Follow-up report to the Standing Committee on the Canadian Environmental Protection Act: chapter 4

4 Addressing air pollution and greenhouse gases

The Canadian Environmental Protection Act, 1999 (CEPA) provides the government with a variety of options to control air pollutant and greenhouse gas (GHG) emissions. Divisions 4 and 5 of part 7 of the act provide authorities to regulate the manufacture and import of specific products that contribute to air pollution and GHG emissions, such as fuels, vehicles, engines, and equipment. These divisions enable the making of regulations to control the composition of fuels as well as the emission performance of a wide range of on-road and off-road vehicles and engines. In addition, GHGs and many air pollutants are on the list of toxic substances in schedule 1 of CEPA. This allows the government to use the broad regulatory powers in section 93 of part 5 of the act to manage those substances, such as for carbon dioxide emissions from the coal-fired generation of electricity. In addition, part 3 of the act allows the government to create a wide range of non-regulatory tools, such as guidelines and codes for environmentally sound practices, and objectives for desirable levels of environmental quality. Sections 71 and 46 of part 3 also enable the government to compel the submission of information for the purpose of assessing risks and producing inventories respectively.

4.1 Vehicle and engine emissions

The combustion of fossil fuels to power vehicles and engines is one of the largest sources of air pollution and has major adverse impacts on the environment and health of Canadians. The operation of vehicles and engines also results in emissions of GHGs that are primary contributors to climate change. Since the coming into force of CEPA in 2000, the government has adopted stringent standards to limit smog-forming emissions from on-road vehicles and engines using the enabling authorities of part 7 division 5, including cars, light-duty trucks, motorcycles and heavy-duty vehicles and engines. As well, several regulations have been put in place that establish emission standards for smog-forming emissions from a wide range of off-road vehicles and engines including: small spark-ignition engines used in lawn and garden equipment; recreational vehicles such as snowmobiles, off-road motorcycles and all-terrain vehicles; spark-ignition marine engines including outboards, inboards and personal watercraft engines; and, large diesel engines used in applications such as agriculture, construction, mining, and forestry. Since 2010, regulations have been adopted to limit GHGs from on-road vehicles, including cars, light-duty trucks and heavy-duty vehicles and engines.

As exemplified above, the existing framework of part 7 division 5 of CEPA has provided provided Environment and Climate Change Canada (ECCC) with the ability to establish emission standards for a broad range of vehicles and engines. The recommendations made by the committee include a minor change that could be made to further expand the scope of authority and improve the effectiveness of this division of CEPA. The committee recommended that CEPA be amended to “[…] provide authority to regulate the full suite of small marine diesel engines found in Canada” (recommendation 70). The government agrees with the committee (see discussion paper 1.1) and this recommendation will inform its work to reform CEPA. The committee also recommended “[…] that future regulations relating to small marine diesel engines contain a grandfather clause to ensure that Indigenous peoples will not be barred from conducting traditional harvest activities” (recommendation 71). The government agrees with the committee, and if it addresses Recommendation 70 as part of its work to reform CEPA and proceeds with the development of such regulations pursuant to that broader authority, it will provide Indigenous organizations and communities an opportunity to provide their views on the specific design elements.

The committee recommended that ECCC “[…] work with the Canadian Trucking Alliance [CTA] to establish testing protocols for greenhouse gas reduction qualifying technology, to ensure that such technology and systems are suitable for use in Canada” (recommendation 67). In response to this recommendation, ECCC has initiated discussions with the CTA to better understand the Association’s concerns related to this issue and assess whether any action is warranted. If it is ultimately determined that further action is warranted, the issue would likely be addressed through future program or regulatory changes. Any proposed regulatory change would be developed through the normal regulatory process, which would include consultations with all interested parties.

More broadly, the government’s ecoTECHNOLOGY for Vehicles Program, administered by Transport Canada in close coordination with ECCC, conducts in-depth safety and environmental performance testing on a range of new and emerging advanced passenger car and truck technologies. The program enhances the government's capacity to proactively test these new technologies, before they are well established in the market. Results are being used to help inform the development of safety and environmental regulations and industry codes and standards to ensure that new innovations can be introduced in Canada in a safe and timely manner.

The committee also recommended “[…] that ECCC consult with the [CTA] on the degree to which the distance of limp mode should be extended” (recommendation 68). “Limp mode” refers to the state of limited functionality that a vehicle goes into when a major operational problem is detected. Modern engines are largely controlled by an on-board computer and many sensors provide feedback on operational parameters to that computer. Manufacturers have typically designed such engines to incorporate a “limp mode”, which generally occurs when the signal value sent by a sensor to the computer is not within a pre-programmed range. The limp mode will generally switch to “secondary” or “emergency” programming that is intended to protect the engine or transmission from damage under critical conditions. In recent years, diesel engine manufacturers may have also incorporated a limp mode approach associated with improper operation of a major emissions control system, which typically includes an escalating warning system that provides considerable notice to the operator before entering a state of reduced functionality.

In response to this recommendation, ECCC has initiated discussions with the CTA to better understand the association’s concerns in this regard and to assess whether any action is warranted. If it is ultimately determined that further action is required, the issue would likely be addressed through future program or regulatory changes. Consistent with the above, any proposed regulatory change would be developed through the normal regulatory process, which would include consultations with all interested parties.

Existing authorities under part 7 division 5 of CEPA effectively enable the government to prohibit the incorporation of defeat devices on new vehicles and engines that are manufactured in Canada and that are imported into Canada. These apply to a “company” as defined in section 149 of the act, e.g., a domestic vehicle manufacturer or importer. The committee recommended that CEPA be amended to “[…] empower the government to take action against anyone who manufactures, sells or installs equipment that interferes with vehicle emissions controls” (recommendation 69). The government agrees with the committee and this recommendation will inform its work to reform CEPA.

In Canada, the establishment of requirements or restrictions regarding after-market modifications to vehicles is generally addressed under the jurisdiction of provincial or territorial governments, including modifications that may interfere with vehicle emissions controls. ECCC continues to work with provinces and territories through the mobile sources working group of the Canadian Council of Ministers of the Environment to consider opportunities for reducing emissions from in-use vehicles, including ways to address the risk of persons tampering with emission controls on in-use vehicles or engines.

4.1.1 Temporary importations

CEPA provides for the importation of vehicles or engines that do not meet the prescribed standards if the importation is for certain specific purposes, namely exhibition, demonstration and, evaluation or testing, for a specified period. The committee recommended that section 155 of CEPA be amended to “[…] clarify options in addition to removing a vehicle, engine, or equipment from Canada […]” (recommendation 72). The government agrees with the committee (see discussion paper 1.2), and this recommendation will inform its work to reform CEPA. In the interim, ECCC continues to administer temporary importations through the implementation of the existing regime.

4.1.2 Improved notice of defect regime

CEPA currently requires that a manufacturer or importer issue a notice of defect to the Minister of ECC and to owners of affected vehicles and engines upon becoming aware of a defect that affects or is likely to affect its compliance with a prescribed standard under applicable emission regulations. The notice is required to contain information that provides a description of the defect, an evaluation of the pollution risk arising from the defect, and directions for correcting it. While not required by the government, vehicle and engine manufacturers and importers typically pay for the correction of defects as a common business practice.

The committee recommended that certain improvements be made to the Notice of Defect provisions under CEPA (recommendation 73). The government agrees with the committee (see discussion paper 1.3) and this recommendation will inform its work to reform CEPA. In the interim, ECCC continues to administer notices of defect through the implementation of the existing regime.

4.2 Fuels

Existing regulation-making authorities under part 7 division 4 of CEPA allow for regulations to be made relating to the composition or quality of fuels. Current authorities, however, do not expressly allow for regulations to be made requiring labelling of fuel dispensing equipment. The committee recommended that CEPA be amended to “[…] authorize expressly the making of regulations respecting labelling of fuel dispensers” (recommendation 65). Section 140(2) of the act currently provides that regulations regarding fuel content may only be made if the Governor in Council is of the opinion that they could make a “significant” contribution to the prevention of, or reduction in, air pollution. The committee recommended removal of the word “significant” from this subsection (recommendation 66). The government agrees with recommendations 65 and 66 (see discussion paper 1.5 and 1.6), and these recommendations will inform its work to reform CEPA. In the interim, ECCC continues to develop and implement fuel regulations in accordance with existing authorities under part 7 division 4 of CEPA.

4.3 Air quality management

Federal, provincial and territorial governments work collaboratively to reduce air pollution in Canada, in recognition of the shared jurisdiction on environmental matters. In 2012, federal, provincial and territorial Ministers of the Environment agreed to move forward collaboratively with the implementation of a national Air Quality Management System (AQMS), a framework developed to improve air quality and protect the health and environment of Canadians.

The AQMS is designed to allow the “best placed” government to act, and balances the need for consistency across Canada with the need for flexibility to allow provinces and territories to address air quality in their jurisdictions. Key elements include: Canadian Ambient Air Quality Standards (CAAQS); a framework for air quality management through local air zones and regional air sheds; industrial emission requirements for major industries; and reporting to Canadians.

The committee recommended that CEPA be amended to “[…] set out the legal framework for the federal government to work with provinces, territories and Indigenous peoples to address instances of inter-provincial air and water pollution”, and “[…] to require the federal government to develop legally binding and enforceable national standards for air quality in consultation with the provinces, territories, Indigenous peoples, stakeholders and the public” (recommendations 35 and 36). The government supports the intent of these recommendations and shares the committee’s desire to ensure that air quality continues to improve. The government is committed to continuing to take action to improve Canada’s air quality through the AQMS, and other processes for addressing inter-jurisdictional air pollution issues.

The AQMS is a comprehensive approach for reducing air pollution in Canada. It is the product of unprecedented collaboration among federal-provincial-territorial governments, industry, and civil society. Federal-provincial-territorial governments have clear roles and responsibilities in the implementation of the system, which enjoys significant support due to its collaborative nature. Mandating federal legally binding and enforceable air quality standards could undermine the effectiveness of this collaborative approach.

Under the AQMS, CAAQS are developed and reviewed on a regular basis so that they continue to adequately protect human health and the environment. As part of the AQMS, reporting on the achievement of the CAAQS is undertaken by jurisdictions and published in a report on the state of the air, which is updated annually. This is a new report that provides a wide range of information to the public on air quality across Canada. Last year the government also established more stringent CAAQS for sulfur dioxide and nitrogen dioxide, and the government is currently in the process of reviewing the CAAQS for ozone in terms of its continued adequacy for protecting the health and environment of Canadians. A planned review of the CAAQS for fine particulate matter will begin later next year. The government will update the standards as necessary to continue to protect human health and the environment.

CAAQS drive air quality improvements across the country and are reviewed on a regular basis for their adequacy to protect the environment and human health. The CAAQS are underpinned by management levels, which require progressively more stringent action by provinces and territories as air quality approaches the level of the ambient standard.

The government has also put in place the Multi-Sector Air Pollutants Regulations to require reduced emissions from industrial boilers and heaters and stationary spark-ignition engines used by a number of Canadian industries, as well as standards for the cement sector. These regulations are expected to yield over $6 billion in cumulative health and environmental benefits over the 2016 to 2035 period, including 1200 fewer premature mortalities.

To reduce emissions of key air pollutants such as sulfur dioxide (SO₂), nitrogen dioxide (NO₂), particulate matter, and volatile organic compounds (VOCs), the government recently published measures under CEPA for air pollutants from numerous other industrial sources. Most recently, ECCC has published proposed regulations to reduce VOCs from the refineries and petrochemicals sectors, which are expected to improve air quality, in particular for Canadians who live near petroleum refineries and petrochemical facilities. These are expected to be finalized in late 2018. ECCC has also begun to develop regulations to reduce additional air pollutants such as SO₂, nitrogen oxides and fine particulate matter from oil refineries.

4.4 Other air quality-related recommendations

4.4.1 Products that may release a substance

Some products that do not contain a toxic substance can create and release a toxic substance during their life cycle. For example, portable fuel containers, i.e., “jerry cans”, are not necessarily made of toxic substances, but they may release toxic volatile organic compounds while they are used to store gasoline. Another example of products that may create and release a toxic substance during their life cycle is woodstoves.

The committee recommended that CEPA be amended to “[…] expressly allow information-gathering and regulation making to target the design and functioning of products, and to apply to manufacturers, importers or distributors of the products, rather than only to the users of products” (recommendation 55). The government agrees with the committee (see discussion paper 1.7) and this recommendation will inform its work to reform CEPA.

4.4.2 Hot spots

The committee recommended that “[…] CEPA be amended to define “hot spots”” (recommendation 22) and  “[…] undertake, in consultation with the provinces, territories Indigenous communities and the public, an assessment of potential hot spots or areas of potential intensified or cumulative emissions of toxins to ensure protection for vulnerable persons” (recommendation 45). Currently, authorities exist under CEPA to allow some regulations to target specific areas within Canada, subject to some limitations. The government commits to further consider the committee’s recommendation as part of its stakeholder engagement on this issue through the CMP Post-2020 process, which will inform how CEPA is reformed. More information concerning the government’s response to the committee’s recommendations regarding ‘hot spots’ can be found in the sections on “vulnerable populations and cumulative effects” and “response to addition to schedule 1” in chapter 3 of this report.

4.4.3 Auctioning of tradeable units

A tradeable unit regime under CEPA could be used in the context of emissions from vehicles. Authorities exist under CEPA to develop systems of tradeable units, but not to sell those units at a fixed price or by competitive bidding (i.e., auctioning). The committee recommended that CEPA be amended to “[…] expressly provide for the tools necessary to establish and operate a properly functioning auctioning system, such as the authority to sell tradeable units either at a fixed price or by competitive bidding” (recommendation 82). The government agrees with the committee (see discussion paper 1.8), and this recommendation will inform its work to reform CEPA.