Environmental Protection and Enforcement: appearance before the Standing Committee (November 4, 2020)

Chemicals Management Plan

Q. What is the government doing to protect the environment from toxic substances?


Enforcement (Volkswagen, Mount Polley, Teck)

Q. What is the current status of the laying of charges relating to the Teck Coal Limited Fording River and Greenhills Mining Operations?

ECCC’s Enforcement Branch is in the final stages of an investigation of alleged leaching of selenium from waste rock into the Elk River by Teck Coal Limited’s Fording River Operations, and the effect of that leaching on fish. ECCC continues to support the Public Prosecution Service of Canada as they review ECCC’s investigative material as part of the charge review and decision process.

No further information can be provided as this case is still under investigation

Q. What is the current status of the laying of charges relating to the Mount Polley incident?

ECCC, Fisheries and Oceans Canada, and the British Columbia Conservation Officer Service carried out an extensive joint investigation in relation to alleged offences that occurred on August 4, 2014, pursuant to the federal Fisheries Act.

On April 2, 2019, the Mount Polley Integrated Investigation Task Force delivered its Report to Crown Counsel to the Public Prosecution Service of Canada (PPSC). The PPSC, which is leading the prosecution team, is continuing the charge assessment process. They are being supported by Crown Counsel from the British Columbia Prosecution Service, ECCC, Fisheries and Oceans Canada, and the British Columbia Conservation Officer Service.

ECCC continues to support the Public Prosecution Service of Canada as they review ECCC’s investigative material as part of the charge review and decision process.

No further information can be provided as this case is still under investigation

Q. Why was Volkswagen fined?

German automaker, Volkswagen Aktiengesellschaft (Volkswagen AG), was ordered to pay an unprecedented fine of $196.5 million after pleading guilty to 60 counts of contravening the Canadian Environmental Protection Act, 1999. The charges relate to unlawfully importing nearly 128,000 vehicles that were equipped with a defeat device in contravention of prescribed vehicle emission regulations, and, in addition, providing misleading information to Environment and Climate Change Canada.

Testing completed at Environment and Climate Change Canada’s (ECCC) Transportation Division vehicle testing facility indicated that emissions from the affected vehicles, under certain conditions, could sometimes be up to 27 times higher than the prescribed standard set out in regulations.

These charges are the result of a complex, methodical and thorough investigation initiated in September 2015. Over the course of the investigation, Environment and Climate Change enforcement officers gathered substantial evidence from foreign and domestic sources.

Q. Why did this investigation take years here but only months in the United States?

The legal and regulatory environments in Canada and the United States (U.S.) are very different. Court settlements and/or fines in the U.S. cannot be automatically replicated in Canada.

In general, the length of an investigation depends on the complexity of the situation and the amount of information that needs to be gathered and analyzed to establish proof of an offence. It is not unusual for an investigation of this nature to take years to complete.

ECCC’s investigation was thorough and proceeded in a comprehensive and methodical manner. This was a complex case involving a number of domestic and foreign organizations, and a number of potential offences under the Canadian Environmental Protection Act (CEPA). Investigators needed to take the necessary time to gather sufficient evidence. There was also an international element to this investigation, which in some cases required international information-sharing agreements. Time was needed to analyse a massive amount of information and to gather relevant evidence. The Public Prosecution Service of Canada determines what charges can be sustained and it has the sole discretion to decide to pursue a prosecution.

Canadians can be confident that ECCC enforcement officers are deeply committed to enforcing the laws and regulations that protect Canada’s environment and wildlife. When enforcement officers find sufficient evidence of violations, they take action and they do not hesitate to enforce the law.

Q. Is the Government of Canada satisfied with this outcome?

This fine is the largest penalty ever levied in Canada against a company for an environmental violation. In fact it is 26 times higher than the next largest fine. It reflects the gravity of the offence.

The outcome of this case demonstrates that companies will be held accountable for contravening Canadian laws that protect the environment and human health.

Q. Why wasn’t the fine higher? In the U.S., the fine was a $2.8 billion criminal penalty or $4745 per vehicle. Why were the fines so much higher in the United States? (590,000 vehicles)

It is important to note that penalties are based on precedents. This result has raised the bar on environmental fines in Canada.

It is difficult to compare the situation in the U.S. with that in Canada. These are different jurisdictions with different legislation and legal processes.

Environmental Damages Fund and the Volkswagen AG Fine

Q. What is the Environmental Damages Fund?

Q. How much did the EDF receive from the VW award?

Q. How is the VW award being spent?

Q. What is the status of funding decisions?


What is the status of methane equivalency agreements with the provinces of B.C., Alberta and Saskatchewan?

The federal methane regulations do not apply in the provinces of Alberta, British Columbia and Saskatchewan as methane equivalency agreements are in place with each of these provinces and the Governor-in-Council has approved orders to stand down the federal regulations in Alberta, British Columbia and Saskatchewan.

In early November 2020, Environment and Climate Change Canada expects to publish final equivalency agreements and Orders-in-Council that stand down the federal methane regulations in Alberta and Saskatchewan. A separate equivalency agreement and Order-in-Council for British Columbia was published early this year.

The equivalency agreements are for a defined period. After the end dates the federal regulations will re-apply, there is no built-in renewal of these agreements.

Why did the federal government agree to stand down the federal regulations in the first place?

Equivalency agreements represent a flexible approach that enable each province to design its own climate change regulations in a manner that reflects its considerations, provided it has equivalent or better emission reductions outcomes and adequate legal structures.

To determine equivalency over the period of each agreement, Environment and Climate Change Canada modeled the greenhouse gas emission outcomes of the federal regulations and compared them with the emissions allowed under the provincial regulatory approach.

In reaching equivalency agreements with Alberta and Saskatchewan, each province strengthened its requirements for the oil and gas sector. With these changes, the Government of Canada is pleased that the environmental outcomes of Alberta, Saskatchewan and British Columbia’s methane regulations and directives are now considered equivalent to the federal methane regulations for the duration of each agreement.

What would it take to renew these agreements?

There are a number of requirements to establish an equivalency agreement with an interested province. Provincial regulations must deliver equivalent environmental outcomes and meet a number of other conditions such as having adequate legal structures for public investigations on alleged offences.

Supplemental 1: Federal Methane Regulations

On January 1, 2020, the first requirements under the federal methane regulations came into force. Canada’s methane regulations require oil and gas operators to follow specified procedures to address and repair leaks, measure emissions and install technologies that will reduce emissions.

The Government of Canada’s oil and gas methane regulations are an important part of the country’s climate plan. They will reduce pollution in the oil and gas sector, improve air quality, and drive innovation in the industry. Reducing methane emissions from Canada’s oil and gas sector has been demonstrated to be one of the lowest-cost actions to reduce greenhouse gases from the energy sector. These details were published in 2018 alongside the federal methane regulations as part of the regulatory impact analysis.

Supplemental 2: What is Canada trying to achieve with the methane regulations? Are there any complementary measures?

Canadians have made it clear that action on climate change must be a top priority for the government. Canada remains committed to reducing methane emissions from the oil and gas sector by 40% to 45% below 2012 levels by 2025 and the federal methane regulations are a key element of this commitment.

Methane emissions and methane reductions which result from the federal methane regulations will depend, in part, on the level of oil and gas activity (number of wells, volume of production, etc.), which is largely a function of economic conditions. Oil and gas production in Canada is highly sensitive to changes in global prices.

Other Government of Canada measures will provide incentives for additional reductions of methane emissions, including the Emissions Reduction Fund and the upcoming Clean Fuel Standard. The Emissions Reduction Fund is a $750 million repayable loan program to assist conventional and offshore oil and gas companies to reduce their greenhouse gas emissions where a portion of these loans may be convertible to non-repayable grants.

Oil Sands Monitoring Program

Q. Who is responsible for delivery of the Oil Sands Monitoring Program?

Q. Has there been a reduction in environmental monitoring of the oil sands region?

Q. What is being done to increase Indigenous involvement in environmental monitoring of the oil sands region?

Backgrounder (with minor revision from March 2020 note)

Renewal of CEPA

Q. Why is CEPA important?

The Canadian Environmental Protection Act, 1999 (CEPA) is one of Canada’s core environmental laws addressing pollution. The Government relies on it to deliver many of the environmental and health protection programs administered by Environment and Climate Change Canada and Health Canada such as those aimed at reducing emissions from vehicles and engines that affect climate change and air quality, managing chemicals, avoiding environmental harm from disposal at sea and responding to environmental emergencies.

CEPA also provides the legislative and regulatory basis for the domestic implementation of Canada’s international obligations under various bilateral and multilateral environmental agreements. For example: the Canada-United States Air Quality Agreement; the Basel Convention (related to the transboundary movements and disposal of hazardous wastes); the London Convention and the London Protocol (related to marine dumping); and, the Rotterdam Convention (related to prior informed consent for certain hazardous chemicals).

Q. Why is the government considering changes to CEPA?

CEPA is a large, complex and powerful law that imposes requirements on industry and authorizes action on a wide range of environmental and health risks (e.g., chemicals, air and water pollution, wastes, emergencies). However, the Act has not been substantially amended in twenty years.

Parliament has reviewed CEPA three times, with each review concluding that the Act is fundamentally sound; that is, the legislative framework is strong and flexible and enables the use of multiple measures to address a wide range of issues. But, it is in need of improvement and modernization in some areas.

Strengthening CEPA is a Government priority – this commitment was most recently reiterated in the 2020 Speech from the Throne.

We look forward to having an in-depth discussion on proposals to reform CEPA. In the meantime, we are committed to enhancing environmental protection, and to continuing to improve the strong environmental protections that are already in place in Canada.

Q. Will the government address the recommendations made in the Committee Report?

As you know, this Committee conducted a parliamentary review of CEPA in 2016-2017. The Committee concluded that CEPA needed to be modernized, and almost 90 per cent of the 87 recommendations called for law reform.

In its detailed formal response, the Government agreed changes are needed to modernize and improve CEPA, and committed to “work towards legislative amendments as soon as possible in future Parliamentary sessions”. The Government also committed to strengthening various policy and program approaches in the short term.

The Departments are currently considering amendments to CEPA to address the issues raised by this Committee, as well as issues raised by stakeholders and departments throughout the administration of the Act.

Q. How has Covid-19 impacted the work to reform CEPA?

In July 2020, stakeholders were re-engaged on whether views on CEPA reform proposals have changed as a result of the COVID-19 pandemic. Work to amend CEPA considers their latest feedback.

Q. What is the expected timing of a bill to reform CEPA?

Timelines are up to the Government and influenced by a number of factors, for example the Government’s broader legislative agenda.

Q. Another review of CEPA was triggered in 2020 pursuant to s. 343(1) of CEPA. Do you have any thoughts on this?

It is at the discretion of Parliament whether to designate or establish a committee to conduct the review triggered by the Act. Consideration may be given to various factors, including the fact that a review was concluded just three years ago and the government has committed to reform CEPA (taking into account the recommendations of the three previous reviews).

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