UPDATE – Strengthening the Canadian Environmental Protection Act, 1999 and recognizing a right to a healthy environment
Since its reintroduction in February 2022, the bill Strengthening Environmental Protection for a Healthier Canada Act, also known as Bill S-5, has been carefully studied and reviewed; it first underwent a review by the Senate and is currently under review by the House of Commons’ Standing Committee on Environment and Sustainable Development. The Committee has invited over 30 witnesses, ranging from various experts, organizations, and communities, to share their points of view and recommendations.
The Bill includes numerous amendments to modernize the Canadian Environmental Protection Act, 1999 (CEPA) for the first time in twenty years.
The House of Commons and Senate will both have to approve the proposed bill before it becomes law.
Through this bill, the Government of Canada is delivering on its commitment to amend CEPA and recognize that Canadians have a right to a healthy environment.
The amendments will enable the Government to respond effectively to new science, which is pointing to harms that were unanticipated in the past, and to enable the use of new tools and sources of information that are now available to assess those risks. The amendments included in the Bill in February 2022 are outlined below.
A right to a healthy environment
The Government of Canada recognizes that every individual in Canada has a right to a healthy environment and that the Government has a duty to protect that right when administering CEPA.
The Government would be required to develop an implementation framework, which would set out how that right will be considered in the administration of the Act. The framework would detail, among other things, how principles such as environmental justice and non-regression (e.g. continuous improvement in environmental protection) would be considered in implementing the Act, as well as how the right would be balanced with relevant factors, such as social, health, economic and scientific considerations.
The amendments also include requirements for the minister of Environment and Climate Change and the minister of Health to consider available information on vulnerable populations and cumulative effects of substances when assessing risks posed by substances and to conduct research, studies or monitoring activities to support the Government in protecting Canadians’ right to a healthy environment.
The framework will be developed through robust consultations and can be continuously improved in light of experience and as views evolve. Ministers will report on the implementation of the framework annually.
The implementation framework would set out a path for continuous improvement in environmental protection. It is expected that applying the lens of a right to a healthy environment will support strong environmental and health standards and incent robust engagement and the collection of data and analysis to identify populations that are particularly vulnerable to environmental and health risks. The framework will also support new thinking about how to manage risks so that disproportionate impacts of substances on certain populations are addressed.
The proposed amendments to the preamble will also confirm the Government’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples.
Protecting vulnerable populations
CEPA amendments will also require that the Government administers the Act in such a way as to minimize risks to the health of vulnerable populations.
The amendments define a vulnerable population as “a group of individuals within the Canadian population who, due to greater susceptibility or greater exposure, may be at an increased risk of experiencing adverse health effects from exposure to substances.” Those with a greater susceptibility may include, for example, children and people in poor health. People with greater exposure may include workers and those living in areas where levels of pollution are particularly high.
To better protect people and communities in these situations, changes to CEPA would provide that the Government’s duty under the Act to protect the environment and human health includes protecting vulnerable populations. The changes would also require the ministers to consider available information regarding vulnerable populations in risk assessments. In addition, amendments would require the Government to conduct research and studies, including biomonitoring surveys, specifically in relation to the role of substances in illnesses or in health problems that may relate to vulnerable populations. The amendments would also enable geographically targeted regulations to better support the protection of communities at risk from local sources of pollution.
Assessing real life exposures
Generally, a substance-by-substance approach is taken when assessing the risks posed by substances—that is, substances are often assessed for risks in isolation. However, in real life we are exposed daily to multiple substances from many different sources, often at the same time and over a lifetime.
Recognizing that the science of assessing cumulative effects is still evolving and that data is not always available to support decisions made on this basis, amendments to CEPA will require the Government to consider available information with respect to the cumulative effects on human health and the environment that may result from exposure to the substance being assessed in combination with other substances.
A stronger regime for substances that are toxic under CEPA and of the highest risk
Amendments to CEPA will create a stronger regime for controlling certain substances found to be toxic under CEPA that pose the highest risk to human health or the environment.
The new regime will retain the risk-based approach in the current Act. For substances assessed as meeting the criteria to be considered toxic under CEPA, the amendments would then require that the ministers give priority to prohibiting activities relating to said toxic substances of the highest risk. The criteria for substances of the highest risk would be set out in regulations and would include persistence and bioaccumulation as well as criteria for such things as carcinogenicity, mutagenicity, and reproductive toxicity. The regulations will be developed in consultation with stakeholders.
In some cases, giving priority to prohibition will involve requiring the substances to be phased out entirely. In others, it means activities or releases of concern will be prohibited, and in others it may mean that all new uses will be prohibited unless it can be shown that there are no safer alternatives and that the use can be undertaken safely.
To reflect this new approach, Schedule 1 will be divided into two parts. Part 1 will contain substances of the highest risk, for which the Act will prioritize the prohibition of activities and releases of concern; Part 2 will contain all other CEPA-toxic substances. The Government is also proposing to change the title of “Schedule 1: List of Toxic Substances” to “Schedule 1”.
Supporting the shift to safer chemicals
In order to support the shift to safer chemicals, the Government will recognize, in the preamble, the importance of encouraging the progressive substitution of substances with alternatives that are safer for the environment or human health.
Proposed amendments will require the Minister of Environment and Climate Change to publish and maintain a “Watch List”—a list of substances that have been determined to be capable of becoming toxic under CEPA if, for example, exposure increased. The Watch List will help importers, manufacturers and Canadian consumers to select safer alternatives and avoid regrettable substitutions—which could occur when one problem chemical is replaced with another that in turn becomes a problem.
A new Plan of Chemicals Management Priorities
The Government will develop a new Plan of Chemicals Management Priorities for the assessment of substances to better understand and protect Canadians and the environment from substances of concern.
In 1999, CEPA prioritized the categorization of 23,000 substances already in commerce based on bioaccumulation, persistence, inherent toxicity and the greatest potential for exposure. The work to address the almost 4,300 substances that were then identified as priorities through this process has largely been completed. For this reason, a new process for prioritizing and assessing substances is needed. The amendments set out the process for this new plan to be developed that will reflect constantly evolving science and input from Canadians. The plan will include information gathering, monitoring, and research to support these assessments. It will also consider ways to provide meaningful information to the public through labelling and other means.
Increased transparency in decision making
Proposed amendments to CEPA will provide Canadians with a means to formally request that a chemical be assessed, requiring ministers to consider and respond to any such request.
The proposed amendments will also require that the Government communicate anticipated timelines for completing all the risk management actions proposed when a substance is found to be toxic under CEPA.
Industry will also be required to provide the Government with a rationale to support requests for confidentiality for business information. In addition, the Government will establish the circumstances under which the ministers may disclose the names of masked substances or living organisms. This proposal is consistent with the approach taken by the United States Environmental Protection Agency based on similar requirements under the Toxic Substances Control Act (TSCA).
Reducing reliance on animal testing
Amendments to the preamble of CEPA will recognize the need to reduce reliance on animal testing when assessing the risks that substances may pose to human health and the environment. These amendments will encourage federal government departments to promote the development and timely use of alternative methods and strategies.
Changes to the Food and Drugs Act (FDA) to strengthen the environmental risk assessment and risk management of drugs
The Government is also proposing to make amendments to the FDA that will enable it to create an environmental notification, risk assessment and risk management framework for drugs under the FDA. Currently, the safety, efficacy and quality of drugs are assessed under the FDA, and the environmental risks of the drug ingredients are assessed under CEPA. The proposed framework would streamline the regulatory process for industry while strengthening the environmental risk assessment and risk management of drugs.
In addition to proposed legislative changes, the Government is moving forward with the following new measures that will further protect Canadians’ health and their environment.
Labeling and information for consumers
To address growing demand for readily accessible information on chemicals in consumer products, the Government is committed to enhancing mandatory labelling requirements for certain consumer products and to improving the transparency of chemical ingredients in business supply chains.
Several acts already provide authorities to regulate the labelling of harmful substances in products, including CEPA, the FDA and the Canada Consumer Product Safety Act. In 2022, the Government launched national consultations to identify new ways to strengthen labelling and improve disclosure and communication of information about chemicals in supply chains. These consultations will allow the Government to propose regulatory changes or other equally effective actions.
In addition, the Government will propose requiring certain fragrance allergens to be disclosed on cosmetic product labels. The Government consulted Canadians in the summer of 2021 on potential changes to the Cosmetic Regulations under the FDA, which will inform a planned regulatory proposal.
Updating the regulatory framework for products of biotechnology
To keep pace with the rapidly evolving biotechnology sector, the Government of Canada will undertake a full and comprehensive review of the New Substances Notification Regulations (Organisms), which provide for the assessment of risks posed by new living organisms prior to their being introduced into the Canadian marketplace.
The objectives are to amend the regulations to respond effectively to advances in biotechnology, ensuring that Canadians and the environment continue to be protected, and to increase public participation and transparency when assessing and managing the risks associated with living organisms, particularly with respect to higher living organisms (e.g. genetically modified plants and animals).
Moving forward, CEPA will continue to maintain its fundamental structure, including the risk-based approach, which considers a substance’s properties as well as exposure to the substance. Furthermore, the criteria for determining whether a substance is toxic under CEPA have not changed—this provides continued certainty and predictability for the industry. The proposed amendments to CEPA represent the first major reform to the CEPA in more than 20 years. This is a very important step, the first of its kind since CEPA came into force, but it will not be the last. Sustained efforts to further improve CEPA and the Chemicals Management Plan will be ongoing. Taken together, the steps announced today will further support a healthier environment and economy for decades to come.
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