When it comes to protecting human health and the environment from toxic pollution, the Canadian Environmental Protection Act (CEPA 1999) is a crucial piece of legislation. But much has changed since the Act was first passed in 1999, and it’s time for an update. With CEPA now under review by parliamentary committee, right now we have a once in a generation opportunity to reduce toxic pollution.
When the federal government was newly elected and setting an environmental agenda, Ecojustice, Environmental Defence, Canadian Environmental Law Association (CELA) and David Suzuki Foundation worked together to develop recommendations for better management of toxic substances. One of the key recommendations was to review and update CEPA.
When the review kicked off in March 2016, we were delighted to receive invitations to testify before the House of Commons Standing Committee on Environment and Sustainable Development. Maggie MacDonald of Environmental Defence and Elaine MacDonald of Ecojustice were among the first witnesses to testify before the committee. They described their vision for a stronger Canadian Environmental Protection Act, and better management of substances under the Chemicals Management Plan.
After reviewing the testimony of fellow witnesses, and talking to experts in health, environment and law, Ecojustice, Environmental Defence and Equiterre identified five key areas of CEPA that need to be improved to protect Canadians and the environment from the effects of toxic pollution:
1. Recognizing our rights and protecting the vulnerable: Substantive environmental rights and environmental justice
CEPA must be amended to recognize the substantive right to a healthy environment for all Canadians — the right to breathe clean air, drink safe water, and the right to enjoy a non-toxic environment and healthy ecosystems for our children.
Environmental rights, however, are not meaningful unless enjoyed by all. This is why including the concept of environmental justice in CEPA is also critical. Assessments of substances under CEPA do not consider disproportionate impacts on marginalized populations such as low income and First Nations communities. Nor do assessments consider the higher risks during developmental windows of vulnerability like pregnancy or puberty. CEPA needs to adopt an environmental justice framework to address inequitable distribution of environmental harms and protections in Canada.
2. Toxic is toxic: Improving the assessment of substances under CEPA
Endocrine-disrupting (hormone-disrupting) chemicals (EDCs) have challenged traditional concepts in toxicology. Particularly problematic is the dogma that “the dose makes the poison.” This is troublesome because endocrine disruptors can have effects at low doses that cannot be predicted by knowing the effects of higher doses. The outdated risk assessment approach under CEPA needs to be amended to consider biological response to endocrine disruptors, regardless of dose.
EDCs are widely used and found in everyday consumer items like BPA in food can linings and phthalates in cosmetics. No one is exposed to just a single chemical. In fact, by the time most people are done with their morning routine, they may have been exposed to more than 100 chemicals through personal care products alone.
3. Getting to banned: The need for fast and effective regulation of toxic substances
Some chemicals are so hazardous that they should be banned unless they can be proven safe for the proposed use. This is the case in Europe under the REACH program for substances of very high concern to human health or the environment. CEPA must also be amended to give Canadians the right to ask for the assessment and regulation of substances based on emerging scientific studies and data. Even when a substance is found to be toxic, it can currently take many years for the risks posed to be regulated or managed. This was the case with the toxic flame retardants PBDEs – which took 10 years.
Far too often, the measures adopted are minimal or merely voluntary. Improvements to CEPA should ensure that toxic chemicals are restricted or banned quickly. They must not remain unregulated for years and years – as is too often the case now. Environment Canada called triclosan toxic to the environment in 2012, but it is still not officially listed as toxic under CEPA, and while the US has moved ahead with a ban, triclosan has not yet been banned or restricted in Canada.
4. The ‘everyday’ toxic: Effective management of chemicals in cosmetics and other consumer products
There has been a significant shift in sources of pollution in Canada in recent decades. Canadians and the environment are now increasingly exposed to toxic substances in everyday items such as cosmetics and imported manufactured goods.
Even when restrictions are adopted under CEPA, they only address a fraction of the products containing the toxic chemical. For example, the endocrine-disrupting plasticizer BPA was banned in baby bottles after an assessment under CEPA, but is still legally used to line food cans and to coat cashier receipts.
Chemicals management under CEPA must address the risks associated with low-dose exposures to toxic chemicals in consumer products, offer more comprehensive bans and prohibitions, and identify safer alternatives.
5. Tell us more and let us comment: Transparency and public engagement
CEPA’s main objective is to promote transparency and public participation in decision-making. CEPA has proven to be excessively opaque and complex, leaving numerous loopholes and areas of regulatory uncertainty when it comes to assessing new organisms and new chemicals.
The only national source of pollutant information in Canada is the National Pollutant Release Inventory (NPRI). That resource is riddled with loopholes, exemptions and underestimations. This leaves Canadians with incomplete information and a potentially false sense of the pollution risk in their communities. Exemptions must be ended for chemicals (like those used in fracking), industry-reported data must be validated, and reporting requirements need to be prescribed to ensure consistent, accurate and complete information is reported to the NPRI annually.
Canada’s environment has changed, now it’s time for CEPA to change too
Since CEPA was enacted in 1999, the Canadian economy has shifted to include less heavy industry. Consumer products are now responsible for a greater share of pollution than when the Act was first passed. New science has emerged, underlining the hazardous nature of endocrine-disrupting substances that toxicologists believed to be safe in 1999.
To adapt and compensate, the Chemicals Management Plan has drawn on other Acts for Risk Management Instruments, such as the Canada Consumer Product Safety Act and the Cosmetics Regulations of the Food and Drugs Act. But these measures fall short of the substantial environmental and human health protection CEPA can and should offer. With meaningful updates, this Review is a generational opportunity to accomplish that aim. Our organizations are working together to see that CEPA is improved in 2017.