When is “Toxic” ...Not?

A: When industry lobbies to delete a word

op-ed by Delores Broten

We’ve seen this movie so many times before. Laws are proposed, and sound fine for health and the environment, but the details can render the whole effort worthless. (Buy me a beer and I can recount countless examples.) In this case, the removal of one word can open Canada’s premier environmental law to endless litigation and another fifty years of turtle walk on toxic chemicals.

The Canadian Senate is currently considering Bill S-5, An Act to Amend the Canadian Environmental Protection Act (CEPA). Some of the provisions might raise a few eyebrows. The Canadian Environmental Law Association (CELA), Ecojustice, and dozens of other environmental organizations have registered opposition to these frankly dangerous changes.

Fe de Leon, researcher and paralegal at CELA, told the Watershed Sentinel that it appears that the Bill S-5 revisions to CEPA are trying integrate with American practices, rather than the gold standard risk-based approach of the EU, which starts from the precautionary principle.

Not that the current law is working very well. In one article, CELA called it “playing regulatory whack-a-mole with dangerous chemicals.”

In a good step forward, Bill S-5 does provide the right to a healthy environment, but (and here comes the catch) there is no provision for what the lawyers call “a remedy,” and what parents might call consequences.

What pollution planning?

There is still no mandatory requirement for pollution prevention planning for toxic substances (sort of like doing your homework). And since CEPA became law in 1999, the Minister has only exercised the power at his/her discretion to require that planning for one-sixth of the chemicals on the current Schedule 1 List of Toxic Substances.

Endless citizen effort went into getting those 150 chemicals onto Schedule One. There are thousands of substance candidates, but the criteria are onerous and the acceptable science is scarce. It is up to citizens and scientists to come up with the proof of a substance’s toxicity. Meanwhile, industry has no obligation to test for issues such as endocrine-disrupting substances, cumulative effects, and impacts on vulnerable populations. Citizens toil, while industry not only profits, but often poisons workers and neighbours – lead being a prime example.

As for looking for alternatives to toxics, whether chemicals or products or production methods, that requirement was neatly knee-capped in 1999, when the need for such alternatives to be economically feasible was inserted into CEPA at the last minute.

But what about “toxic”?

This is a humdinger. For reasons unknown, the feds are proposing to eliminate the word “toxic” from the legal designation, Schedule 1 List of Toxic Substances. “Toxic” under Canadian environmental law has a specific meaning and must meet specific criteria. That is why so few substances are on Schedule One. Probably the reasons to remove “toxic” are beloved by PR companies and lawyers, because of the potential for endless litigation – oh goodie.

On top of that, Bill S-5 proposes to divide the already impotent Schedule One into two parts – maybe to be called Substances and Other Substances? Potentially only Substances, about 10% of the list, would be subject to stringent controls, the rest maybe to pollution prevention planning, or even more research.

And round we go again, on Canada’s baroque ferris wheel for environmental protection.

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