Response to Submissions Received on the Proposed Order Adding the Greenhouse Gases (GHGs) to Schedule 1 of the Canadian Environmental Protection Act, 1999

As stated in Project Green: Moving Forward on Climate Change -- A Plan for Honouring our Kyoto Commitment1, [], the Government's assumption is that the Canadian Environmental Protection Act, 1999 (CEPA 1999) is the preferred legislative vehicle for implementing a regulatory system for emissions of the Kyoto Greenhouse Gases (GHGs) from Large Final Emitters (LFEs). The Plan indicated that the Government would regulate under Parts 5 and 11 of CEPA 1999 and that in order to do so, GHGs would first have to be added to the list of substances in Schedule 1 to the Act. This process was initiated on September 3, 2005, with the publication of a proposed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999 (PDF 1.5 MB). By November 2, 2005, when the comment period had ended, Environment Canada had received a total of 27 submissions from a range of sources including provincial, industry, environmental non-government organizations (ENGO) and private individuals. This includes three notices of objection received during the comment period, from a province, an industry association, and a private individual.

A total of 17 comments received from ENGOs and private individuals expressed support for the proposed Order to add GHGs to Schedule 1 of CEPA 1999. Some of these comments explicitly stated that the science upon which the decision to list is based is both substantive and valid, and that CEPA 1999 is the appropriate legislative instrument to use for regulating GHGs. A number of ENGOs suggested that the available science indicates that the GHGs meet all three criteria to be considered "toxic" under Section 64 of the Act. Specifically, they proposed that the Kyoto GHGs:

  1. have or may have an immediate or long-term harmful effect on the environment or its biological diversity;
  2. constitute or may constitute a danger to the environment on which life depends; or
  3. constitute or may constitute a danger in Canada to human life or health.

One comment from an industry association did not oppose GHGs being controlled under CEPA 1999, but suggested that the implications of considering GHGs toxic under the Act should be addressed by the Committee of Parliament which will be undertaking the five year review of CEPA 1999.

The remaining 9 sets of comments received from industry, one province and a private individual, including those embedded in the Notices of Objection, opposed the addition of GHGs to Schedule 1 of CEPA 1999. Most of these submissions expressed concerns about whether the term "toxic" is appropriate for carbon dioxide and some of the other GHGs, with some parties suggesting that this issue could be resolved if the term "toxic" was removed from CEPA 1999 or if another Part of the Act (Part 7 International Air Pollution Provisions) was used instead of Part 5. Some raised questions about the validity of the science upon which this proposed Order is based. There were also a few comments that there would be significant costs associated with implementation of regulations to control GHGs.

In addition to the comments referred to above, the Government also considered relevant comments submitted to the Minister of the Environment with respect to the July 16, 2005 publication in Canada Gazette Part 1 of the "Notice of Intent to regulate greenhouse gas emissions by Large Final Emitters". That Notice focused on the concepts for designing a regulatory system for GHGs, but noted that as a first step to regulate under CEPA 1999, GHGs would have to be added to Schedule 1 of the Act. Therefore, some comments on that Notice of Intent are relevant to the issue. The comments did not, however, raise any issues that were substantially different from those received in the comment period for the proposed Order itself.

The submissions on the proposed Order have been categorized into two main themes: those related to the science and those related to the use of CEPA to manage GHGs. A summary of Environment Canada's responses to the comments and the Notices of Objection are presented below.

Table 1: Comments and responses on the proposed Order to add GHGs to Schedule 1 of CEPA 1999
No. Comments Response
1 Science
1A The majority of comments stated that the science used by the Government is reputable and demonstrates that the Kyoto GHGs "constitute or may constitute a danger to the environment on which life depends" (paragraph 64(b) of CEPA 1999). However, several comments questioned either the validity or the selection of the science used to support the conclusion that GHGs are toxic under section 64(b) of the Act. For example, one comment criticized the Government for relying on the Summary for Policymakers (SPM) Report, which they stated is not as scientifically rigorous as the original IPCC (International Panel on Climate Change) report upon which it is based. Further, this same commenter contended that other studies which demonstrate that climate change is a natural phenomenon should have been considered. One commenter challenged the models and assumptions that the projections of climate change were based upon. Finally, it was recommended by a commenter that Canadian-based or regional studies should have been used in conjunction with the IPCC findings. The Summary for Policymakers of the IPCC's (Intergovernmental Panel on Climate Change) Third Assessment Report (TAR) was in fact not relied upon to support the conclusion that the six GHGs are toxic under paragraph 64(b) of CEPA 1999. Instead, the TAR of the IPCC was used as the scientific justification for listing GHGs on Schedule 1 of CEPA 1999. This comprehensive scientific assessment reviewed published literature available up to and including 2001. The body of science reviewed in the TAR is enormous. Scientific papers that have been published since that date strongly support and even strengthen the conclusions of the TAR. The Departments are convinced that the weight-of evidence in support of adverse impacts arising from continued increases in anthropogenic sources of GHGs is substantial.

The EC Science Synthesis Report ("The Kyoto Protocol Greenhouse Gases (GHGs) and the Canadian Environmental Protection Act: A synthesis of relevant science from the IPCC* Third Assessment Report in the context of CEPA Section 64") highlighted the summary sections of the IPCC's Third Assessment Report – the Summary for Policymakers and the Technical Summary. However, the full scientific assessment reports of the IPCC, namely the reports of Working Groups I (Science) and II (Impacts, Adaptation and Vulnerability) provide the underlying scientific justification for listing GHGs on Schedule 1. The material presented in the EC Science Synthesis Report was noted as being illustrative of that underlying body of science. References to material in the full assessment reports are provided in the EC Science Synthesis Report.

Canadian research and research identifying Canadian impacts are included in the IPCC review of published literature, and thus form part of the TAR which was the basis for the EC Science Synthesis Report.

Several comments, from both those that supported the addition of greenhouse gases to Schedule 1 and those that did not, stated that the impacts of greenhouse gases on human life and biodiversity should be considered by the Government. Some comments noted that the IPCC science and other science describe the impact on biodiversity and human health, and that therefore Environment Canada and Health Canada should assess whether or not greenhouse gases meet the other two criteria under section 64 of CEPA 1999: i.e. if greenhouse gases are or may enter the environment in a quantity or concentration or under conditions that:

  • 64(a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity;
  • 64(c) constitute or may constitute a danger in Canada to human life or health

In the EC Science Synthesis Report, Environment Canada presented the assessment of whether the greenhouse gases meet the criterion under paragraph 64 (b) of CEPA 1999; i.e. if greenhouse gases are or may enter the environment in a quantity or concentration or under conditions that:

  • 64(b) constitute or may constitute a danger to the environment on which life depends

This criterion has been in CEPA 1999 since the first Act was passed in 1988 and was used as the rationale for addition of several ozone depleting substances to Schedule 1. When CEPA 1988 was developed, there was increasing global concern that substances like ozone depleting substances and greenhouse gases cause physical and/or chemical effects that in turn affect living organisms including humans. Paragraph 64(b)2 contains the criterion the Departments have used when the impacts result from physical and/or chemical changes in the environment on which life depends, as opposed to impacts on life and biodiversity that are considered in paragraphs 64(a) and (c). The EC Science Synthesis Report describes the impacts on biodiversity, human life and health resulting from the global warming caused by greenhouse gases.

1C One comment suggested that the latest research shows there is little or no warming in the lower troposphere and therefore the IPCC climate model predictions greatly exaggerate future warming. The latest research in fact indicates that the lower troposphere is warming at a rate similar to that of the Earth's surface, and that the observed warming is in better agreement now with model projections. The warming of the troposphere is consistent with a warming world responding to increases in atmospheric GHGs.
2 Using CEPA 1999 to Manage GHGs
2A Most of the submissions received supported the Government's proposed Order to add the GHGs to Schedule 1 of CEPA 1999 as these substances meet the definition of "toxic" as set out in paragraph 64(b) of the Act.

Not all of the comments were concordant with this perspective. Several submissions suggested that GHGs should not be regulated under the provisions of an Act that addresses the management of toxic substances. Instead, it was argued that as carbon dioxide and other Kyoto GHGs are not "toxic" in the conventional meaning of the word, designating them as toxic under CEPA will create a "stigma". The term "toxic" should be removed from CEPA 1999, or additional categories of "substances to be controlled" should be added.
Substances to be regulated under Part 5 of the Act may be added to Schedule 1 if they meet one of the criteria for being identified as "toxic" under CEPA 1999, as set out in section 64.

CEPA 1999 does not currently provide for the option of using the term "substances to be controlled".
2B One commenter suggested that the Government should, within the context of CEPA 1999, identify or define the degree of toxicity of each of the GHGs that are being proposed for addition to Schedule 1 of the Act. Another submission recommended that the Government should consider creating sub-categories for the GHGs to distinguish these substances from others on Schedule 1 on the basis of toxicity. For the purposes of being considered for addition to Schedule 1 of CEPA 1999, a substance must meet at least one of the criteria set out in section 64 of the Act. The knowledge of which of the gases pose the greatest risk helps to inform the management process, with initial efforts directed at the highest risk substances and sectors.

The six Kyoto Protocol GHGs are those posing the most risk of harm with regard to climate change. The Kyoto gases are carbon dioxide (CO2), methane (CH4), nitrous oxides (N2O), sulphur hexaflouride (SF6), perflourocarbons (PFCs) and hydroflourocarbons (HFCs). These six substances, or groups of substances, were included within the Kyoto Protocol because they have significant global warming potentials (GWPs), are long-lived, and therefore of global concern. As well, these substances have the potential to contribute substantially to climate change based on historical data and projected emissions over the next century. The only other long-lived GHGs that have contributed significantly to climate change over the past century are the halocarbons, CFCs and HCFCs, which are already being managed under the Montreal Protocol on Substances That Deplete the Ozone Layer.

It is important to note as well that the impacts of climate change cannot be attributed to any single GHG. GHGs are well-mixed in the atmosphere. Rising concentrations of GHGs will alter the Earth's energy balance resulting in higher surface temperatures on Earth. This is in turn will have cascading effects on the climate system and on human and biological systems, some of which will be negative. As the effects of climate change cannot be attributed to individual GHGs, the Kyoto Protocol GHGs are being treated collectively within the proposed Order.
2C A number of submissions commented on the advantages that would be realized through addition of the GHGs to Part 5 of CEPA 1999, as it would enable the Government to utilize a wide range of tools and mechanisms to reduce GHGs emissions from targeted sources. The Government examined the available legislative options for addressing the environmental risks posed by GHGs, and concluded that Part 5 of CEPA 1999 was the preferred vehicle under which the GHGs regulatory and management regime should be developed. This conclusion was based on several considerations. First, CEPA 1999 is the only existing federal legislation with authorities that can target risk management actions for the GHGs at the levels of both substances and specific sectors. Second, the Act enables a cooperative implementation approach with provinces, territorial or aboriginal governments by allowing equivalency agreements with other levels of government that have their own equivalent regulatory regimes or to enter into agreements to delegate administration of regulations under the Act. Third, it provides for flexible compliance options, including emission reductions, credit purchases, or contributions to a technology research and development fund. Finally, using the existing environmental protection legislation is supportive of the Government's policy on Smart Regulations. It will help to reduce the cumulative impacts of regulations by avoiding overlap, duplication, inconsistency and unintended consequences that could arise with multiple laws, and it will contribute to the transparency of regulatory processes.
2D While the majority of submissions supported the Government's proposal to add the Kyoto GHGs to Schedule 1 of CEPA 1999, a few questioned why the Government did not opt to use the International Air Pollution provisions of CEPA 1999 to manage the risks associated with the Kyoto GHGs. The Government of Canada examined the feasibility of using the International Air Pollution provisions under Part 7, Division 6 of CEPA 1999. These provisions are well suited to address a situation where air pollution emanating from a few sources in a few jurisdictions is not in compliance with a specific standard (source and substance specific) set in an international agreement. The Kyoto Protocol, however, sets only a national level target for a group of substances and is not source-specific (other than at the country level). The Government of Canada's approach to regulating Large Final Emitters (LFEs) is being carefully designed to ensure that it would be equitable both among regions and the LFE sectors. It was concluded therefore, that Part 5 of the Act is more appropriate to deal effectively with the management of GHGs.
2E A few submissions questioned the Ministers' conclusion that the addition of the GHGs to Schedule 1 of CEPA 1999 would not result in any incremental costs to the public, industry or governments. An additional comment made was that in the absence of clearer scientific evidence, it would appear that the purpose of the proposed GHG regulations under CEPA 1999 is to establish a new tax regime based on CO2 production. The addition of the GHGs to Schedule 1 of CEPA 1999 in and of itself does not prescribe a specific management regime or any specific actions on behalf of emitters/users of a substance. It enables the Government of Canada to consider the use of the regulatory authorities of the Act, as well as a number of other flexible instruments provided for under CEPA 1999 to support this system. As noted in the RIAS (Regulatory Impact Analysis Statement), the costs and benefits of using these various instruments to reduce the emissions of GHGs will be assessed during the risk management phase, i.e. prior to the development of any regulatory instrument. For this reason the RIAS accompanying the draft Order stated that "There will be no incremental costs to the public, industry or governments associated with this proposed Order for adding the six GHG substances to Schedule 1 of CEPA 1999. The costs and benefits would be assessed during the risk management phase, when the Government will undertake an appropriate assessment of the potential impacts of a suite of instruments. These measures and technologies are expected to be considered in consultation with various federal government departments, provincial and territorial governments and other stakeholders."

The Government's climate change plan, "Moving Forward on Climate Change: A Plan for Honouring our Kyoto Commitment", sets out the key parameters for a system to achieve GHG emission reductions from industrial LFEs. These parameters were further elaborated in the July 16, 2005 Notice of Intent to Regulate Greenhouse Gas Emissions by Large Final Emitters.

Under subsection 332(2) of the Act, a person may file a Notice of Objection requesting that a Board of Review be established. The Minister or the Ministers may then establish a board of review to "inquire into the nature and extent of the danger posed by the substance in respect of which the decision is made..." (section 333).

Three Notices of Objection were received, two of which clearly requested a Board of Review while the third did not. Regardless, the Ministers have carefully reviewed each of the three Notices of Objection in considering the need for a Board of Review. Two of the three Notices of Objection addressed issues of science, including that there was not a sufficient weight of scientific evidence presented or analyzed to validate the conclusion that anthropogenic sources of GHGs constitute or may constitute a danger to the environment upon which life depends; that greater consideration should be given to the views that global warming is a natural rather than a human-made phenomenon; and that the Government should rely on Canadian or non-international scientific studies to reach its conclusions about the causes and sources of climate change.

Furthermore, one of these Notices contended that the Minister of Health should have concluded that GHGs are toxic to human health, and an inadequate assessment was done on the economic and competitiveness implications of adding GHGs to Schedule 1 of the Act.

Upon careful consideration, the Minister of the Environment concluded that a Board of Review is not necessary in this instance. This decision is based upon the following considerations:

Cynthia Wright
Director General
Systems and Priorities Directorate
Environmental Stewardship Branch
Environment Canada
21st Floor, 351 St. Joseph Blvd
Gatineau, Québec K1A 0H3
Phone: (819) 953-6830
Fax: (819) 997-0449

1 The Government of Canada's actions on climate change is a component of Project Green. Project Green is a set of policies and programs aimed at supporting a sustainable environment, healthy population and competitive economy. It addresses environmental and competitiveness issues for the 21st century including measures to reduce greenhouse gas emissions, to increase fuel and energy efficiency and to increase Canadian and Foreign markets for environment technologies, can drive our economy and protect our environment and health.

2 originally section 11(b) in CEPA 1988

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