Thank you, Mr. Chair.
My name is Mark Winfield. I'm the director of the Pembina Institute's environmental governance program. With me today is Dr. Matthew Bramley, the director of our climate change program.
The definition of toxic substances under the Canadian Environmental Protection Act has been one of the most contentious issues in relation to the act. The assessment of substances against the definition of toxicity in CEPA is the centrepiece of the act's structure. Once substances are classified as toxic and added to the list of toxic substances, also known as schedule 1, the federal government is able to exercise a wide range of regulatory authority over their production, import, export, use, and release into the environment.
In recent years, the classification of a number of substances that are produced and released into the environment in large quantities, but which do not have high inherently toxic—for the purposes of CEPA—properties, has been a source of major controversy. These substances included road salt, certain criteria air pollutants, and greenhouse gases. These substances have been classified as toxic on the basis of the severe cumulative effects of their releases into the environment and on human health.
It has been argued by some that due to their lower inherent toxic properties relative to other substances that have been added to the list of toxic substances, these substances should not be described as toxic. Arguments have followed from this contention that they should be removed from CEPA's schedule 1 and dealt with under separate legislation, or that the substances meeting the definition provided in section 64 of the act be relabelled with some other term.
In approaching this issue, it is important to understand the legislative history behind the definition of toxic substances in section 64 of CEPA. When CEPA was originally drafted, the legislation's authors were trying to balance a number of factors. These included the need flowing from the Supreme Court's 1988 Crown Zellerbach decision to ensure that the scope of federal regulatory activity under the act was of a nature that obtained a “singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution”.
This implied that regulatory activity under the act would need to be bounded in some way and simply could not cover all matters related to environmental protection.
The establishment of a limited list of substances—the development of which was subject to a series of extremely rigorous tests—in relation to which federal activity would occur, was seen as a way of addressing the need to bound the scope of federal regulatory activity with respect to the environment.
At the same time, the drafters of CEPA wished to establish a definition of toxicity that was broad enough to provide a basis for federal regulatory action in relation to global environmental threats or other serious threats to human health from the environment that did not fit the traditional model of exposure of individual organisms to substances with inherently toxic properties. Rather, they sought to provide a legislative basis for the federal government to address threats to the structure and function of the ecological and global systems on which life depends. Indeed, at the time CEPA was being drafted, its authors wanted to be certain that the act would provide a basis for federal action on a class of pollutants with low inherent toxicity, but that were having a severely adverse effect on the global atmosphere and were subject to a major international agreement, namely CFCs.
It is also important to understand how difficult it is for substances to meet the definition of toxicity as laid out in section 64. Substances are required to be identified and assessed by Environment Canada and Health Canada, a process that usually takes several years. The departments' assessments are subject to extensive external review and may be challenged before boards of review. Decisions to add substances to schedule 1 of CEPA are ultimately made by the cabinet and not by individual ministers.
It is also important to recall that the addition of substances to schedule 1 of CEPA does not mean that the federal government will actually regulate their use, production, release, or disposal. Rather the addition of substances to schedule 1 merely provides the basis for federal action. It does not, in and of itself, mean that the use, production, or release of a substance has been restricted or controlled. In fact this been identified as a major weakness in CEPA's structure.
My colleague Dr. Bramley is going to speak directly to the issue of the status of greenhouse gases as substances on schedule 1 of CEPA.