Canada Overhauls Assessment of Toxic Substances in CEPA Update
On June 13, 2023, the Strengthening Environmental Protection for a Healthier Canada Act received royal assent. The act, which revises Canada’s toxic substances law and enshrines a right to a healthy environment, is the first significant revision to the Canadian Environmental Protection Act (CEPA) since its passage in 1999.
The act implements some, but not all, of the 87 recommendations made by the House of Commons Committee on Environmental and Sustainable Development in 2017. Key provisions of the act, including a new chemical management plan and implementation of the right to a healthy environment, are unspecified and will be determined by future regulations.
Revisions to Toxic Substances Law
One of the most important changes in the act is the requirement that the government develop a new chemical management plan within the next two years. The plan must identify substances that should be prioritized for assessment, specify initiatives that should be prioritized by Parliament to control risks posed by substances, promote alternatives to vertebrate testing, and be reviewed at least once every eight years. To avoid harmful substitutions—when a problem chemical is replaced by a chemical that itself becomes a problem—the ministers are instructed to consider whether it would be more advantageous to assess substances by class than individually.
In 1999, CEPA required the prioritization of substances in commerce for assessment. According to a backgrounder by Environment and Climate Change Canada, the “resulting process to assess these substances has largely been completed.” However, a new plan will address “new chemicals being developed, new uses for existing chemicals, increasingly complex supply chains, and emerging science about risks.”
The act also institutes a new classification system for assessed chemicals. CEPA originally contained two lists of hazardous chemicals: a List of Toxic Substances in Schedule 1 and a Virtual Elimination List. The act scraps the Virtual Elimination List, which was almost never used, and divides Schedule 1 into Parts 1 and 2. Part 1 contains 19 chemicals prioritized for total, partial, or conditional prohibition, including PFOS and DDT. Part 2 contains all other substances deemed toxic, which will be prioritized for pollution prevention. The 132 substances initially placed in Part 2 include asbestos and manufactured plastic items.
As an alternative to Parts 1 and 2 in Schedule 1, the act creates a watch list for “substances that the ministers have reason to suspect are capable of becoming toxic or that have been determined to be capable of becoming toxic.” The backgrounder states that the list “will help importers, manufacturers, and Canadian consumers to select safer alternatives and avoid [harmful] substitutions.” Any person can file a request that the ministers assess a substance’s toxicity or capability to become toxic.
Other changes introduced in the act include requiring the ministers to consider “whether exposure to the substance in combination with exposure to other substances has the potential to cause cumulative effects” and “whether there is a vulnerable population or environment in relation to the substance” when interpreting the results of an assessment; requiring a rationale to support requests for the confidential treatment of business information; and requiring that an explanation be provided if an assessment has not been completed after two years.
Right to a Healthy Environment
Also included in the act, for the first time in Canadian legislative history, is a “right to a healthy environment.” The government has two years to “develop an implementation framework to set out how the right to a healthy environment will be considered in the administration of this Act.” The framework must “elaborate on” the act’s principles, such as environmental justice, non-regression, and intergenerational equity. However, the right is not absolute. The implementation framework must “determine[e] the reasonable limits to which it is subject.”
Canadian representatives have questioned whether the right to a healthy environment will be enforceable. The act does not amend section 22 of CEPA, which allows individuals to bring an “environmental protection action” in limited circumstances against persons who commit an offence under CEPA. The Senate Committee on Energy, the Environment, and Natural Resources stated that “the right to a healthy environment cannot be protected unless it is made truly enforceable,” noting concern that Section 22 “contains too many procedural barriers and technical requirements that must be met to be of practical use” when it comes to enforcement.
