Regulatory responsibilities and processes

Environment and Climate Change Canada (ECCC) is one of the federal government’s most active regulators. The Department’s regulatory portfolio addresses such issues as toxic chemicals, air pollutants, greenhouse gas emissions, effluent, migratory birds and species at risk.

The federal regulatory process is governed by legal and policy frameworks. The Statutory Instruments Act provides the main legal framework. All statutory orders and regulations are subject to the requirements of the Statutory Instruments Act. The Cabinet Directive on Regulation sets out expectations and requirements in the development, management, and review of federal regulations.

In order to ensure that regulations result in the greatest overall benefits to current and future generations, federal regulations are guided by the following four principles:

• the regulatory process is modern, open, and transparent
• regulatory decision-making is evidence-based
• regulations support a fair and competitive economy
• enforcement of laws and regulations is done in a fair, predictable and consistent manner

The development of regulations within ECCC typically involves policy approval (either by the Minister or Cabinet, depending on the issue), consultations with interested parties throughout the regulatory development cycle (including with Indigenous peoples), preparation of drafting instructions, economic analysis, enforcement advice, legal advice, and drafting of the actual text of the regulation. Publication of proposed regulations in the Canada Gazette, Part I, provides a formal opportunity for Canadians to provide input on proposed regulatory text. Final regulations are published in the Canada Gazette, Part II.Along with officials within the Department, other parties within Government are involved in the development and approval of regulations.

• the Minister sets overall policy guidance and approves the details of specific regulations. For some issues, the Minister may issue a regulation under their own authority. Most regulations, however, are issued by the Governor in Council, acting on the recommendation of the Minister. The Treasury Board acts as the Governor in Council for this purpose
• the Treasury Board Secretariat reviews all proposed regulations to ensure that the analysis that the Department provides to support each regulatory proposal is consistent with the requirements in the Cabinet Directive on Regulation and will enable Treasury Board members to make informed decisions
• the Department of Justice (DoJ) provides legal counsel, who help departmental officials design regulations that are supported by relevant statutory authorities. The DoJ also provides the drafters who prepare the legal text of regulations
• the Privy Council Office is responsible for receiving regulatory submissions, examining them in consultation with the DoJ, and registering regulations, once approved
• the Governor General, as the representative of the Crown, signs into law the regulations approved by the Governor in Council (Treasury Board)
• the Department of Public Services and Procurement Canada publishes the Canada Gazette, the official newspaper of the Government. Proposed regulations and supporting documentation are published in Canada Gazette, Part I. Final regulations are published in Canada Gazette Part II
• the Standing Joint Committee for the Scrutiny of Regulations, pursuant to the Statutory Instruments Act, examines each regulation after it has been published to ensure that there is adequate statutory authority for each requirement in the regulation

The timeframe for developing a regulation is on average 18 to 24 months, but can vary considerably. The duration of consultations is one of the main factors affecting regulatory development timelines.

ECCC’s regulatory activities include

Issuing orders
Issues orders to formalize decisions made by the Minister or the Governor in Council to update statutory lists based on the results of scientific assessments. Each year, for example, the Minister typically receives numerous assessments of toxic substances, leading to the need to decide, in conjunction with the Minister of Health, whether or not to recommend that the GiC add the substance to the List of Toxic Substances (Schedule 1 of CEPA) under the Canadian Environmental Protection Act (CEPA). Similarly, the Minister typically receives numerous assessments of the status of wildlife species, leading to a decision about whether or not to recommend adding the species to the List of Species at Risk under the Species at Risk Act (SARA). While the decision to recommend listing is discretionary, in both cases addition of the substance or the wildlife species triggers obligations to take action to mitigate the risk identified by the scientific assessment.

Amending existing regulations

Amending existing regulations to enhance their effectiveness. For example, the Minister may decide to amend a regulation to: strengthen its performance requirements; require the use of a more current test method; allow for use of new technologies or practices; expand the scope of application to include sources not previously addressed, or relax regulatory requirements where there is no longer a bona fide need for it, etc.

Developing new regulations

Developing new regulations to manage environmental or conservation risks where the Minister determines that regulatory intervention is required. Over the past 10 years the total number and complexity of regulations and equivalents^{Footnote 1}  for which ECCC is responsible has doubled. The annual output of regulatory initiatives has also increased significantly and the trend is likely to continue.

Regulatory agenda

ECCC administers or shares responsibility for some 30 Acts and approximately 80 regulations or equivalents, addressing issues as diverse as pollution prevention, weather modification, wildlife protection, and emergency management. A wide range of sectors are covered by existing ECCC regulations, including federal departments (storage tanks), municipalities (wastewater), importers/ exporters, consumer and commercial products and many industrial sectors. Vehicles and engines are a key focus of current GHG and air pollutants regulations. Regulations also impact hundreds of thousands of individuals who partake in regulated activities such as migratory game bird hunting, enter into any of ECCC’s 146 protected areas or are engaged in activities that may conflict with the survival of species at risk domestically or in international trade.

Posted in April 2019, the Department’s Forward Regulatory Plan for 2019–2021 proposed 92 regulatory initiatives, including new regulations, amendments to existing regulations, consolidations, and repeals and reflect existing policies as of 2019. While some regulatory work is legislatively mandated, the Minister of Environment and Climate Change and the Cabinet have the latitude to shape the regulatory agenda, both in the content and the pace of initiatives. All regulatory initiatives are conducted at the direction of the Minister, who has broad authority under the various departmental statutes to determine the overall focus of regulatory programs, and to make decisions about whether or not to intervene, the choice of instrument, and the nature of the regulatory obligation to impose.