The federal government has recently made significant changes to the Canadian Environmental Protection Act (CEPA) which represent the first major overhaul of the statute in over twenty years. On June 13, 2023, Bill S-5 was passed by the Senate and received royal assent.
Included in the new amendments for the first time is a recognition that “every individual in Canada has a right to a healthy environment” as provided under CEPA, which right the government must protect, and in so doing, may balance that right with relevant factors.
The questions that arise are what constitutes a “healthy environment” and what are the “relevant factors” that are to be balanced.
The short answer is that we do not yet know. Under the amendments, the federal government will have up to two years to develop an implementation framework to set out how the right to a healthy environment will be considered in the administration of CEPA, during which time consultation, research and other considerations will be undertaken for the purpose of developing the framework.
Even though there is no immediate answer as to what the right to a healthy environment will entail, the inclusion of this right is a significant step in recognizing the importance of the environment on the health of Canadians.
Another significant provision in the new amendments is the requirement that the federal government prioritize prohibiting the most hazardous substances. A fundamental purpose of CEPA is to address pollution sources, including hazardous substances, and specifically their manufacture, import, sale and release into the environment. Designation of a substance as toxic is integral in its regulation.
The amendments require the government to develop a plan within two years that specifies the substances to be given priority in assessing whether they are not only toxic, but capable of becoming toxic. The assessment process will require consideration of vulnerable populations and whether there may be cumulative effects as a result of exposure to the substance in combination with other substances.
At the same time as these amendments, which are intended to strengthen the regulation of toxic substances under CEPA, the government is looking to make substantial changes to the regulation of per- and polyfluoroalkyl substances (PFAS) in Canada. PFAS are chemicals invented in the mid-1900s for use in a number of industries and products. Some of these uses include fire-fighting foam, non-stick cookware and stain-resistant materials. PFAS are persistent, bioaccumulative and toxic.
Over 4,700 PFAS substances have been identified, however, to date, Health Canada has set drinking water quality guidelines for only two PFAS substances: PFOA and PFOS. In addition, Health Canada has set drinking water screening values for nine other PFAS substances.
Under its draft State of Per- and Polyfluoroalkyl Substances (PFAS) Report released in May of 2023, Health Canada seeks to achieve a 30 ng/L limit for total PFAS in drinking water. This would be far more restrictive than the current guidelines and values for the few PFAS substances subject to them. The proposal represents a radical shift in the treatment of PFAS substances in Canada and recognizes their toxic and persistent nature.
The consultation period on the draft report ended July 19, 2023. It is anticipated that the next step will be the publication of notice under s. 71 of CEPA to collect additional information about PFAS in the fall of 2023.