Canada Begins Public Consultations on Initiatives Supporting CEPA Amendments

On October 5, 2024, Canada released three significant documents that move it closer to implementing the 2023 amendments to the Canadian Environmental Protection Act, 1999 (CEPA). The 2023 legislation, Strengthening Environmental Protection for a Healthier Canada Act (Bill S-5), requires that decisions made under CEPA respect the right to a healthy environment. Canada has released a draft implementation framework setting out how the Minister of the Environment and the Minister of Health (the ministers) will consider the right in administering CEPA. The bill also requires the creation of a publicly available “Watch List” of substances determined to be capable of becoming toxic under CEPA to inform Canadians and businesses of substances that they may wish to avoid. Canada has published a proposed Watch List Approach that will inform the process and considerations for substances to be included on the Watch List. The bill directs the ministers to develop a new plan of chemical management priorities and will propose a new regime to manage toxic substances of highest risk. Canada has published a proposed plan of priorities under CEPA. Comments on each of the three documents are due December 4, 2024.

Draft Implementation Framework for the Right to a Healthy Environment

The Minister of the Environment announced the availability of the draft implementation framework for the right to a healthy environment (draft framework) on October 5, 2025. The draft framework notes that the right applies only to the administration of CEPA. According to the draft framework, CEPA defines a healthy environment “as one that is clean, healthy, and sustainable.” The draft framework elaborates on the substantive and procedural elements of the right in the context of CEPA, “explain[ing] how CEPA contributes to an environment that is protected from harmful substances, pollutants, and waste and that has clean and healthy air and water, a sustainable climate, and healthy ecosystems and biodiversity.” The draft framework notes that the right to a healthy environment may also include the procedural elements of access to information, participation in decision-making, and access to effective remedies in the case of environmental harm.

The draft framework elaborates on three new principles — environmental justice, intergenerational equity, and non-regression — and outlines how these principles can be considered throughout CEPA decision-making. According to the framework, scientific, environmental, health, social, and economic factors “may be relevant in interpreting and applying the right [to a healthy environment] and in determining the reasonable limits to which it is subject.”

The draft framework states that CEPA recognizes the role of Indigenous knowledge in informing decisions about the protection of the environment and human health. Annex 1 of the draft framework proposes a mechanism to develop an Indigenous Knowledge Policy Framework for CEPA decision-making, “while recognizing that working in relationship with specific communities is necessary to ensure that the distinct knowledge systems, science, worldviews, and values of First Nations, Inuit, and Métis are bridged, braided, and woven into CEPA activities in meaningful and appropriate ways.”

The draft framework includes examples of key decision-making points in the administration of CEPA where Environment and Climate Change Canada (ECCC) and Health Canada (HC) will consider the right to a healthy environment and describes mechanisms supporting the protection of the right, including both existing and new tools and policy approaches. Annex 2 of the draft framework provides a series of guiding considerations for ECCC and HC decision-makers to incorporate, as appropriate, within the various mechanisms and decisions.

Canada will hold an information session on the draft implementation framework on November 5, 2024. Registration for the information session is open. Comments on the draft framework are due December 4, 2024. Canada intends to publish the final implementation framework in summer 2025.

Proposed Watch List Approach

The CEPA amendments require the Minister of the Environment to compile and maintain a list that specifies substances that the ministers have reason to suspect are capable of becoming toxic or that have been determined to be capable of becoming toxic (the Watch List). On October 5, 2024, the Minister of the Environment announced the availability of the proposed Watch List Approach (proposed approach) that describes considerations and processes associated with adding and removing substances from the Watch List.

The Watch List will include a list of substances that have been assessed as not currently meeting the criteria for toxic substances under CEPA Section 64 and that may be of potential concern if exposure or hazard characteristics were to change in the future. Under the proposed approach, the Minister of the Environment may add a substance to the Watch List when the ministers have reason to suspect it is capable of becoming toxic or if they have determined it to be capable of becoming toxic. The proposed approach states that the Minister of the Environment may add a substance to the Watch List:

• When the ministers propose addition to the Watch List following an assessment under CEPA Part 5;

• When a review of a decision of another jurisdiction under CEPA Section 75(3) that, in the ministers’ opinion, is based on scientific considerations and is relevant to Canada indicates that the substance is capable of becoming toxic; or

• Based on the evaluation of other information by the ministers.

The proposed approach states that in identifying a substance to be added to the Watch List, the ministers may consider information including hazardous properties or the likelihood that an increase in use or change in exposure (route or duration) may increase the risk profile of the substance. These considerations could include:

• The severity or type of effect;

• The physical or chemical properties of the substance;

• The function and use of the substance;

• The environmental fate of the substance;

• The potential for increases or changes in current uses and exposures; or

• The potential for future uses and exposures.

The proposed approach notes that addition of a substance to the Watch List will follow a public consultation process. Under the proposed approach, the Minister of the Environment must delete a substance from the Watch List if:

• It is added to CEPA Schedule 1; or

• The ministers no longer have reason to suspect that the substance is capable of becoming toxic.

Although adding a substance or class of substances to the Watch List will not impose new requirements or restrictions concerning the substance or class, according to the proposed approach, the departments may consider follow-up activities in the future. Examples of follow-up activities include those used to obtain additional information on the uses, hazards, or changes in levels of exposure to the substance, such as:

• Significant New Activity (SNAc) provisions: The SNAc provisions in CEPA require a person to provide the government with information about a substance when proposing to use, import, or manufacture the substance for a significant new activity so that proposed new activity can be assessed, and risk management action imposed, if necessary;

• Environmental monitoring and biomonitoring: Environmental monitoring and biomonitoring are used to collect data on the presence of substances in wildlife, air, water, or humans to inform potential for exposure. These activities may be used to establish baseline concentrations of chemicals or track trends in concentrations over time; and

• CEPA Section 71 notices: Section 71 notices are mandatory information-gathering notices published by the government to collect scientific data (for example, toxicological studies) or commercial data (for example, substance use and quantities) to monitor commercial activity in Canada.

Comments on the proposed approach are due December 4, 2024.

Proposed Plan of Priorities under CEPA

The CEPA amendments require that the ministers develop, consult on, and publish a plan of priorities by June 13, 2025. On October 5, 2024, the Minister of the Environment announced the availability of the proposed plan of priorities (proposed plan). Under CEPA Section 73(1), the plan of priorities will specify:

• The substances to which the ministers are satisfied priority should be given in assessing whether they are toxic or capable of becoming toxic;

• Activities or initiatives in relation to assessing, controlling, or otherwise managing the risks to the environment or to human health posed by substances that are or will be undertaken under an Act of Parliament for whose administration either minister is responsible and which the ministers are of the opinion should be prioritized; and

• Activities or initiatives to promote the development and timely incorporation of scientifically justified alternative methods and strategies in the testing and assessment of substances to replace, reduce, or refine the use of vertebrate animals.

According to the proposed plan, the key drivers for selecting substances as priorities for assessment include:

• Substances that are hazardous to human health or the environment, including carcinogens, mutagens, reproductive toxicants, and endocrine disrupting substances;

• Substances impacting populations or environments that may be at increased risk due to greater exposure or greater susceptibility;

• Substances with the potential to contribute to cumulative risks;

• Very hazardous substances that are capable of long-range transport (VH-LRT);

• Substances with known hazardous properties that are used in products available to consumers; and

• Potential substitutes for substances with known toxicity.

Canada gave higher priority to substances identified through multiple drivers. The proposed plan notes that where data are available to show that effects may be consistent within a class of substances, the class is prioritized. In addition to the drivers identified above, any person may request under CEPA Section 76 that the ministers assess a substance. When a request is received, the ministers will evaluate the request and decide whether to add the substance to the plan.

The proposed plan includes the following list of substances prioritized for assessment. Substances proposed to be added to the list through the public request mechanism under CEPA Section 76 are marked with an asterisk (*):

Specific Substances

Certain Substances within the Following Groups

More information on the substances prioritized for assessment, including rationales for their selection and a list identifying the specific substances being considered for inclusion in the various assessments, along with proposed timelines for initiating these assessments, are available in the work plan  on the “Proposed Plan of Priorities: substances prioritized for assessment under CEPA” web page.

According to the proposed plan, ECCC and HC are undertaking new and expanded risk management activities and initiatives, including:

• Substances of highest risk regime: The substances of highest risk regime is for the management of certain substances found to be toxic under CEPA that pose the highest risk to human health or the environment by giving priority to prohibition. Under CEPA Section 77, the criteria for substances of highest risk will be set out in regulations developed in consultation with stakeholders. The proposed plan notes that giving priority to prohibition could require that the substances be phased-out entirely; that activities or releases of concern be prohibited; or that all new uses be prohibited unless it can be shown that there are no safer alternatives and that the use can be undertaken safely.

• Permitting regime for existing substances: According to the proposed plan, HC and ECCC intend to develop regulations outlining a new permitting regime for toxic substances. The proposed plan states that the regulations “will enable the federal government to issue a permit to allow the use of a toxic substance if it is demonstrated that a restricted activity can be undertaken safely and that there are no feasible alternatives.”

• Labeling of substances in products: Following the 2022 Notice of Intent (NOI) to support increased protection and safety along the supply chain and to inform government, business, and consumer decisions, the proposed plan states that ECCC, with support from HC, is developing a strategy on labeling in 2024. The strategy will outline considerations for improving supply chain transparency and labeling instruments for priority substances in products along with accompanying policy and compliance promotion guidance documents. More information on the 2022 NOI is available in our November 7, 2022, memorandum.

• Addressing hotspots: The proposed plan states that as a first step towards addressing pollution hotspots, “work is underway to define what constitutes an air pollution hotspot and to articulate the federal role in addressing air pollution in these locations.” This work will help identify where geographically targeted regulatory instruments may be needed, using new authorities under CEPA, to address local pollution issues and to protect further the environment, communities, and populations that are disproportionately impacted by pollution.

Comments on the proposed plan are due December 4, 2024. Registration is open for an informational webinar on the proposed plan and the draft strategy on vertebrate animal testing on October 16, 2024.

Commentary

The 2023 bill was the first significant reform to CEPA in more than 20 years. CEPA uses a risk-based chemical regulatory scheme, similar to the Toxic Substances Control Act (TSCA) in the United States, and the amendments maintain this approach. The proposed initiatives are ambitious, with the proposed plan of priorities setting out a multi-year, integrated plan for the assessment of substances. The creation of a “Watch List” of chemicals, however, could effectively serve as a list of chemicals for deselection. Any person will be able to file a written request that a substance be assessed to determine whether it is toxic or capable of becoming toxic. These three initiatives closely follow the publication in September 2024 of a draft strategy to replace, reduce, or refine vertebrate animal testing under CEPA. With comments on the draft strategy due November 13, 2024, and comments on the three initiatives proposed on October 5, 2024, due December 4, 2024, stakeholders have much to review and digest.

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