Evidence of meeting #37 for Environment and Sustainable Development in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cepa.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Meinhard Doelle  Professor, Schulich School of Law, Dalhousie University, As an Individual
Mark Winfield  Professor, Faculty of Environmental Studies, York University, As an Individual
Lynda Collins  Associate Professor, Centre for Environmental Law & Global Sustainability, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
Daniel Krewski  Professor and Director, Faculty of Medicine, University of Ottawa, As an Individual

5:10 p.m.

Liberal

The Chair Liberal Deb Schulte

Thank you very much.

Over to Ms. Duncan, and we're going to add five minutes, so you have eight minutes.

5:10 p.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

Thank you very much. That's very kind.

I have so much to ask, although I really appreciate the testimony and especially the effort to provide written briefs.

My first question will be for Dr. Krewski.

You mentioned, sir, this new way of assessing toxins that a number of other jurisdictions have adopted. What has been the response of the Canadian government?

5:10 p.m.

Prof. Daniel Krewski

I think the Canadian government is very aware of the new science. They're looking at it and starting to use certain parts of the complete tool box that we've offered the world. In fact, I think Health Canada in particular has been very proactive because they're currently involved in a planning process for where we would like to be in 2017 and 2020, which are two key checkpoints on DSL deliverables under CEPA, and they also have a planning process under way to look at 2020 and beyond. I would say that our federal government, at least as represented by the Department of Health, is very much on the cutting edge of the new science.

5:10 p.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

That's encouraging.

I really appreciate all the testimony that we've heard, even before I joined the committee, about equity and about environmental justice, particularly for vulnerable populations. When we did the review of emissions from electricity, mostly coal-fired power in Alberta, what the government agreed to do is adopt what I proposed, which is a hot-spots protocol. You are probably aware that in the U.S. they also adopted a hot-spots protocol for coal-fired power. That mechanism is put forward when you have a situation where you have a consolidated source of pollution, such as coal-fired power, oil sands, petrochemical, and so forth. Do you think there is a way the legislation could also incorporate that?

In the Alberta model, there are a number of trigger points. One is when you've got repeated non-compliance, or there's new science that becomes available, and it would trigger a review, including the impact to the community. I wonder if both of you could speak to a variety of options we could use to make sure that vulnerable populations are protected under the act.

5:10 p.m.

Professor, Faculty of Environmental Studies, York University, As an Individual

Dr. Mark Winfield

I think the scope is potentially quite broad, given that most of the air pollutants of concern, both the smog precursors and the hazardous air pollutants, are already on the list of toxic substances, so the potential scope of federal regulatory actions is already quite wide.

I would think a potential model for that is the one that exists, for example, under the U.S. Clean Air Act with the notion of a non-attainment area. The implication, of course, is you have to have some sort of national ambient air quality standard against which you could then say that this location in Fort McMurray or wherever fails to achieve those standards, and therefore, further interventions are required.

I think it's entirely feasible, and we have precedents for doing that, either as toxic substances, but also, as was suggested, we could do interprovincial air pollution as well. I think it's quite doable. The pieces we don't have are provisions around air quality standards per se, but that's not infeasible. There could be guidelines that would then be triggers for regulatory action in relation to the toxic substances that were implicated in a failure to achieve the ambient air quality standards.

5:15 p.m.

Prof. Lynda Collins

I concur. I really favour the U.S. Clean Air Act approach that has binding consequences. Basically, if states fail to attain the national ambient air quality standard, they lose certain federal funding. The reason I favour it is we have data that it worked. We've actually seen real improvements, for example, in fine particulate matter concentrations in the non-attainment areas after these consequences were imposed.

Professor Doelle, do you want to add anything?

5:15 p.m.

Professor, Schulich School of Law, Dalhousie University, As an Individual

5:15 p.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

I have time for one more quick question. I'm really interested in hearing your submissions further if you think about an equivalency. Over time I've been deeply concerned that the interest in friendly federal-provincial relations has overridden the exercise of the federal power, so I'd welcome any comments that you would have. Do we need changes in the law? Do we need changes in the attitude of the federal government so that we make sure this legislation has priority over ensuring there are friendly federal-provincial relations?

5:15 p.m.

Professor, Faculty of Environmental Studies, York University, As an Individual

Dr. Mark Winfield

I think the short answer is yes on both fronts.

What needs to happen within the act is there needs to be much more specific criteria about when the Government of Canada can enter into an equivalency agreement with a province. They need to ask not just is there a legislative or regulatory enactment of equivalent requirements, but does the province have the capacity to administer and do that. There needs to be provisions around regular reporting on performance, as well. The government is proposing that there not even be equivalency administrative agreements, but also that they be evergreened and not even have time limits on them.

5:15 p.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

The problem has been that there's a federal regulation, and then a province or territory could claim equivalency, if they have the same regulation and the same enforcement compliance policy. What's happened is that there's no federal regulation, and they just say, “Oh, are you thinking of doing something?”

5:15 p.m.

Professor, Faculty of Environmental Studies, York University, As an Individual

Dr. Mark Winfield

Indeed, you get a pre-emptive offer of equivalency from the federal government the moment it says, “Well, we might do something about this, but there will be an offer of equivalency on the table immediately.” I think that needs to be approached in a much more robust way. If the standards made under CEPA are supposed to be national in scope, then the provinces need to meet a substantive test for equivalency. This is what happens in the United States. The states do administer the EPA standards under the Clean Air Act, but there are very stringent tests on the part of the U.S. EPA as to whether they allow that. There is a record of the EPA effectively taking equivalency back from states that have not performed adequately, and then they enter into direct administration of the federal Clean Air Act regulatory regime within a state.

It's a much more robust approach on the part of the federal government. This does not preclude harmonious federal and provincial relations. I would argue that it's fairer to the provinces that deliver and take action. They're not disadvantaged by other provinces that say, “Oh, yes, we have an equivalency agreement”, but haven't done anything.

The other thing that troubled me greatly, as I was investigating, is that I couldn't find any recent evaluations of provincial performance under the existing equivalency or administrative agreement. I would be extremely cautious about loosening the rules around those without some greater evidence about the performance under the existing regime.

5:15 p.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

What's interesting is that, originally, when CEPA was tabled—and you were probably involved in that, or you were still young then, and I wasn't—there were two rules that the federal minister put in place. One was that you have equal regulation and the other one was that you have an equivalent enforcement compliance policy and strategies. That seems to have gone by the by.

One of the things we just haven't time to look at is that there's a second statute, right? There's the environmental enforcement statute that Jim Prentice enacted. That was always supposed to be part of CEPA. We also have to ask, what are the mechanisms to ensure enforcement and compliance? First of all, you have to regulate, and you have to set the standard.

I remain deeply troubled that the top priority substance, mercury, is still not regulated. I think it shows a serious problem with the statute and the attitudes to the statute.

I think you've all made incredible recommendations. We're going to have real fun trying to put together our report. It's going to be as thick as the statute.

I don't have any more questions. I just want to thank everybody for their incredible testimony.

5:15 p.m.

Liberal

The Chair Liberal Deb Schulte

Okay. We have five minutes with Mr. Fast.

5:15 p.m.

Conservative

Ed Fast Conservative Abbotsford, BC

Mr. Krewski, getting back to presumptive bans, we heard that some of the other witnesses support presumptive bans. I'm wondering whether you have a position on that. If so, what impact would presumptive bans have on the current assessment process in Canada?

5:20 p.m.

Prof. Daniel Krewski

Are you thinking that if an OECD country takes action, then we should immediately take some action, at least on an interim basis?

5:20 p.m.

Conservative

Ed Fast Conservative Abbotsford, BC

Yes.

5:20 p.m.

Prof. Daniel Krewski

I'm not sure I would slavishly follow a decision taken by another regulatory jurisdiction in another country, because they may have different principles by which they develop and enforce environmental regulation. I think we're pretty sophisticated about the way we do it in Canada. Just because the United States bans a food additive doesn't mean automatically that we do the same thing in Canada. We look at the science, and then we make a sensible decision.

I think we should take notice, and maybe it should be a red flag. We should look at it, but I'm not sure an automatic ban would necessarily always be the right decision.

5:20 p.m.

Conservative

Ed Fast Conservative Abbotsford, BC

When I think of some of the OECD countries, I'm not sure they necessarily have the same quality of science and methodology that we might use in Canada. I would trust our process, our science, and our government to a greater degree than a number of those other governments.

5:20 p.m.

Prof. Daniel Krewski

It's my hope that as we move forward we'll gravitate towards a common set of principles of risk assessment and risk decision-making. This is in the interest of globalization. It's in the interest of avoiding non-tariff trade barriers. I think we're still some distance from that yet. An international perspective is always good to keep in mind when you're crafting this piece of legislation.

5:20 p.m.

Conservative

Ed Fast Conservative Abbotsford, BC

The hazard-based approach, which is in place in the European Union, has been touted as being a better system than a risk-based management approach. The United States uses a risk-based management approach.

Do you have a comment on the European system, as to whether you find it to be superior, or perhaps on some of its shortcomings compared with the system we have in Canada?

5:20 p.m.

Prof. Daniel Krewski

My simple comment would be that they're different. I'm quite familiar with the European system, because we spend a lot of time in Europe. We've actually done REACH submissions for European proponents. We spend a lot of time in the United States working with EPA on their more risk-based approach. I see strengths and limitations to both.

I would hope we could find some kind of—I'm not trying to waffle on this one—happy medium whereby we could find the best of both worlds. There are areas in which a precautionary approach, a hazard-based approach, is particularly appropriate: big-ticket items, such as global change, concerning which if we do nothing we may be really sorry we didn't act. That's probably a key area. Whether it should be applied routinely for minor issues, something that's produced in the quality and quantity of 10 kilograms per year, I'm not sure.

I want to get this comment in at some point. This is now as good a time as any.

What you have in front of you is a wonderful opportunity to rethink a major piece of legislation that has huge impact. A lot has changed since the 1999 version of the act, to the extent that some consideration of new science, current thinking on decision-making approaches, possible consideration of other factors, maybe even whether environmental justice has a role or not.... It's just a wonderful opportunity to see whether you can get it as right as we can.

I like the last statute. I'm expecting the next one to be even better.

5:20 p.m.

Conservative

Ed Fast Conservative Abbotsford, BC

Thank you.

I will ask all four of our witnesses this. Has any of you been consulted by the government on future amendments to CEPA? I'm talking not about this committee, but about the government itself.

None of you has been directly consulted?

5:20 p.m.

Prof. Daniel Krewski

We've been consulted on science and how to use it, but not about CEPA.

5:20 p.m.

Conservative

Ed Fast Conservative Abbotsford, BC

Thank you.

5:20 p.m.

Liberal

The Chair Liberal Deb Schulte

I'm curious. Normally I don't get to ask questions, but I have something, and all the right people in the room. I've been incredibly impressed with what you shared with us today.

We know that CO2 is climbing, and we know that at some point it's toxic to humans. Do we have a sense of where that line is? We know what it would take to kill someone with CO2, but what is happening out there? We have these levels climbing. Do we know when it gets to the point that people are starting to be affected in their functioning and in their health? Do we have a sense of CO2 and its toxicity and where the levels are? Is anybody doing a study on that?