Evidence of meeting #23 for Bill C-30 (39th Parliament, 1st Session) in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was products.
A recording is available from Parliament.
Conservative
Conservative
Acting Director General, Legislation and Regulatory Affairs, Environmental Stewardship Branch, Department of the Environment
The intention of this amendment, of course, is part and parcel of the government's overall approach. That was to create a separate clean air part, in order to allow for the scientific identification, assessment, monitoring, and regulation, ultimately and if necessary, of air pollutants and greenhouse gases. In so doing, the government has created two separate categories of substances—namely, air pollutants and greenhouses gases—whereas in the current CEPA we have one category of substances called “toxic” substances.
Mr. Cullen is correct, in the sense that the processes for identifying, assessing, labelling, and regulating toxic substances under part 5 of CEPA were upheld in the Supreme Court of Canada in the Hydro-Québec case.
Before it was amended, the clean air part in Bill C-30 was constructed so as to mirror those same processes as closely as possible—the sequence of steps in part 5 that the Supreme Court relied so strongly on in upholding part 5. In other words, it was our view that the same finding would apply to part 5.1 as has already applied to part 5.
More generally—and I'm here not providing a legal opinion, I'm here as a representative of the Department of the Environment—if there is any environmental issue that is within the federal government's jurisdiction as one that is of national or international concern and it is not constrained to a local issue, surely it is air pollution and greenhouse gases, which, by definition, cross political jurisdictions.
The final point I would make is that any bill brought forward by the government is thoroughly reviewed by the Department of Justice. We're not privy to release the opinions of Justice, but I can assure you that this question was carefully considered.
Liberal
David McGuinty Liberal Ottawa South, ON
Thank you.
We are on clause 38.
Like some of Mr. Cullen's comments, clauses 38 to 41 are major government amendments to take greenhouse gases and air pollutants out of CEPA. Due to the changes we've already made to clause 18 through Liberal amendment L-21.1, we think it no longer makes sense to remove GHGs and air pollutants from the schedule 1 toxics list.
We've been concerned from the beginning that clauses 38 to 40 remove criteria air pollutants and greenhouse gases from schedule 1 of CEPA--to repeat myself--and place these substances into two new categories, air pollutants and greenhouse gases. Effectively, Mr. Chair, these clauses create a parallel set of authorities, with tools that are currently in CEPA with respect to toxic substances.
We think this double listing will create some ambiguity. There has been litigation—we've just had a small discussion about Hydro-Québec, for example—to raise the profile of this ambiguity. We need to keep this quite unambiguous.
We think the government's original Bill C-30 provisions would simply have reproduced regulatory authorities that the federal government already has in relation to these substances. We've said that since the beginning of the Bill C-30 process. These have been found to meet the definition of “toxic substances” under section 64 of CEPA, and those substances are already listed on CEPA's schedule 1.
So as Mr. Jean just asked, we believe that if they had gone through, they would have raised a serious question about what the constitutional basis for the exercise of federal regulatory authority in relation to these substances actually is. For those reasons alone, and because of the fact that we believe we really need to make this whole question unambiguous, as opposed to ambiguous, we are opposed to clause 38.
Conservative
Mark Warawa Conservative Langley, BC
Thank you, Chair.
Mr. Moffet provided some comments that I was going to make, but I want to correct some comments made by Mr. McGuinty.
He said that the clause would take greenhouse gas emissions and pollutants out of CEPA. That's not correct. In fact, it would be a clean air part of CEPA to manage greenhouse gases and pollutants.
With the changes that have been made by the Liberals through amendment L-21.1, it isn't possible to have it as a stand-alone section, and it has now been made ineffective.
If it had been part of the Clean Air Act part of CEPA, it would have been a very effective way of managing and dealing with greenhouse gases and pollution. It's not possible now with the changes that have been made.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
We'll certainly take the government at its word as to what it was attempting to do.
It seems two options have been made available here. There's one option of creating this new section in the act and trying to control greenhouse gas emissions that way, or there's the option that exists and is available to the government right now, which uses the current toxic list and has greenhouse gases listed under that.
The problem with the first option of creating this new piece is that even witnesses who were opposed to greenhouse gases being on the toxic list, when asked and pressed on whether or not it opened up the question of potential litigation and muddying of the waters, said yes, it would.
Why open up the chance of action being taken when the option that exists right now for leaving the greenhouse gases where they are is an option that allows government to use the tools that are now being placed into Bill C-30 to greater effect? If the tool is available, functions, and has been tested all the way to the Supreme Court, it seems to me it's an excellent tool.
Through the amendments, we have now placed targets and options for governments to use different vehicles going forward. To muddy the waters, as clause 38 does, and create this new section...even witnesses who are opposed to the current situation said there is a potential to open up questions. We've heard from the justice who sat on the court and tested this the first time around, and he urged us not to do it. It seems to be pretty compelling evidence.
While I'll still take the government at its word as to the intention of what it was doing—and they'll vote how they will—I would suggest that the option available right now, as the act exists, allows government to use the tools we've now placed in Bill C-30 to greater effect and gives the government every regulatory power they need. It's also been tested.
To open up a new section, as witnesses told us, even those who might be in favour of opening a new section, opens up the possibility of further litigation.
If we take Mr. Moffet's opinion, although he can't give details, the spectre was raised. There's an option and a potential course there for those companies that are most regressive. Why open up the option for the lowest common denominator industries that might not be interested in cleaning up their act?
I've heard the opinions, but my position on this hasn't shifted.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Mr. Chair, I only want to confirm that I heard somewhat different testimony from the department the last time I asked this question, but I did ask this question. I raised it at committee several times, and we heard from different witnesses on different points of view on this, not only on the one point, as Mr. Cullen has alluded to.
But after indeed talking to the department, I even went so far as to do some additional research, and I'm quite satisfied with the constitutionality of it. Notwithstanding that, how you vote is definitely up to you.
But on the other side, I thought I heard an offer from Mr. McGuinty about wanting to make sure this act was not ambiguous. I'm indeed wondering whether or not his proposal is to go back three or four days and start over again on this slash-and-burn dog's breakfast that we have today in this act. Is that what he was suggesting?
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I'm only wondering, because it's a little bit of an insult.
Liberal
Conservative
Mark Warawa Conservative Langley, BC
I have two quick closing comments, Chair.
What we would like to see as Canadians is a cleaner environment, reduced greenhouse gas emissions, and reduced pollution levels. Mr. McGuinty and Mr. Cullen have both suggested it could be done under CEPA as we have it now. The government believes no, that CEPA needed to be strengthened.
The question that is left unanswered, then, is this. If CEPA would have been able to accomplish that, in the opinion of the Liberals, why wasn't it done?
We believe clearly that CEPA needs to be strengthened. This would have done that, but then continuing this debate and Mr. Cullen's argument, I would suggest it's irrational when it's actually.... As Mr. Jean pointed out, we've taken away the tools, we've taken away the Clean Air Act, and now they want to argue about whether the Clean Air Act was achievable.
Once you've gutted the Clean Air Act part, I think there's no point in continuing the debate.
Conservative
Jeff Watson Conservative Essex, ON
Thank you, Mr. Chair.
Actually, further to Mr. Warawa's comments, we can take it back even further. I'm reading from a document called Creating Opportunity, the so-called Liberal plan for Canada. On page 70, they even had a short-term target. I'm surprised it never saw the light of day, but it was to cut CO2 emissions by 20%, from 1988 levels, by the year 2005.
If they had ever wanted to even keep that short-term target, they had the CEPA tools that they say are sufficient to do the job. They had them for six years and didn't utilize them, Mr. Chair--35% above the Kyoto target emissions, well above what they said they were going to do way back in 1993.
The argument that the current CEPA tools are sufficient enough I think only further exposes just how little inaction the previous Liberal government took on this particular issue. It suggests to us that we did need a tailored approach that was integrated to deal with not only greenhouse gas emissions--we saw a marked increase under the Liberals--but also to deal with pollution prevention, air pollution, and indoor air quality.
Mr. Chair, I think the route the opposition has taken here at committee certainly is not the right course.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
It's a very quick point and then I imagine we can get to the vote.
I would encourage my colleagues, as tempting as it is to bring forward political documents and promises made and why failures have happened in the past.... And believe me, I understand how tempting that is.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Thank you. I'll have that reference for later in the campaign, I'm sure, but right now we're not in the campaign.
