Canadian environmental regulation and policy is constantly changing. Issues relating to climate change, ocean pollution and toxic substances are frequently in the headlines and often lead to calls on all levels of government to regulate certain activities. We have selected three areas of recent or proposed federal legislation that have the potential to impact various business sectors in 2019.
Challenges to federal GHG pricing legislation
In June 2018, the Government of Canada passed the Greenhouse Gas Pollution Pricing Act (GGPPA), legislation intended to give effect to Canada’s voluntary commitment under the 2015 Paris Agreement to reduce its 2015 greenhouse gas emission levels by 30 percent by 2030. The GGPPA applies to provinces that have not implemented their own cap-and-trade or carbon tax regimes by January 1, 2019, which provide for a comparable price on carbon.
The Provinces of Saskatchewan and Ontario are challenging the constitutionality of this legislation in reference cases filed with their respective Courts of Appeal. The basis of Saskatchewan’s challenge is as follows:
As the GGPPA will only apply in provinces that choose not to implement their own carbon pricing, it violates the principles of federalism;
The legislation deals with matters that fall under provincial responsibility and are, therefore, outside the federal government’s areas of responsibility; and
The carbon price is a tax and, therefore, in violation of the constitutional requirement that taxes may only be imposed by Parliament. The Cabinet determines in which provinces and territories the tax will apply.
In its reference, Ontario says Canada does not have general jurisdiction over the vast range of provincially-regulated activities it is purporting to regulate under the GGPPA. The Province also says the charges imposed by the legislation are neither valid regulatory charges, nor valid taxation. Both cases are set to be heard in 2019, with Saskatchewan’s first up in mid-February and Ontario’s scheduled for mid-April. As Ontario’s case was triggered by a change from a Liberal to a Conservative government, and elections will take place this year at the federal level and in a number of provinces (notably Alberta), further litigation could follow. In addition, it is likely the decisions of the Saskatchewan and Ontario Courts of Appeal will end up before the Supreme Court of Canada.
Moving to zero plastic waste
Environment Canada engaged in an extensive public consultation process in 2018, seeking input from Canadians as to how Canada should reduce plastic waste and marine litter. Environment Canada received almost 2000 submissions, recommending improvements in recyclability and packaging standards, increased access and incentives to use compostable plastics and reusable items, limits or fees on single-use plastics and packaging, and improved recycling programs and infrastructure. Following the closure of the public process, Environment Canada announced it would be working with the provinces, territories, indigenous groups, industry, municipalities, NGOs and research institutions to develop an approach to a Canada-wide framework for eliminating plastic waste and reducing marine litter. The framework initially took the form of a “strategy” issued by the Canadian Council of Ministers of the Environment (CCME) at the end of 2018. The CCME strategy outlines necessary changes across the plastic lifecycle, from design to collection, clean-up and value recovery, and will lead to the development of an action plan in 2019 that will set out the measures and actions needed to achieve these changes.
Changes to regulation of cross-border movement of hazardous waste and recyclables
Following another extensive consultation process, in December 2018, Environment Canada published proposed new regulations governing the transboundary movement of hazardous waste and recyclable materials under the Canadian Environmental Protection and Enhancement Act, 1999 (CEPA). Environment Canada will accept comments on the proposed regulations until February 13, 2019. According to the Regulatory Impact Analysis Statement that accompanied the draft regulations in the Canada Gazette, the new regulations are intended to do the following:
Consolidate and streamline the requirements set out in the three existing regulations (which will be repealed);
Provide the flexibility to more efficiently implement the electronic movement tracking system currently being developed;
Adjust and harmonize the definitions of “hazardous waste” and “hazardous recyclable material”; and
Improve the management of permits and overall administration of the regulations.
The proposed regulations should contribute to further regulatory alignment with the United States by reducing regulatory differences and increasing regulatory compatibility. Approximately 97 percent of the transboundary movements of hazardous waste and recyclables are between Canada and the US.