Government Plans New Toxic Chemical Law to Create Right to Healthy Environment

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Kids feet with dandelion flowers lying on green grass in sunny day. Concept happy chidlhood.

The Canadian government plans to modernize the federal environmental protection law to make a healthy environment a legal right. Meanwhile, about 85,000 chemicals are on the US market, with hundreds of new ones introduced every year.

According to an official government notice given to the House of Commons by the environment minister, the federal government indicated that it would introduce a bill to reform the country’s signature pollution prevention law, the Canadian Environmental Protection Act (CEPA).

Bill C-28, the Strengthening Environmental Protection for a Healthier Canada Act, was tabled in the House of Commons by Environment Minister Jonathan Wilkinson on Tuesday. It’s meant to “modernize” the Canadian Environmental Protection Act, which the Liberals promised to do during the last election campaign. The current iteration of the Act dates back to 1999.

Protection of The Environment Is Essential

CEPA, the current version passed in 1999, is the primary federal law aimed at reducing pollution and keeping the country’s natural environment safe. The bill says: 

“The primary purpose of this Act is to contribute to sustainable development through pollution prevention […]. It also declares that “the protection of the environment is essential to the well-being of Canadians.”

According to its title, Wilkinson’s upcoming bill will also make amendments to the Food and Drugs Act and repeal the Perfluorooctane Sulfonate Virtual Elimination Act. Another of the government’s promises was to create a new “Canada Water Agency. A mandate letter was given to Wilkinson by the Prime Minister after the last election said:

“With the support of the Minister of Agriculture and Agri-Food, (Wilkinson will) create a new Canada Water Agency to work together with the provinces, territories, Indigenous communities, local authorities, scientists and others to find the best ways to keep our water safe, clean and well-managed,” 

The Right To A Healthy Environment

Nothing in Canadian law currently defines what makes an environment “healthy.” But if the bill is passed, the government will have two years to define it and decide how to protect it. It will do so using “research, studies, or monitoring activities,” according to the bill.

Lisa Gue, a researcher with the David Suzuki Foundation, said she was “very encouraged” to see the government affirm environmental health as a right. Gue said:

“There are 156 countries in the world that have already recognized the right to a healthy environment in their laws, or a legally binding treaty or constitution, so Canada is really in the small minority of countries that don’t already recognize this right”.

Only two provinces, Ontario and Quebec, have laws recognizing the right to a healthy environment.

“The real move here is to hardwire environmental considerations (into) decision-making,” Gue said, adding she’s encouraged the bill ties the right to the principle of environmental justice — meaning that everyone is treated equally under the implementation and enforcement of environmental laws.

Meanwhile, in the United States, The Toxic Substances Control Act (TSCA) – nicknamed ‘Tosca’ by policy wonks – was passed in 1976 in the US following a string of chemical scares in the late 1960s and early 1970s. Tosca was designed to regulate chemicals and gives the Environmental Protection Agency (EPA) the authority to demand that the industry keep records of the chemicals it uses and produce and restrict its use. The law doesn’t cover drugs, cosmetics, and pesticides, though regulated by different laws.

New Law Had Little Power

Under the current law, a list is kept of every chemical manufactured or used in the US. While no judgment is passed on the toxicity of chemicals on this list, if their name isn’t down, they’re not coming in (or made in the US).

Currently, tens of thousands of compounds have never been subject to safety tests because they were on the market before the law was passed in 1976. Approximately 62,000 chemicals already on the market were ‘grandfathered’ when Tosca was enacted, and the new law had little power to investigate them. Tosca only requires that chemical manufacturers submit information about new chemicals’ production, use, exposure, and environmental fate. Many argue that it falsely equated a lack of any safety data with a lack of risk.

Currently, a new chemical has to be shown to pose an ‘unreasonable risk’ before more information can be requested. Making a call on the risk a chemical pose is difficult to do without more information, however. This had led many observers to call Tosca’ toothless’.

Chemical Safety Assessments

The failure to modernize Tosca has left individual states trying to fill the void. At least 18 states, most notably California, have introduced stricter chemical controls. It’s estimated that states have together passed dozens or even hundreds of chemical safety laws, creating a confusing ‘patchwork’ of standards across the country.

For the first time, the new law would require a safety review of all chemicals on the market in the US. Chemical safety assessments will have to be completed to tighter deadlines, with priority given to those substances of most concern. The new Tosca has teeth – it gives the US’s environmental agency new powers to obtain information on chemicals and mandates safety tests before being sold.

The reformed law also addresses a controversial aspect of the current law that allows companies to keep some chemical information confidential to protect trade secrets. Chemical manufacturers say such a provision is essential to preserve their competitive advantages, but health and environmental advocates argue that potentially important information is withheld. The new law makes it more difficult for a chemical manufacturer to claim specific data as a trade secret.

More Susceptible To Harm From Chemicals

There are other practical concerns. Groups like the Union of Concerned Scientists suggest that it could more than 50 years to assess even 1000 of the most toxic chemicals on the market. The EPA already has a considerable backlog of chemicals to address, on top of a steady stream of new ones entering the market. Assessing and regulating these compounds will require many more scientists and technicians, which won’t happen overnight. 

For the Canadian case, it would also require that the cumulative effects of chemicals and their effects on vulnerable populations — which the bill defines as groups that might be more exposed or more susceptible to harm from chemicals — be considered in specific risk assessments.

Bill C-28 would also create a new category for the most toxic chemicals, allowing the Environment minister to regulate them strictly. They include ones that are carcinogenic, mutagenic, or neurotoxic or that affect the female reproductive system.

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