Evidence of meeting #6 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.
Acting Director General, Safe Environments Directorate, Department of Health
Yes. In 2008 there was a report by the Canadian Medical Association that estimated there were 21,000 premature deaths per year associated with air pollution. Subsequent research has lowered that number somewhat. The WHO burden of disease study estimated that there were 9,000—sorry—premature deaths associated with particulate matter.
Liberal
The Chair Liberal Deb Schulte
You definitely gave me a heart attack there.
Thank you very much for that clarification.
Liberal
Mike Bossio Liberal Hastings—Lennox and Addington, ON
Would it be possible to get a copy of the brief at some point? I didn't receive it anywhere.
We don't have it, correct?
Liberal
The Chair Liberal Deb Schulte
No. He's just making a presentation.
There will be the blues that come out that have word by word what's been said.
Thank you.
Liberal
Mike Bossio Liberal Hastings—Lennox and Addington, ON
Would it be possible in the future to get these presentations beforehand? It's a lot easier to follow and learn from than hearing it now and having to refer to it later. How do you ask informed questions when you really haven't had the material to study beforehand?
Liberal
The Chair Liberal Deb Schulte
Just to be clear, we have had this little discussion before. Sometimes it's possible. Obviously, any presentation, if it's going to be officially distributed, needs to be translated. It gets to be a bit burdensome when someone is trying to come forward to make a witness statement. We are asking for it, but it isn't always possible. We'll definitely get it recorded in the blues so you will have a word-by-word account of what's said today. I'm hearing you. We are asking for them, but we don't always get them.
Mr. Moffet. We have 13 minutes. I just want to let you know where we are with the time.
John Moffet Director General, Legislative and Regulatory Affairs, Department of the Environment
Like my colleague, I will make my presentation in English, but I would be happy to answer any of your questions in French or in English.
Like my colleague, we're very pleased to participate in this review. CEPA is an extremely important statute for environmental protection in Canada. We're looking forward to the results of your review and to contributing in any way that we can.
I have a fairly lengthy deck. I'll go through it. If you want to tell me to speed up, skip sections, wave coloured—
Liberal
The Chair Liberal Deb Schulte
I don't think we want to skip sections, but we'll try to expedite.
Thank you.
Director General, Legislative and Regulatory Affairs, Department of the Environment
I'll provide a little bit of background. Health Canada was formed before the Great War. Environment Canada was formed in 1971. Until 1988, Environment Canada operated on the basis of using various statutes that pre-existed the department. In 1988, Parliament consolidated a number of statutes and parts of statutes into what then became known as the Canadian Environmental Protection Act. That act had a primary focus on pollution, but significantly on pollution from both an environmental perspective and a human health perspective. That, of course, remains the primary focus of CEPA today.
During the 1990s, CEPA 88 underwent a very extensive review by your committee's predecessor, chaired by Charles Caccia. The review resulted in a very comprehensive set of recommendations to enhance the act and strengthen it in numerous ways. The government provided a detailed response, and then effectively tabled a new bill, which in turn went through an extensive clause-by-clause review and resulted in CEPA 99. Since then, CEPA 99 has undergone a handful of minor modifications, a review by a House committee, and a parallel review by a Senate committee in 2006 and 2007. However, no subsequent Parliamentary reviews and no comprehensive set of reforms have been made to the act since it was introduced in 1999.
Environment and Climate Change Canada has two primary pollution statutes. One is the Fisheries Act, which contains a prohibition on depositing deleterious substances in the water. That's the primary statutory authority for addressing water pollution. However, for all other pollution, CEPA is our main statute. Of course, many other departments have other statutes that address environment and health risks. Most of those statutes are product focused. For example, Agriculture Canada and CFIA have a number of statutes that focus on seeds, feeds, etc. Our colleagues at Health Canada have the Food and Drugs Act and the Canada Consumer Product Safety Act, a lot of product-focused acts.
The way CEPA generally works is that if another act provides for equivalent environmental and health protection, CEPA stands down and the other act operates, which makes sense because that act has been designed specifically for that set of products. However, CEPA sets some basic requirements and allows the government to intervene in a wide range of areas.
We tend to think of CEPA as providing a tool box, a broad set of authorities to address a wide range of issues using a wide range of tools. In some cases, however, the act is a little more prescriptive and that's generally the case where Parliament has decided to use the act to bring into Canadian law a commitment that we've made internationally. I'll get to a couple of examples later in my presentation.
Now, for those of you who have attempted to wade through CEPA, or have even been deterred by the bulk of it, you'll know that it's an extensive act and it's a complicated statute. One way to understand it is simply by looking at the structure to determine which chapter addresses what issue. Another way to think about it is what broad sets of authorities it contains, what tools it enables the government to use. A third way to understand it is as to what subjects or issues the government has used CEPA to address.
I am going to take you through all three, and I hope that will give you a good basis for understanding the statute.
Slide 5 gives you a summary of the main structure of the act. The actual table of contents is reproduced in annex B on slide 20. The front end of the statute gives some crosscutting authorities and some obligations related to requirements for transparency and public participation, some authorities for gathering information to determine what kinds of issues to address, and authorities for some of the tools that we use, objectives, guidelines, and codes of practice.
My colleague John Cooper has described the work the government does to address chemicals under the chemicals management plan. The legal framework for that work is primarily found in parts 4, 5, and 6 of CEPA, which are premised on this test of whether a substance is toxic. That is a term that is carefully defined in the act and is a much broader term than the meaning of “toxic” in normal parlance. It essentially means harmful to health, harmful to the environment, or harmful to the environment on which human life depends. It's a very broad definition of risk. The act separates what one might think of as chemicals or inanimate products, and animate products or toxic substances in living organisms, but basically the same regime applies to both.
Part 7 focuses on various specific sources of pollution. You can trace the history of some of those provisions back to pre-CEPA 1988. Nutrients provisions were in another statute and brought into CEPA at that time. Some of the air pollution provisions for vehicles, fuels, and engines were in other statutes and brought into CEPA. Other provisions in this part, as I mentioned earlier, are designed to address international agreements. There is a set of provisions about ocean disposal, which basically replicate the London protocol under the London convention. Another set of provisions addresses transboundary movement of hazardous waste and hazardous recyclable materials. Those are basically designed to enable Canada to comply with its obligations both under a bilateral Canada-U.S. agreement and under an international agreement known as the Basel convention.
We have fairly extensive authorities to address environmental emergencies, both to require planning and to take action. Part 9 allows us to address pollution from government operations, federal undertakings, and activities that occur on federal lands. Collectively, this is known as the federal house. It is important to have these authorities because although the jurisprudence is a little fuzzy, in general, one can say that many provincial environmental laws do not apply to the federal house. Whereas on most land in Canada an activity would be subject to a combination of federal and provincial laws, or federal and territorial laws, within the federal house, whether it's a federal activity or an activity on federal land, including aboriginal land, in general, most of those provincial environmental laws do not apply, so there is a gap that needs to be filled.
Then we have a very extensive enforcement regime.
All told, it's an extensive act and a powerful act. One of our previous ministers actually did wade through the entire act and commented after reading it that CEPA is a Ferrari. I'm not sure I'd go that far. I guess he was one of those rare politicians who are prone to hyperbole.
Director General, Legislative and Regulatory Affairs, Department of the Environment
I'm glad somebody laughed. I had to try.
But the statute has extensive authorities and is used to address a wide range of issues.
Let me turn to the kinds of authorities we have under the statute.
Of course, environmental and health decision-making needs to be science based and based on good information, so the act gives us broad authority to conduct research. Indeed, it mandates a wide range of research on the parts of both Health Canada and Environment and Climate Change Canada. It also gives us various tools to gather information. In some cases, of course, a producer of a particular substance will be in a much better place to actually conduct a test to enable us to get the information to determine whether there's a problem.
In addition to that kind of information, we also need information about who's using and who's emitting substances and pollutants. We're able to gather that information to enable us to make informed decisions about whether to act and how to act.
I'll talk about the regulatory authority in the act. You will see there are authorities for the government, for the Governor in Council, to pass regulations with respect to virtually all of the issues the act addresses. There is authority to regulate substances that are found to be toxic, or in other words, that meet that test of harm to the environment, harm to health, or harm to the environment on which human health depends.
Similarly, we have the authority to set emission and design standards for air emissions from vehicles and from engines. We have authority to regulate fuel composition. That's important of course because the combustion of fuels can lead to air pollution and greenhouse gases. Also, when we set vehicle and engine standards, we need to ensure that fuel that can be used effectively with those new technologies is available.
You can see the rest of the list. There is a broad set of regulatory authorities.
The act is structured in a very reader-unfriendly manner. You'll see regulatory authorities scattered throughout the act, and then buried in the so-called miscellaneous section right at the back of the act, part 11, Miscellaneous Matters, are two provisions, 322 and 326, that authorize most of those regulatory authorities to include provisions for trading systems. Most people will have heard of air emissions trading, but we have actually used trading systems in five different regulations, not all of which are focused on air, so for renewable fuels, sulphur and gasoline regulations, and so on.
In a couple of places in this deck we've taken the liberty of identifying limitations in the statute. My colleague and I are going to be very careful here. I need to be very careful. We're not here to tell you what you should do. We're not here to tell you what the act should be focused on or indeed how you should amend the act, if at all. But we can tell you that the act addresses this issue and doesn't address that issue, and it's up to you to decide whether it should address that issue. We're treading the fine line between giving you the information you need and not usurping your authority or our minister's authority to make those kinds of judgments.
In the case of trading systems, the broad authority to develop trading systems that we've already demonstrated can be used quite effectively. However, we know from experience in other jurisdictions that in some cases effective trading systems would include features such as auctioning of permits, and we don't have authority to auction permits under CEPA at the moment.
Similarly, because most of CEPA is established under the criminal law head of power, we don't have authority under that head of power and under regulations that are developed under that head of power to impose automatic administrative penalties. However, we know that in some jurisdictions that have effective trading systems, it's a market-based system and the market works best in response to immediate, clear signals including penalties that are a bit different than can be available through a criminal penalty, which of course can be significant but can be a little uncertain in terms of whether it's actually going to be imposed, when it's going to be imposed, and what the amount is going to be.
In addition to regulations, there are a number of other tools or instruments that the act allows us to use to address risks. We have permit systems for ocean disposal, for transboundary movement of waste, and for exports of substances that are on the export control list.
We have something called pollution prevention plans. Basically, that derives from some very interesting work that was done in the 1980s primarily in the United States. It looked at energy efficiency and basically called into question the classic economic theory that if there is a piece of change on the ground, the rational actor will pick it up. Of course, while we all might think we're rational, we're not all-seeing and all-knowing, and any company is going to have limitations on its ability to identify all possible cost-saving opportunities.
In the case of energy efficiency, a number of initiatives in the United States basically required companies to undertake energy efficiency plans. They didn't have to actually do anything other than a plan to look at where their energy efficiency opportunities were. The result was overwhelmingly that companies adopted energy efficiency initiatives because they identified ways to save money.
Pollution prevention planning is the same concept. We'll tell you that there's an issue; we'll tell you what the environmental objective or concern is, and we'll require you to do a plan to look at ways within your operation to address that issue. If you say that you've done the plan and you're not going to do anything, you've complied with the law as long as you've done a plan. We've used this authority on numerous occasions and in no situation have we had to subsequently step in and regulate, because companies have consistently stepped up to the plate and said they would do what was needed to address the environmental issue. That was a tool that was introduced in CEPA in 1999.
We also, as my colleague mentioned, have the authority to issue guidelines, air quality guidelines and water quality guidelines. Those can just go out there to provide information. They can be taken up by provinces and incorporated into their permitting systems or be taken up by federal government requirements.
Similarly, we have the authority to issue codes of practice, which are basically a way in which a particular industrial process should ideally be undertaken. Again, those can just be published and put out there for good practice, or they can be incorporated into law either provincially or federally.
Moving to the robust enforcement regime that we have, just like risk management tools, the basic underlying goal in CEPA is to provide enforcement officials with a range of tools to respond to a situation appropriately so that you don't have only the two options of turning a blind eye or prosecuting.
Of course, prosecution is costly to the government. It may be overkill in the case of a relatively innocent mistake. It's totally appropriate in the case of an egregious offence or a repeat offender, but you need the intermediate tools to bring people back into compliance. That's the basic structure of the act, to provide a range of tools.
Slide 11 summarizes some of the authorities we have for intergovernmental co-operation. We have authorities for what are called equivalency agreements. If a province, territory, or aboriginal government is addressing the same issue and achieving the same outcome, then we can have an agreement followed by a Governor in Council order that essentially stands down the application of CEPA for that particular issue in that particular jurisdiction. There is no point having two requirements focused on the same issue.
We also have the authority to tailor regulations. Generally a regulation under CEPA applies nationwide, but we have the authority, subject to some conditions, to focus a regulation on a particular part of the country where environmental or health concerns warrant that kind of tailoring.
The act contains a number of requirements for consultation that go beyond the basic requirements for consultation when developing regulations or other kinds of formal instruments. It also has obligations to publish every proposed and final decision on the web-based environmental registry and obligations to consult on every one of those decisions with provinces, territories, and aboriginal governments through the CEPA National Advisory Committee, which Mr. Cooper and I co-chair.
The next six slides talk about the kinds of issues we have addressed under CEPA. My colleague introduced the chemicals management plan. That plan subsumes two broad sets of activities, one to address new substances and one to address existing substances.
What do I mean by that? Under CEPA 88, we drew up the domestic substances list. That was a list of all substances that were in commercial use in Canada above certain thresholds in the mid to late 1980s. Basically, if a substance is not on that list, it's considered new. It cannot be used in Canada until it goes through a pre-market notification process.
We have a regulation that indicates the information you have to provide, and then the law requires us to take that information and assess it within a certain period of time. Based on that assessment, the ministers can say that you're good to go and you can use it, or you can use it subject to conditions, or you can't use it at all.
If a substance is on that list, however—and there were 23,000 substances on that list—they are existing substances. People have made investments in using those substances. They are in all kinds of products and processes. Canada, like every other country in the world, confronted this issue in the 1990s. What do we do with these tens of thousands of substances that haven't been assessed but are in use?
Canada developed a set of requirements that is unique in the world. This was the categorization obligation. CEPA 99 set out some basic criteria and required the departments of environment and health to basically triage those 23,000 substances based on some basic criteria to identify substances that should be a priority for a full assessment.
We went from 23,000 to 4,300, and then developed the chemicals management plan in 2007, in which we made a commitment to complete assessments of those 4,300 substances by 2020. We're on track to complete that set of assessments.
Of course, if we identify a substance that needs to be risk managed following one of those assessments, then we develop a risk management instrument using one of the tools under CEPA.
Let me turn to air pollution and greenhouse gases. Sorry, I should speak to a couple of the issues on slides 12 and 13.
In CEPA 1999, Parliament wanted to distinguish among substances that were persistent and bioaccumulative and inherently toxic. This was a category of substances that had been identified by scientists for a long time and which had then been taken up by the International Joint Commission as a set of substances that needed particular attention and that should be virtually eliminated. The act establishes some obligations for virtual elimination.
The bottom line is that we are not able to implement all of those obligations for all substances that meet those criteria; moreover, some of those obligations are redundant. I'll give you one example. We're obliged to develop a ministerial regulation and a virtual elimination plan for substances that meet these criteria; however, when a substance meets these criteria, typically what we do is add it to the Governor in Council regulation known as the “prohibition of various substances”. Well, if the Governor in Council has prohibited the use of this substance, there is not much point in also developing a requirement to do a virtual elimination plan and also have the minister promulgate a regulation. So, there are some issues, not with the underlying policy intent, but with the actual mechanics in the act.
Another issue we've started to confront more and more comes back to the explanation I gave you earlier, that the federal government addresses substances both through CEPA and through a number of product-specific statutes that are typically housed in departments other than Environment and Climate Change Canada, departments that have particular scientific expertise around the substance in question.
Again, think about the Feeds Act. The experts in agricultural feeds are the CFIA and Agriculture Canada, not Environment Canada. Health Canada has entire organizations focused on assessing and managing food, drugs, and consumer products such as baby bottles. What CEPA does is it says that if it's toxic and if the Governor in Council adds a substance to the list of toxic substances, then we have to manage the substance under CEPA, even if another statute might be the better one to use to manage the substance. I think we've effectively managed all of those substances, but we've run into some legal challenges in taking the most appropriate action.
The same thing applies to new substances. As I said earlier, the way CEPA works is that CEPA stands down if another statute provides for an equivalent pre-market notification and assessment requirement that covers both environment and health risks. A number of statutes, however, were developed pre-CEPA and may require pre-market notification and assessment of health risks, but not of environmental risks. We then have situations in which some products that are addressed under Agriculture Canada have equivalent statutory authorities, but some don't; some products that would logically be assessed by our colleagues at the Department of Fisheries and Oceans can't be managed under their statutes, so they need to undergo pre-market notification and assessment under CEPA, and a decision needs to be made by the ministers of environment and health, even though the actual work is done in another department. There's some wiring that could be sorted out, if you so chose.
Then, we have broad authority over greenhouse gases and air pollution. By most criteria, air contaminants are listed as toxic substances; all of the six greenhouse gases listed under the United Nations Framework Convention on Climate Change are listed as toxic. We can use the broad regulatory authority for toxic substances to address greenhouse gases.
We also have authority, as I mentioned, to address emissions from vehicles, fuels, and engines. We don't, however, have authority over certain types of sources. Small marine vessels, for example, remain a bit of an outlier.
As another challenge we have, we've given the example of wood stoves. We could address emissions from wood stoves because the emissions are toxic, but that would require placing a regulation on every user of a wood stove. A wood stove itself is basically an inert piece of metal. It's not toxic. At the moment, we can't regulate it because it's not toxic. It might be useful to have the authority to regulate the construction or operation of a product whose use generated or emitted toxic substances. To use the example of wood stoves, you'd be able to place a regulation on the manufacturers and importers, a couple of dozen, instead of the hundreds of thousands of users of wood stoves. It's just the way we regulate vehicle manufacturers and not every owner of a vehicle.
I sense that my time is waning.
Director General, Legislative and Regulatory Affairs, Department of the Environment
If I'm going too fast, slow me down. I'm obviously happy to answer questions after my presentation.
I mentioned earlier that some parts of CEPA are designed to codify in domestic law international obligations.
Slide 15 speaks to two of those situations, where we have a very comprehensive regime that limits disposal at sea, basically in line with the international obligations under the London protocol, which placed very significant limits on what can go into the ocean for disposal. It's largely only inert products, and then only when the government is satisfied that disposal at sea is the environmentally best or preferable option.
Similarly, we have an extensive regime that regulates and establishes a permitting regime for hazardous imports and exports in transboundary movements of hazardous waste and hazardous recyclable material.
These international regimes, however, are not static and get updated from time to time as new issues emerge. Since CEPA was last amended in a comprehensive manner, there have been two amendments to the London protocol, in 2006 and 2009, and we have not updated CEPA to keep track with and to codify those changes to the international regime.
Going to the next slide on water, I mentioned that in terms of regulating or restricting water pollution, section 36 of the Fisheries Act, which is a broad prohibition, is a powerful tool and is indeed the main tool that Environment and Climate Change Canada uses to restrict discharges into water. We enforce the prohibition, and we have regulations dealing with municipal waste water, effluents from metal mining, and effluents from pulp and paper.
However, we do have two broad sets of authorities to regulate water pollution. One is under the toxics provisions. We have developed a couple of fairly minor regulations under those authorities. Those are quite old. In the last decade or so, the main emphasis has been on the Fisheries Act.
In addition, the main way in which we use CEPA to address water pollution is that under CEPA we can regulate product content in a way that will minimize water pollution. The Fisheries Act has a broad prohibition on putting stuff in the water, but what we can do under some parts of CEPA is regulate product design and content. An example would be the phosphorus content in detergents. Again, rather than regulate how everybody uses their washing machines, we can limit the amount of phosphorus that goes into detergents at the product design and production level. Phosphorus is a problem in fresh water because it can generate excess growth of algae and muck up the ecosystem.
In addition, as my colleague mentioned, we have broad authority to establish guidelines, which has been done extensively, both from a health perspective and from an environment perspective, and in many cases jointly with provinces and territories, resulting in guidelines that are issued under the auspices of the Canadian Council of Ministers of the Environment.
The final set of authorities I'll speak to are described on slide 17, and there are two. One is emergencies and one is the federal house.
Under emergencies, as the slide indicates, the government has authority to require the preparation of environmental emergency plans. We have a set of regulations that require the development of plans by a wide range of facilities that are using an extensive list of substances, the release of which could be problematic. There's a strong focus on prevention of pollution and on ensuring that potential sources of inadvertent release are well set up to respond to, manage, and mitigate those releases as effectively as possible.
In addition, scattered throughout the act are various authorities that essentially allow the Minister of Environment to intervene in the case of an emergency. The minister can require somebody who has been responsible for a spill or other kind of emergency to take action and incur costs. The minister can take action herself, or can compel the government to take action and then recover the costs of taking actions, which of course in some cases may be the most expeditious thing to do.
One technical issue we have is that in some cases you have an emergency; something gets spilled in the water, let's say. There's a bunch of things you could do, but you're not sure which one will work best. Ideally, if you're a scientist, you want to replicate the scenario in a controlled manner, which could mean putting a deleterious substance in the water. Even though you're doing the research for good reasons, that would violate the prohibition in the Fisheries Act for depositing deleterious substances.
Although we have a robust regime that allows us to respond to emergencies, we do have this challenge where in certain types of responses, we might be violating other statutory authorities. That is some kind of wiring that could be addressed in your review of CEPA.
As I noted earlier, we have authorities to address actions on the part of the federal house, although to date these authorities have been used quite sparingly. I think we have two regulations and one code of practice.
We also have a couple of other authorities that allow the government to take action to address specific sources of air pollution and water pollution that cause problems in a transboundary manner if, say, a facility in southern Ontario is causing air pollution and is affecting air quality in Michigan. These authorities have never been used. We have instead established nationwide regimes for water pollution under the Fisheries Act and air pollution under CEPA.
The final slide I'll speak to is the one with a bar chart. The main message is one that I've given to every new minister in the last 10 years and to our colleagues at Treasury Board.
With all excuses to our friends in other departments, like Transport Canada, I think Environment Canada and Health Canada are in a relatively unique situation from a regulatory perspective. The simple example I give is that no new mode of transportation has been invented in the last century. Of course we need to continue to update our transportation regulations, but we're not dealing with new modes of transportation. On the other hand, from an environmental protection perspective, we have not yet assessed all substances that are in use in Canada. Inevitably, we're going to find more that need to be managed. Inevitably the government, regardless of its colour or stripe, is going to decide that in some cases, regulations are warranted, or at least some kind of intervention is warranted.
Similarly, we're starting to implement the federal, provincial and territorial air quality management system that contemplates the federal government setting baseline requirements for numerous air pollutants.
Finally, of course, lots of potential action on greenhouse gas could be taken by the federal government. There are a lot of issues that have not yet been fully understood, assessed, or managed.
You see this growth in this chart. What I'm suggesting is that regardless of the particular predilection for intervention or non-intervention by whatever government is in power, we're likely to see a need to intervene on additional issues over time.
One other point I'd make is that this chart significantly understates the level of activity. This counts discrete initiatives, discrete instruments. A lot of what we do is to amend regulations. I gave you the example earlier of the prohibition of various substances regulations. It's one regulation that covers—I don't have the exact number with me—about a dozen substances. As we identify other substances that need to be essentially prohibited, instead of promulgating a new regulation, we'll add that substance.
Similarly, we regularly update the regulations that address air emissions and vehicle emissions from, for example, light duty vehicles. We're remaining in lockstep with our colleagues in the United States. Each time it's not a new regulation, so it doesn't count in the bar chart here, but it's a significant new activity undertaken by the two departments that adds an increasing level of protection to Canadians and the environment.
With that rapid and broad tour of the statute, I'll stop. As I said, we're both happy to answer any questions that you might have now or in subsequent sessions.
Liberal
The Chair Liberal Deb Schulte
Thank you very much to both of you for the detailed explanations and information. I like the fact that you identified where some of the challenges are that we can delve into as we move forward.
We're into questions. Our first questioner is Mr. Fast.
Conservative
Ed Fast Conservative Abbotsford, BC
Thank you very much to both of you for appearing before our committee.
It's fascinating information that you've shared with us. Quite frankly, we would have loved to have you for even longer in terms of spelling out not only the challenges, but also the many steps that have been taken to address the environmental challenges we have.
I notice that on page 10 of your deck you mention we have a robust enforcement regime and that there have been recent amendments that have increased fines and added new sentencing and enforcement tools. That's good news. I'm assuming there's not a lot additional enforcement that you're looking for. Is that a correct characterization?
Director General, Legislative and Regulatory Affairs, Department of the Environment
Yes, I think that's fair.
The previous government introduced what was known as the environmental enforcement act in 2009. That introduced increased fines. It introduced, for the first time in the world, the obligation to look at both use and non-use values of the environments that were impaired by a contravention. It introduced a requirement for a public registry of corporate convictions. It required that fines be paid into the environmental damages fund so that they could be used to protect the environment.
If you pushed hard, there are probably a couple of very detailed limitations that some enforcement officials have found that restrict their ability in certain cases. However, broadly speaking, we have a fairly new and modern regime which provides a wide range of tools that allow us to respond both in a measured way and also in a very significant way, if warranted.
Conservative
Ed Fast Conservative Abbotsford, BC
I think you'll find that some of the members at this table will say we have a robust enforcement regime, but has it been used robustly?
I'd be interested to hear about how active Environment Canada has been in actually using the tools that are available to them. I also note that it's not only prosecutions that are available to you, and assessment of fines, but you also have compliance orders. I assume those are used even more often to address situations where perhaps the heavy hand of the law is not appropriate.
May I hear your comments?
Director General, Legislative and Regulatory Affairs, Department of the Environment
Environment and Climate Change Canada has a separate enforcement branch specifically organized to be separate from the program so as to give it as much marge de manoeuvre as possible, and it does indeed use the various tools in the way you describe. You can envisage a pyramid where the most common response is a fairly light one, such as for a one-time offender who just needs a nudge to come back into compliance, all the way up to prosecution, but indeed there have been a number of prosecutions under CEPA and under the Fisheries Act and other statutes.
One example that I can give you is from just last year in Alberta when a distributor of oil and gas was fined for one of the new regulatory requirements for hydrochloric acid. I'd be happy to send the committee a record of various enforcement interventions that we have undertaken, if that would be of interest.
Conservative
Ed Fast Conservative Abbotsford, BC
It would be very helpful, and not only the heavier enforcement measures but some of the lighter ones that have been implemented.
Perhaps I could ask another question as well. You mentioned the six greenhouse gases that are regulated, but there's a whole host of non-greenhouse gas emissions that are also regulated by you that are created by the burning of fossil fuels. To what degree has progress been made in regulating those and decreasing the presence of those within our airsheds across Canada, say, over the last 10 years?
Director General, Legislative and Regulatory Affairs, Department of the Environment
The two departments under CEPA have regulated a couple of categories of sources of air pollution. One is vehicles, fuels and engines, major sources of air pollutants that in and of themselves are harmful to human health and the environment. Also, many of them are precursors to smog, which is a significant health problem. In addition, we promulgated regulations for certain emissions from certain products. We're regulating the design, for example, of various paints and various coatings to limit the extent to which they contain volatile organic compounds that are released after they've been applied. My colleague referred to the AQMS, the air quality management system, where the government is still in the process of developing the various baseline requirements that the system calls for at a federal level.
Liberal
The Chair Liberal Deb Schulte
Thank you very much. I'm sorry to have to stop that, because it is interesting questioning.
Liberal
The Chair Liberal Deb Schulte
I know, I'm hearing you. We might think about changing it, but at the moment, we've made a commitment to stay with this.
Mr. Amos.
Liberal
William Amos Liberal Pontiac, QC
Thank you, Madam Chair, and thank you to Mr. Cooper and Mr. Moffet for a comprehensive presentation.
The committee was unanimous in agreeing to study this legislation with a view to making recommendations. I appreciate where the department is coming from in wanting to explain the nature and the scope of the legislation, what it permits in terms of regulatory measures and what it does not.
I'll start by simply asking, would the department with the authorization of the minister be willing to provide this committee with options and reflections upon opportunities for legislative and regulatory reform in light of the fact that the recommendations that were made back in 2006 and 2008 were not acted upon by the previous administration? That would be helpful, I feel, to this committee. Certainly times have changed in the past decade and we've come upon new substances that were previously not contemplated by the legislator or the department. I wonder if that would be something the department would consider.