Issues and possible approaches, Canadian Environmental Protection Act: discussion paper, chapter 8

8. Updating regulation-making provisions

• 8.1 Facilitate regulatory alignment
• 8.2 Expand the authority to incorporate by reference

8.1 Facilitate regulatory alignment

Issue

Unless warranted by different environmental or health protection objectives, regulatory differences among jurisdictions can impose unnecessary costs on citizens and businesses, particularly in relation to integrated markets such as those for vehicles, engines, and fuels, as well as other products. In order to maintain harmonized regulatory requirements with another country, it is advantageous for the Government to be able to respond quickly to changes the other government makes to its regulations. However, the Canadian regulatory process can take several years to finalize a regulatory amendment.

The Canadian Environmental Protection Act (CEPA) contains a tool that allows for a quick response for the purpose of maintaining alignment with another country’s regulation. However, it only formally applies to one regulation-making authority. The interim order power in section 163 allows the Minister to modify or suspend any portion of vehicle, engine and equipment regulations under CEPA to the extent necessary to maintain alignment with foreign regulations, for a temporary period, to allow time for the regulation to be amended.

Possible Approach to Address the Issue

CEPA could be amended to expressly allow the Minister to issue an interim order (similar to that in section 163), to be used for any regulation under CEPA, to the extent necessary to maintain alignment with a foreign regulation. This would provide the Minister with a quick and efficient means of maintaining regulatory alignment while regulatory amendments are developed and finalized.

The effective period of the interim order could be set to reflect the fact that Canadian regulations typically take at least two years to finalize, and the deadline for obtaining the Governor in Council’s approval of the interim order could be extended from the typical 14 day period found in CEPA to 30 days.  

This authority would be limited in scope, and could only be exercised in respect of inconsistencies with foreign legislation, with which a CEPA regulation is intended to be harmonized.

8.2 Expand the authority to incorporate by reference

Issue

‘Incorporation by reference’ describes a mechanism by which a document or part of a document, as it exists on a particular date or as it is amended from time to time, may be included in a statute or regulation, without needing to reproduce the text of the document in the legislation itself. Once incorporated, the document is considered to be part of the legislation and acquires the force of law.

Incorporation by reference is a timely and effective means of responding to advances in areas such as science, technology, and any associated technical standards; it can help ensure that legislation remains current without requiring the full legislative amendment process.

Various authorities related to incorporation by reference were provided to the federal government through recent amendments to the Statutory Instruments Act. However, there remain some limitations with respect to incorporating by reference documents that Ministers produce themselves, or produce jointly with other another Minister or body in the federal public administration. While designed to ensure that the legislative process is not circumvented or sub-delegated to departmental officials, these limitations may impact on departments’ ability to respond to scientific or technical advances in a timely and effective manner.

Possible Approach to Address the Issue

CEPA could be amended to expressly allow incorporation by reference of the following types of material, as amended from time to time:

• Formal instruments made under the Act, such as guidelines and codes of practice.
• Internally generated technical documents that specify: 1) how to quantify prescribed data to be reported, including factors to be used for quantification; and 2) how to conduct prescribed tests, measurements, sampling, monitoring, and analyses.
• Documents produced jointly by the Minister of Environment and Climate change Canada (ECCC) and/or the Minister of Health, with another Minister or body in the federal public administration.

When dealing with internally or jointly produced documents, CEPA could be amended to ensure that an appropriate framework is in place to provide accountability for these documents.