Environment Committee on Jan. 30th, 2023

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Ms. May.

Go ahead, Mr. McLean.

[Greg McLean, Conservative, Calgary Centre, AB]

Perhaps I could have further explanation from the member on how this weakens the act. We've already gone through intergenerational equity, non-regression, etc., and how these terms may weaken what's already there. I thought everything we were doing here was actually strengthening our environmental protection mechanisms.

If I could have clarification on that from the member, and subsequently from the officials involved, I would appreciate it.

[The Chair, Liberal, Francis Scarpaleggia]

Go ahead, Ms. May. Please be brief.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Yes.

The fundamental way in which Bill S-5 weakens environmental protection is in the elimination of a single schedule at the end of the act of a list of toxic substances. Most of my amendments for the rest of my time in this committee will be to try to defend the schedule of toxic substances as a single list. This is the largest weakening, because it undermines the constitutional foundations of the act as determined by the Supreme Court of Canada in the Hydro-Québec case.

In this case, virtual elimination allows for substances to be reduced to such a level that there's a “cessation of the intentional production, use, release, export, distribution”, and also a focus on how these products may be created as by-products. I agree that if you ban them altogether, you don't need a virtual elimination list, but the virtual elimination list has been a way in the past of ensuring that toxic chemicals are scheduled for their virtual elimination and are steadily reduced over time.

I hope that helps.

[The Chair, Liberal, Francis Scarpaleggia]

Mr. McLean, I don't know which official you would like to address this—Mr. Moffet or Ms. Farquharson.

[Greg McLean, Conservative, Calgary Centre, AB]

Whoever chooses to can do it.

[The Chair, Liberal, Francis Scarpaleggia]

Who would like to jump in?

[John Moffet]

Perhaps I can start.

The government did adopt a concept of virtual elimination, both in the toxic substances management policy and in the statute when it was amended in 1999. Since then, however, the virtual elimination regime in the act has proven to be unworkable and has had almost no impact on decision-making in the federal government or on actual prevention of risks.

In Bill S-5, the government is proposing to replace that regime for two reasons. The first, as I said, is that it has proven to be not workable for a variety of reasons. Second, the government also intends to expand the underlying obligation. The underlying obligation for virtual elimination is to essentially say that there are a number of substances that are problematic. Those are toxic substances. Some are particularly of concern and need to have particularly stringent risk management actions taken to achieve virtual elimination. At the time the virtual elimination concept was developed, that subset was confined to substances that are persistent, that last a long time and that bioaccumulate in living organisms.

In the last 20 to 30 years, we've identified a number of other sets of substances that are equally of concern. We've already discussed in this committee the concept of mutagenicity, carcinogenicity and so on. Bill S-5 proposes to replace this narrow concept of virtual elimination of persistent bioaccumulative substances with a much broader authority to identify substances of highest concern to give some guidance in the statute and then require the ministers to develop, by means of regulation, the broad criteria to determine the substances that will be on that list and that therefore require more stringent risk management than other toxic substances.

The goal is actually not to weaken but instead to broaden this category and also to avoid some of the unintended challenges that arose with respect to the implementation of the original virtual elimination regime and to give the government broad authority to bring in very stringent protection on that broad subset of substances.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Next is Ms. Taylor Roy, followed by Mr. Weiler.

[Leah Taylor Roy, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

I think the explanation answered my question. I was concerned about weakening it, but it appears that we're actually broadening it and strengthening it, so I'm fine.

[The Chair, Liberal, Francis Scarpaleggia]

Go ahead, Mr. Weiler.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Mr. Chair.

Separate but related to that was the mention by Mr. Moffet that the virtual elimination system was unworkable due to a number of factors. I was hoping, for the sake of our committee, that he could expand on what those factors were.

[John Moffet]

I can try to give you a brief explanation.

In fact, previous iterations of this committee have reviewed this issue a number of times. All came to the conclusion that the regime is unworkable. That includes the committee's most recent review of CEPA and a review of a private member's bill about 10 years ago.

Essentially, the notion of virtual elimination, of trying to eliminate the presence of the substance, is not the concern; the concern is that when you introduce a concept like that, you have to define it and you have to require specific actions. In the statute at the moment, you have to develop a particular kind of regulation over and above the section 93 obligation to regulate, so we have this obligation to develop two regulations; however, if you're prohibiting a substance, there's no point adding a second regulation.

We also have defined virtual elimination in a way that refers to the quantification of the substance or the ability to measure the substance. In some cases, we can monitor emissions of the substance and identify what the lowest level of quantification is, but in a lot of cases, substances that we're worried about are used diffusely. In other words, they might be part of the treatment of millions of shirts and come off in the wash. We can't quantify the emissions from the use of the substance, so the way in which we defined virtual elimination meant that we could not comply with the law and we could not develop the regulation that was required by the law.

Rather than adding substances that were persistent and bioaccumulative to a schedule, we simply added them to the regular schedule of toxic substances and then took significant action, such as prohibitions. We achieved the goal, but we were not able to comply with the specific provisions in CEPA in 1999, which is why there are so few substances on this list at the moment.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Go ahead, Mr. Kurek.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Thank you very much.

We heard in testimony that some of the challenges that industry faces, which were also highlighted by environmental groups, are the administrative burden and the need for effective regulations—not just having an additional list with the ability for things to be added—and some of the challenges as science evolves and things change.

I wonder if the officials could comment with regard to this amendment. It talks about creating an additional list, and there's a possible administrative burden associated with that. It has been referenced that it would be taking away from other parts of the act that attempt to deliver on some of the intent here.

Mr. Moffet, would you or one of your colleagues be able to comment on that?

[The Chair, Liberal, Francis Scarpaleggia]

Is that a question for Mr. Moffet?

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Yes.

[John Moffet]

I can comment on the amendment in clause 12, which is to eliminate the whole virtual elimination regime. That requires the creation of a second list. However, as I just explained, in Bill S-5 we are also proposing a second list. If you will, it's a list of substances that, because of certain characteristics to be defined in regulation, need to be identified, put on a list and subjected to very stringent risk management actions.

At the officials level, we have advised that we're not concerned about the administrative burden, either on government or on industry, associated with that list. In fact, what we want to do is define very clearly for government decision-makers and for industry precisely what those criteria would be that would determine whether a substance goes on that list. That would provide certainty to industry. If a substance is on that list, again, there's also certainty about the kind of risk management action that you can expect if you're in the business of using or creating that substance.

It's our view that we'll be providing more certainty to industry about a broader range of substances than is the case at the moment.

[The Chair, Liberal, Francis Scarpaleggia]

Go ahead, Mr. McLean.

[Greg McLean, Conservative, Calgary Centre, AB]

Mr. Moffet, I need something addressed that Ms. May raised.

The amendments currently in front of us will change the constitutional foundation of the act. You mentioned something about section 93 and its duty to regulate. Is that what we're talking about here? Does this change the constitutional foundation?

Could you give us a quick briefing—in two minutes or less, please—about the Hydro-Québec court case that Ms. May referred to and how this amendment would impact the constitutional foundation of this act?

[John Moffet]

I need to clarify that I'm not here as a lawyer, nor are we providing legal advice to the committee. However, the Quebec hydro case has been public for decades, and it has been fairly well reviewed and understood.

In its essence, the Supreme Court.... First of all, there were a number of different decisions on the part of different members of the court that led to the court deciding that the particular use of a regulation under part 5 of the act was constitutional. Without getting into all of the details, I think the general thrust of the decisions that supported part 5 were that the act establishes a process that requires the government to identify particularly significant risks, starting with monitoring, information gathering and a formal risk assessment, and then a conclusion goes to the Governor in Council that leads to the listing of the substance and then the development of a regulation to address that risk. There is a gradual process of identifying really significant risks, which then justifies the federal government's stepping in and taking action to prevent those risks to the Canadian environment as a whole and to the health of Canadians as a whole.

Again, it's our view that we're not changing the nature of that process; in fact, we are attempting to refine that process by adding additional authority to identify specific substances that are of particular concern and that merit a particular track of risk management.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

I have Ms. Collins. Did I miss anybody?

I have Ms. Collins and then Ms. May, briefly.

[Laurel Collins, NDP, Victoria, BC]

I appreciate Mr. Moffet's comments, particularly about the issues around quantification, but my understanding of this amendment is that it fixes that. It reintroduces the concept of virtual elimination, but without some of the problems in the previous act.

I have a question for Mr. Moffet. In particular, he mentioned moving from this regime to the regime of what is highest risk. In particular, he mentioned CMR, which refers to “carcinogenic, mutagenic and a risk to reproduction”. I want to hear some clarity around how those concepts are incorporated into the new regime.

[John Moffet]

The regime established under Bill S-5 would require the ministers to take particular actions to risk-manage substances that meet certain criteria. The act provides authority to articulate those criteria and put them in regulation. The bill provides direction about what those criteria need to include at a minimum. It explicitly references the concepts of carcinogenicity, mutagenicity and risks to reproductive processes.

In addition to the initial approach—which, as I described, focused exclusively on persistence and bioaccumulation—we would now be obliged to develop a regulation that also develops criteria associated with those three other concepts. It would then provide the authority to identify additional criteria that may be identified and that may emerge from domestic or international science over time as being relevant to define a subset of substances that are of particular concern and that merit particular significant risk management actions.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Go ahead, Ms. May, very briefly—

Sorry; are you through? Do you have more?