Environment Committee on Nov. 27th, 2006

[The Chair, Conservative, Bob Mills]

Mr. McGuinty, you have three minutes.

[David McGuinty, Liberal, Ottawa South, ON]

Thanks, Mr. Chairman.

I'd like to ask a question, if I could, of Mr. Lloyd.

Thank you very much for attending, ladies and gentlemen, this afternoon.

Mr. Lloyd, if I can, I want to cut right to the chase, because we've worked together in the past on different issues. I want to go to your brief. In the conclusion you say that CEPA ought to be used to differentiate between good and poor environmental performers, and that this act should be used to support the use of industry responsibility programs to recognize and encourage good-performing companies. The reader and the viewer is left hanging with a question of just how it is we should do this.

In fact, our government worked hard with you and so many other stakeholder groups for years to, for example, devise eco-efficiency indicators that would allow for meaningful comparison between not only companies in your Responsible Care program but for companies that hail from other sectors, like pulp and paper, for example. I want to put this to you. First, if you could, could you help us understand, for example, whether eco-efficiency indicators could be used and ought they to be reflected in the act? And secondly, ecological fiscal reform is, most western democracies now realize, the way forward. We need to find the way in which we're going to have a meaningful intersection of fiscal policy and environmental policy. Can you tell us, for example, how that might be used to achieve your objective, which is to have government recognize and reward good performers over bad performers?

[Gordon Lloyd]

Sure. Let me tackle the second question first. I've made this point, as has our CCPA president, Richard Paton, to this committee before. I think it's really unfortunate that improving capital cost allowance isn't being looked at from an environmental dimension. We've talked here before the committee, and I think Jay Myers from Canadian Manufacturers & Exporters made the same point, that it's pretty well demonstrated that if you get more new investment, you're going to have, with those newer plants, better environmental performance. One of the things governments can do to attract more of that new investment to Canada would be to improve the capital cost allowance provisions.

That's the type of example that would fit into your second question on the type of economic instruments that the government should be using. We think that should have been part of, for example, the notice of intent and the package of measures around greenhouse gases—I think it also applies to air pollutants—but it's not.

The first question means to differentiate between poor and bad performers. I allude to that a bit in a couple of paragraphs before my conclusion. I think there are tools in CEPA that could do that. Pollution prevention planning tools could be used for that, but the problem is that they're not being used. I think that's a question of political will and I think that's also what the Smart Regulation report said.

I don't know what the act can do to encourage that political will. One of the things that we're suggesting this committee do is to suggest that there be preambular text to ensure that governments at least consider that type of approach when they look at instruments they're going to use. I think that would be helpful. Now it wouldn't be determinative.

I haven't answered your specific question about indicators. They might fit into that, but I think the idea that I've put forward about pollution prevention planning would be an easier way to approach this within the existing framework of the legislation and the kinds of tools that we already have, but aren't using enough.

[The Chair, Conservative, Bob Mills]

Good, thank you.

Mr. Bigras.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chair.

My questions will focus mainly on the document that was submitted to us by the Sierra Legal Defence Fund, and more specifically on Appendix I of this document. In my opinion, this document provides the best information on the enforcement provisions of the Canadian Environmental Protection Act since 1999.

I think it was a good idea to postpone the Canadian Environmental Protection Act review, because when looking at this document, I realize that we had to wait until 2004-2005 for the first environmental protection compliance orders to be issued by virtue of this Act.

Mr. Chair, this means that if we had proceeded with a review five years after passing the Act, as specified, we would probably not have recorded a single compliance order.

How can we explain that we had to wait five years before obtaining the first compliance orders under the Canadian Environmental Protection Act? I am referring to the 2004-2005 period, when some 100 compliance orders were issued. This number represents the total number of issued orders registered in this report.

[Cynthia Wright]

I think you're thinking of the environmental protection compliance orders. They were used extensively in the last couple of years with regard to dry cleaning regulations.

This is a tool just to make sure that everyone is on the same page. Essentially it's like a stop work order. There has to have been evidence of a violation to use this tool. It's a fairly tool new. It came in with CEPA 1999. In the early days there had to be training of our staff and awareness in the industry around it. It's been used fairly significantly since that training and awareness, and used extensively in the dry cleaning regulations.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I understand, but there were still some 25,680 inspections during this period. First, how do we explain the fact there were 100 orders? This is my question. How do we explain such a limited number of orders, over a five-year period, when we are there to check the enforcement of the Act?

Secondly, I would like to know how many of these 100 environmental protection compliance orders were carried out in Quebec? Next, I would like to know who delivered these compliance orders. Did federal officers deliver them? If I am not mistaken, the Act clearly specifies that the enforcement officer may be a person who exercises a function of environment protection under the jurisdiction of another level of government. Therefore, there is always the possibility that another officer, say a provincial one, was able to do so.

These are my questions. How can we geographically divide these 100 compliance orders? How many of them were in Quebec?

[Cynthia Wright]

Mr. Chair, we did provide the committee earlier with details of all the different tools we've used in enforcement. We can certainly make sure that's brought to the attention of the member.

I just want to make sure there's an understanding that the environmental protection compliance order is not the only enforcement tool. It's the tool to use if there's not a change in industry's behaviour right away. Often when industry has violated a law they're aware of it, and they're often taking action as we're inspecting. There's often a willingness to comply right away. The environmental protection compliance order is a tool where there has been a lack of evidence of the willingness to comply.

We could get the statistics on Quebec. I don't have those in my hands. I think we did give just total summaries, so we can look into that.

Finally, yes, the law does allow training and designation of other members, but I believe most of those, if not all of them, have been by Environment Canada staff. I can look into that as well.

[The Chair, Conservative, Bob Mills]

Those summaries were distributed just prior to this meeting, Mr. Bigras.

[Cynthia Wright]

I think they're at the national level.

[The Chair, Conservative, Bob Mills]

No details, yes.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I have a second question. How do we explain that there were only 33 convictions in five years? Does this mean that the alternative measures are effective? Does this mean that, in the end, there is no need to proceed with an enhancement of the Act? Can't we assume that everything is just fine and dandy and that, in the end, very few offences or penalties end up as convictions? Thirty-three convictions in three years is not really a significant number.

[Cynthia Wright]

When we conduct inspections, if there is no violation, there is no subsequent legal action. If there is no conviction, usually, it is really a sign of compliance with the law. For example, in the pulp and paper sector, there is a 98% rate of compliance. This is a really good indication of the industry's will to act in compliance with the law.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

O.K.

What does Mr. Wright think? Does he believe that the fact that there were only 33 convictions proves the existence of good corporate citizens?

[Robert Wright]

I think the number for CEPA 1999 is at our tab H, and the number for CEPA 1999 was only 24. So 9 of those 33 were for CEPA carry-overs for CEPA 1988, according to the records we were given.

In our view, that's inordinately low for what is said to be Canada's premier environmental protection piece of legislation. There's been more activity certainly, I believe, under the Fisheries Act. It doesn't mean that everything should be resolved by way of prosecution, but it is there and available and it surprises us. I think the suggestion by the government itself in that document I referred to earlier, the formative evaluation, we have that at tab G. The government's own conclusion was, and I quote:

It is not possible to determine whether expected outcomes with respect to Part 10 of the Act will be achieved as measurement and reporting systems capable of documenting progress towards expected outcomes in this area remain under development at the time of this evaluation. Such systems will need to be developed and implemented in order to ascertain the likelihood of progress relating to the expected outcomes.

Part 10 of the act being the enforcement section, and the evaluation referred to was in March 2005.

In our paper we also ask for an increase in the information obtained and analyzed, to assess whether the enforcement is working. Our own view, in our own experience, is that it is not indicative of enforcement with that number of convictions. However, we would concur with the government paper that they need to look at it very seriously and analyze it properly.

I hope that answers your question.

[The Chair, Conservative, Bob Mills]

Mr. Lussier, do you want to finish? You have a little less than two minutes.

[Marcel Lussier, Bloc, Brossard—La Prairie, QC]

My question is for Mr. Lloyd.

In your document, you state that you have MOUs with four provinces. What about the other provinces?

[Gordon Lloyd]

We don't have sufficient operations in the other provinces to warrant doing that. We actually have what I would call a national MOU, memorandum of understanding. The federal government is a signatory at the ministerial level from three departments: Industry, Health and Environment. In its first renewal, Ontario and Alberta also joined. And in its upcoming renewal, which is still in progress, British Columbia has joined and Quebec is participating in the management group for this. It's called the Environmental Protection Steering Group, and Quebec isn't signing the same document as everybody else, but we're developing a parallel MOU with them. They see themselves as a full participant and came to the last meeting and participated.

Then we also have environmental groups that participate in this. We have a national advisory panel for Responsible Care, which has people from various walks of life. We have a couple of representatives from there and some environmental representatives as well. It's not with each separate provincial government, it's kind of all in together, although we will be having the separate arrangement with Quebec so they can participate in our national approach.

We have a separate agreement also with Ontario related to that. And that's basically the answer to your question.

[The Chair, Conservative, Bob Mills]

Thank you, Mr. Lussier.

I would mention that Mr. Cullen did come to see me. He is attending Mrs. Broadbent's memorial this afternoon. Now you know where Mr. Cullen and members of the NDP are.

Mr. Vellacott, please.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Thanks.

I have a question I want to ask, probably to each of the witnesses. I think it would be a good thing to have each of you respond, if you could, to the issue of whether you think CEPA places too much emphasis on voluntary instruments, such as guidelines, codes, codes of practice and policy statements, or is something more required? Is there too much emphasis on those voluntary things? Do we need something else?

[Richard Hanneman]

Thank you.

I would say that our remarks will have to be confined to our issue, which is road salts. In that, I think the appropriate response is a voluntary code of practice, as has been worked out. I don't think a regulation can be sufficiently flexible to reflect the operating conditions, and the local topography, and environmental conditions to make it work.

I could envision that other substances might very well require an enforcement regulatory approach, but we're talking about a situation where you have millions of tonnes of a very low threat material. So it's really the question of where it gets concentrated, and does that concentration occur at a place where it is vulnerable to that kind of challenge.

[Michael Teeter]

I've said this before and I'll say it again. I think if the discussion with industry, in particular about substances because it's a substance-based act, focused more on the use of the context of the substance and the problem areas that resulted from the use of those substances to human use, you'd get the solutions a lot faster. Frequently, regulations would be the best solution, and everybody might agree to that.

I think one of the problems with the statute is the broad nature of the process. Looking at a substance broadly and all its uses just makes for a real mess if you want to get agreement quickly. So if we looked at the context of use, the human dimension of a substance, I think you'd probably get to regulation faster, if that's your objective.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Do I understand you to say then that you are in support of moving to some greater regulatory approach?

[Michael Teeter]

No, I'm just saying that in some cases all stakeholders might agree. I think where there's agreement, in order for equity and fairness to work, I think that if you looked in context you'd get a lot more agreement.

No, some things obviously wouldn't work in a regulatory environment, and some things do. It just depends on the circumstance. And I think even Environment Canada and Health Canada would agree that every situation is different, that the solution is different for every situation.

[Gordon Lloyd]

First of all, I think we should stop using the word “voluntary”, because it has the wrong connotation. It has the connotation that these are things you do if you want to. Where you're going to have these kinds of programs and you're going to rely on industry to do it in a non-regulatory sense, I think there should be some ability to count on industry to be able to deliver.

There should be infrastructure with the sector reporting. It's not voluntary in the sense of “do it or not do it, it's up to you”. It's that the legislature is going to take a route of having industry use a non-regulatory approach, with the assurance that it will get done. So that's why I call these things industry responsibility programs instead of voluntary programs.

It's a nuance perhaps in language, but I really wish that 10 years ago when we started to talk about these we'd picked a different word. I think we trapped ourselves collectively into the wrong lexicon on this.

I think industry responsibility programs need to be more embedded in the act in trying to make sure they actually do deliver on what's committed. That's why I suggested that one approach might be tying them to pollution prevention planning, which gives the use of a quasi-regulatory instrument. The government can set out factors to be considered, things that it would like done, and the industry can respond through its industry responsibility program of how it's doing that.

As I said, I think that's allowed for in the act; the problem is that there seems to be not much political will to use it. And I think that's partly because of this false dichotomy we've set up of voluntary, which has the notion in the public that they can do it if they want, versus regulatory. I think there's really this very important ground in between where you're not using a regulation, which tends to be complex and with which I think it's much more difficult to achieve results, but you are using the fact that it will happen, it will get delivered, and you're tracking against that.

I hope that helps.