Reforming Canadian Environmental Protection Act
Hillwatch Principal Michael Teeter appeared four times before the House of Commons Environment and Sustainable Development Committee on the CEPA (Canadian Environmental Protection Act) both on behalf of clients and as an expert witness in his own right. Here is an excerpt of his testimony on December 12, 2006 that captures the key points he made before the committee:
Mr. Michael Teeter (Consultant, Salt Institute of Canada):
Thank you, Mr. Chairman.
The Salt Institute has been pleased to be part of this important debate on the review of CEPA. We've attempted to frame our recommendations around a number of public interest themes as follows.
First, CEPA is the cornerstone of Canada's environmental legislative framework and a key component of sustainable development principles, and as such, it should be structured and administered in a way that encourages fast and effective actions to support and improve environmental performance.
Fast and effective environmental improvements require commitment and investment by industry and by governments. CEPA should be structured and administered in a way that encourages effective investments immediately. This means that dialogue and cooperation between and among stakeholders and the government are often critical to success.
In our view, federal regulation is not always the best method to achieve these results, particularly when one understands that federal regulation must flow from schedule 1 listings and is predicated on the Criminal Code constitutional prerogative.
The last framework issue for us is that good science requires independent peer review. Despite what others have said about this, there is no requirement for independent peer review in CEPA.
If the administration and operations of CEPA were structured within this framework, a number of important administrative changes would occur. First, the substance foundation of the statute would have to be modified in theory and practice. Instead of a focus on the substance, there should also be a focus on the human context in which the substance is used.
While categorization, screening, and assessments are taking place, Environment Canada would also be considering such key questions as these.
What are the contexts or behaviours that are creating the environmental problem with respect to the substance?
What is being done now in the interests of improved environmental performance for these substances and contexts, and what actions can we take to accelerate and enhance these positive developments?
What further instruments do we need to achieve improved performance—and when we use the word “instruments”, we mean what kinds of tools does Environment Canada need, whether regulation, whether voluntary instruments, or whatever—and what do we need to do to obtain these instruments? The choice of the instruments will actually often determine the kinds of actions that one would take, because obviously, if voluntary instruments are appropriate or other governments are doing something effective already, then you don't need to go through the regulatory process to achieve those ends, certainly the listing process.
Are there environmental actions that all stakeholders agree on now? If so, how can we accelerate these actions and communicate the benefits of these actions to the public? As we've heard before, there's a great deal of futility in the public and a sense that nothing is being done, when in fact it's not true. So I think the sooner we can communicate the positive things that are actually taking place, the better.
Depending on the substance and the context, the threat of regulation can sometimes be as effective as regulation itself. Use carrot-and-stick principles to get to positive environmental actions sooner. Consider the use of incentives for environmental performance that might drive positive outcomes faster and with wider impact.
A lot of these things that we're talking about here would require a bit of a cultural change in Environment Canada. Rather than simply focusing on us versus them, it would be more a focus of how can we get to things faster by working together, and how can we communicate these benefits more quickly and with more impact? We are also recommending what we consider to be small modifications to CEPA so that we can realize the benefits of the approach we're recommending—and I will summarize from previous presentations as follows.
We're recommending that there be another schedule or listing category in CEPA so that it is possible to differentiate between substances that are “toxic in the ordinary sense”, to use the Supreme Court language, and those that are not. This would allow the government to regulate substances, in context, without confusing the public or damaging trade prospects and international understanding of Canadian products and things like that. This change is entirely consistent with the principles we talked about earlier.
We believe there should be a small change in the definition of substance in section 3 of the statute, so that listing something in context--environments, quantities, and so on--would be much easier. Some people will argue that you don't need to change the statute to achieve this end, but we've heard it from enough expert people in the past that I believe there has to be a small change to the section 3 definition of substance.
If Environment Canada deals with stakeholders in a more contextual framework, we believe there will be positive actions sooner and the reaching of an agreement sooner. We don't believe that stigmatizing consumer products with the word “toxic” should be the subject of the first conversation one has with stakeholders, unless drastic action is necessary under the virtual elimination provisions in the statute.
We also believe that the timelines in CEPA should be changed so that risk management and risk assessment take place concurrently. It's not a big change, but one that I think is consistent with our principles.
As soon as risk management actions are taken, we believe they should be publicized and promoted so that the public understands that meaningful, positive things are being done now. As we heard earlier, I think there's a great deal of misunderstanding, and certainly a perception of futility and a feeling that nobody is doing anything for the environment, so why not just throw up our hands and say, “Why should I do anything?” That's particularly the case with the young people today.
I think the faster we can get to consensus on actions and the faster we can talk about those in a meaningful way to the public, the more they will feel that, “Yes, there are things that people are doing, that our leaders are doing, that industry is doing, and there are things that I can do, too. It's not that futile. It's not that bleak.” Everybody talks about the environment in such bleak terms.
My last recommendation for change in the statute is that there should be a mandatory independent peer review process introduced into the risk assessment part of it. Environment Canada scientists should not be doing the science and managing its oversight at the same time. In our view, there's a conflict of interest. Mandatory independent peer review ensures that good science will drive government decision-making.