999. The act came into force on March 31, 2000.

As a Canadian statute, the act is unique for including a declaration of "primary purpose" in addition to a preamble.[5]

On April 23, 2021, the LOTS was amended by regulation to include plastic manufactured items,[6] in advance of the June 20, 2022, regulation for the Canadian ban on single-use plastics (SUP),[7][8][9][10][11] which was introduced by the Minister of Environment and Climate Change Steven Guilbeault.[9] The SUP ban included such items as straws, takeout containers, grocery bags, cutlery, stir sticks and plastic rings.[12]

The act received ENVI committee attention in 2021 because of Volkswagen Dieselgate.[13]

As of July 2022, the act had received 13 amendments over its quarter-century existence.[14]

New and existing substances

Toxic substances

Toxic substances have characteristics outlined in Section 64 of the CEPA.[2] Once a regulation is proposed, interested parties have 60 days to provide comments on the proposed instrument or may file a notice of objection requesting that a Board of Review be established.[2]

A useful case study for process of addition to the list is discovered by the travels of microplastic beads:[15] The end of the public input process occurred on March 10, 2016;[16] they were added to the LOTS on June 29; on November 5 proposed regulations on their uses were put forth for public comment; on June 14, 2017, final regulations were published; and on July 1, 2018, the manufacture and import of all toiletries that contain plastic microbeads were prohibited.[15]

New substances

All new substances must be evaluated for human health and environmental risks before they can be manufactured or imported into Canada. Responsibility for these evaluations is shared between Environment Canada and Health Canada and is administered by the New Substances Program,[17] which administers regulations relating to the notification of new substances into the environment.[18][19]

Existing substances

Existing substances include all 23,000 substances that were in use in Canada prior to the establishment of the New Substances Notification Program, and they are all listed on the Domestic Substances List (DSL).[20] The act required systematic screening of these substances, a process that was completed in September 2006,[21] which led to the development of the Chemicals Management Plan.[22]

Biotechnology

The 23,000 existing substances on the DSL included 67 microbial strains and 2 complex microbial cultures.[23] These substances were subject to a separate prioritization assessment[24] and accordingly evaluated.[25][26]

Health Canada and Environment Canada share responsibility for conducting risk assessments of new biotechnology products (including micro-organisms) that are not subject to a pre-manufacture toxicity assessment under other federal legislation. Under the act, both naturally occurring and genetically modified organisms are evaluated under the New Substances Notification Regulations (Organisms).[27]

Risk assessment decisions are summarized and posted publicly.[28]

Amendments

Bill S-5

On May 30, 2023, the House of Commons passed Bill S-5, the first major update to CEPA since 1999. Viewed by the David Suzuki Foundation as "long overdue important progress",[29] Bill S-5 addresses some, but not all, of the 87 recommendations to strengthen CEPA made by a 2017 parliamentary review.

For the first time in Canadian history, the bill recognizes the right to a healthy environment.[30] The bill additionally highlights fracking and tailings ponds as particular areas of concern, granting the government more authority to request information on substances released from these processes. Moreover, Bill S-5 requires the offices of the Minister of Environment and the Minister of Health to compile a 'watch list' of substances which have either not been assessed yet, or are not in widespread use, but have the potential to be deemed 'toxic' and consequently subjected to potential regulation. [29]

Bill S-5 also adds various accountability mechanisms within CEPA that were previously lacking, such as the creation of a two-year windows in which a potential toxic chemical or substance must be assessed.[29]

Bill S-5 also amends CEPA to encourage "the development and timely incorporation" of substance testing methods alternative to those involving vertebrate animals. The government is also required to develop a plan, within two years, to 'encourage' and facilitate this transition. [31]

Bill S-5 received royal assent on June 13, 2023.[32]

Enforcement, penalties and prosecution

Enforcement activities related to the act can include:

  • warnings regarding the existence of a violation so that the alleged offender can act and return to compliance;
  • directions to deal with or to prevent illegal releases of regulated substances;
  • tickets for offences (e.g. failure to submit written reports);
  • various orders (e.g. prohibition orders, orders to recall illegal substances or products from the marketplace, environmental protection compliance orders to put an immediate stop to illegal activity) to prevent a violation from occurring or require action to be taken;
  • injunctions;
  • prosecution under the authority of a Crown prosecutor; and
  • environmental protection alternative measures. REHANT

Environmental Enforcement Act

Fines under the Environmental Enforcement Act (EEA) range from $5,000 to $6,000,000.[33] The EEA applies to offences under CEPA 1999. The EEA also allows the enforcement officers to arrest a person without warrant, to seize or detain items related to a CEPA 1999 offence or related evidence, and to detain or redirect ships suspected of an offence. Convictions or indictments under the EEA can also result in imprisonment up to three years. Prosecutions under CEPA 1999 are listed on Environment Canada's website.[34]

Selected regulations
  • Prohibition of Certain Toxic Substances Regulations[35]
  • Prohibition of Asbestos and Products Containing Asbestos Regulations[35]
  • Canadian Toys Regulation[35]
  • Health Canada Medical Device Licensing[35]
  • Canadian Phthalates Regulations (SOR/2016-188)[35]
  • Products Containing Mercury Regulations[35]

See also
  • "Canadian Environmental Protection Act, Official Website".
  • Enforcement and compliance under CEPA 1999

References
  1. "Canadian Environmental Protection Act, 1999 (S.C. 1999, c. 33, s. 93)".
  2. "What Does Toxic Mean under CEPA 1999?" (PDF). Environment Canada. April 2005.
  3. "Canada (96,462)". International Labor Organization. Retrieved July 8, 2022.
  4. "R. v. Hydro-Québec". The Supreme Court of Canada. September 18, 1997.
  5. Molot, Henry L.; Department of Justice Canada. "Clause 8 of Bill S-4: Amending the Interpretation Act". Retrieved April 19, 2016. A perhaps extreme example of this is the recently enacted Canadian Environmental Protection Act, which contains a 'declaration' of 'primary purpose', a preamble setting forth a long list of general goals and duties, and a provision that details the general 'administrative duties' of the Government of Canada in the administration of the Act.
  6. "Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999: SOR/2021-86". Canada Gazette. No. Part II: Vol. 155 (2021). May 12, 2021.
  7. "Canada Sets Dates To Ban Some Single-Use Plastics". Time. Associated Press. June 20, 2022.
  8. "Single-use Plastics Prohibition Regulations – Guidance for selecting alternatives". Government of Canada. July 7, 2022.
  9. "Government of Canada moving forward with banning harmful single-use plastics". Government of Canada. December 30, 2021.
  10. "Government of Canada bans many single-use plastics". Osler, Hoskin & Harcourt LLP. June 22, 2022.
  11. "Plan for the Ban: Canada Announces Timeline for Single-Use Plastics Prohibition". McMillan LLP. June 22, 2022.
  12. Rabson, Mia (June 20, 2022). "Government will ban some single-use plastics over the next 18 months". CBC. The Canadian Press.
  13. "Enforcement of the Canadian Environmental Protection Act". Parliament of Canada. House of Commons Canada. June 18, 2021.
  14. "Canadian Environmental Protection Act, 1999, SC 1999, c 33". Canadian Legal Information Institute. May 1, 2021.
  15. "Canada Moves to Classify Manufactured Plastics as Toxic Substance". Exponent. July 14, 2021.
  16. "Ottawa calls for public input on plastic microbead ban". Toronto Star Newspapers Ltd. Canadian Press. February 9, 2016.
  17. "New Substances Program". Government of Canada. April 29, 2022.
  18. "New Substances Notification Regulations (Chemicals and Polymers)".
  19. "New Substances Notification Regulations (Organisms)".
  20. "Domestic Substances List".
  21. "Categorization of Existing Substances".
  22. "Chemicals Management Plan".
  23. "List of Organisms on the Domestic Substances List (DSL)".
  24. "Prioritization of Micro-organisms on the Domestic Substances List prior to the Screening Assessment under paragraph 74(b) of CEPA 1999".
  25. "Framework for Science-Based Risk Assessment of Micro-Organisms Regulated under the Canadian Environmental Protection Act, 1999".
  26. For example, see the review of Pseudomonas aeruginosa strains ATCC 31480, 700370 and 700371 that summarizes the outcome of the complete screening assessment, completed in August 2010.
  27. "Guidance Documents".
  28. "Risk Assessment Decisions".
  29. "MPs pass first major update to Canada's most important environmental law in more than two decades". David Suzuki Foundation. Retrieved June 2, 2023.
  30. Johnson, Jordan (June 1, 2023). "Members of the Bundestag enshrine "the right to a healthy environment"". GiftIntime.ca. Retrieved June 2, 2023.
  31. "Government Bill (Senate) S-5 (44-1) - Third Reading - Strengthening Environmental Protection for a Healthier Canada Act - Parliament of Canada". www.parl.ca. Retrieved June 2, 2023.
  32. "An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act".
  33. Canada, Environment and Climate Change. "Fine regime under the Environmental Enforcement Act - Canada.ca". www.ec.gc.ca.
  34. Canada, Environment and Climate Change. "Environmental annual reports and statistics - Canada.ca". www.ec.gc.ca.
  35. "Canadian Regulations". Claigan. Retrieved July 8, 2022.
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