Good afternoon.
Thank you, Mr. Chair, for the invitation to speak to you about this important matter today.
My name is Muhannad Malas. I'm the toxics program manager at Environmental Defence.
Environmental Defence is a leading Canadian environmental advocacy organization that has for over 30 years worked with government, industry and communities to safeguard our fresh water, decrease Canadians’ exposure to toxic chemicals and build a clean economy.
Environmental laws are only as effective as their enforcement. In the case of the Canadian Environmental Protection Act, proper enforcement means holding accountable polluters who put the health of Canadians and their environment in harm's way.
In 2015, Volkswagen was caught installing a cheat device in more than 11 million diesel cars worldwide. That device lowered emissions when the vehicle was operating in test mode, but once on the road, they emitted up to 35 to 40 times the permitted levels of harmful nitrogen oxides, a pollutant associated with many deaths, according to Health Canada, as well as cancer and other illnesses.
In Canada, 128,000 of these rigged vehicles were imported and sold during a period of seven years.
For what is arguably one of the worst environmental crimes ever committed in Canada, the government’s enforcement, by any reasonable measure, was hesitant, weak and inadequate.
After launching its investigation in September 2015, it took more than four years for the federal government to charge and prosecute the company. This is despite a guilty plea agreement between Volkswagen with the U.S. federal authorities in January 2017 that precluded the company from retracting its admission of guilt in other jurisdictions. This is also despite testing done in Canadian government labs in Ottawa being used as evidence by the U.S. government.
Troubled by the lack of public progress made by the government, in July 2017, just less than two years after the investigation launched, I submitted a CEPA section 17 request to the Minister of the Environment and Climate Change to open a transparent investigation of Volkswagen’s violations. Citing the government’s ongoing investigation, the minister refused to investigate three of the violations I outlined in my request, including the import and sale of rigged vehicles. This essentially meant that the government was able to continue its investigation without the obligation to provide progress updates.
For the investigation that the minister agreed to open, which covered the continued sale of 2015 model cars that received a half-fix, I received 12 progress update reports over the following three years that offered little to no meaningful information about the government’s progress.
In the end, after more than four years, Canada reached a plea deal with Volkswagen that appeared to be pre-negotiated prior to any charges being laid and fined the company $196.5 million. While this is the largest fine ever levied in Canada, the amount pales in comparison to what the company paid in the U.S. and could have been much higher had the charges not been packaged in a way to reduce the maximum penalty. By contrast, the U.S. charged, prosecuted and fined Volkswagen more than $10 billion within 20 months.
In our view, the federal government’s failure to provide updates about its progress within the four plus years of its investigation reflects a failure to respect the spirit and intent of CEPA and the public participation rights it grants Canadians.
The Volkswagen investigation underscored a number of glaring problems in the enforcement of CEPA that were highlighted in this committee’s 2017 review of the act.
One key problem, for example, is that CEPA's citizen enforcement provisions, which allow concerned citizens to bring an environmental protection action, EPA, against a person or company that has committed an offence, are overly onerous and ridden with barriers that are effectively insurmountable.
For example, in order for a citizen to bring an EPA, they must first request an investigation by the minister and then demonstrate that the minister failed to conduct the investigation or that their response was unreasonable. Additionally, a concerned citizen must demonstrate that a violation is responsible for “significant harm to the environment” and run the risk of having to pay substantial cost awards if they are unsuccessful. As a result of these barriers, no citizen suits have been commenced or completed since the enactment of CEPA in 1999.
As the government proceeds with developing a bill to modernize CEPA, as promised in the government’s Speech from the Throne, we urge Parliament to adopt the committee’s 2017 recommendations to strengthen CEPA in a manner that removes these barriers and improves public participation in the enforcement of the act.
Thank you very much for your time. I look forward to your questions.