Summary of Environmental Law in Canada

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8 Protection of the Atmosphere

Both the federal government and the provincial governments have constitutional authority over aspects of air quality. The federal government has the constitutional authority to control air pollution, primarily through its powers to protect public health and safety and to regulate transboundary effects. Also, the federal government sets standards for vehicles and other polluting equipment that is manufactured or sold in Canada.

Provincial governments have authority over air quality due to their constitutional powers to control natural resources, to regulate any matters related to property and civil rights within the province, to establish and control municipal institutions, which may regulate air quality through delegated powers from the province, and generally, through their constitutional power over all matters of a merely local or private nature in the province.

8.1 Establishing Air Quality Standards

The Canadian Environmental Protection Act, 1999 (CEPA 1999) allows the Government of Canada to carry out scientific research to support environmental- and health-related issues with respect to air quality; to develop and apply regulations with respect to emissions from vehicles, engines and fuels; to submit reports on pollutant emissions; and to fulfill its international commitments with respect to air quality.

Under CEPA, the federal government has regulated maximum thresholds for certain emissions; these regulations are binding for certain types of facilities.

The Government of Canada has also adopted a ten-year Clean Air Agenda that aims to improve air quality through the following five means:

• reduction of trans-boundary emissions,
• reduction of emissions from the transportation sector,
• reduction of primary industrial emissions,
• improvements in science, and
• public participation.

Through the Canadian Council of Ministers of the Environment (CCME), the federal government contributes to the adoption of Canada-wide air quality standards. These standards are only guidelines and have no binding force, however, and their implementation is left up to the various jurisdictions.

The efforts of the CCME with respect to air quality include the signing of the Canada-wide Acid Rain Strategy Post-2000 by the Ministers of Energy and the Environment on 19 October 1998 in order to protect the environment against acid rain. The main long-term objective of the Strategy is to “meet the environmental threshold of critical loads for acid deposition across Canada.”

Since the early 1990s, Canadian governments have cooperated through the CCME to address the gradual phase out of ozone-depleting substances such as CFCs and halons. The Federal-Provincial Working Group on Ozone-Depleting Substances and Halocarbon Alternatives developed Canada’s Strategy to Accelerate the Phase-Out of CFC and Halon Uses and to Dispose of the Surplus Stocks to methodically and affordably phase out the use of CFCs and halons in Canada. One important element of the Strategy is the National Action Plan for the Environmental Control of Ozone-depleting Substances (ODS) and their Halocarbon Alternatives (revised version, 2001). This plan establishes a national framework for a harmonized approach by the federal, provincial and territorial governments to implement an ozone-layer protection program.

Finally, Canada-wide Standards have been adopted under the aegis of the CCME for the following substances: benzene, dioxins and furans, mercury, and particulates and ozone.

Provinces also set air quality standards and often create institutions to regulate the application of those standards. For example, Ontario’s Environmental Protection Act sets out the desirable air quality criteria for various designated contaminants. A maximum amount of each of these contaminants found in the air is set out for periods ranging from one hour to over 30 days or up to a year.

There are also voluntary measures such as ARET, an industry led challenge program that ran from 1994 to 2000. The program aimed to eliminate emissions of 30 persistent bioaccumulative toxics (PBTs) through voluntary measures and to substantially reduce emissions of 87 other toxic substances. More specifically, ARET’s objective was to reduce PBT emissions by 90 percent and the other 87 substances by 50 percent before the year 2000. A total of 318 facilities from 171 businesses, representing eight industrial sectors in Canada participated in the ARET program. Collectively, the participants reduced emissions into the environment of toxic substances by almost 28,000 tonnes. Upon the program’s termination, Environment Canada began to work with a broad spectrum of stakeholders to develop a program to replace it: ARET 2. It is expected that ARET 2 will challenge participants to reduce or eliminate their emission and use of toxic substances related to their operations.

8.2 Stationary Sources

Generally, the provinces, not the federal government, regulate air pollution from fixed sources. For example, under the British Columbia Waste Management Act, provincial regulators issue permits to industries for discharges to air. In Ontario, the Environmental Protection Act determines emission standards for fixed sources. The Act allows the Ontario Ministry to require all potential sources of air pollution to first obtain permits to operate, and the Ministry can issue a variety of orders to prevent, reduce, or eliminate air pollution from these specific sources. The emission of air pollution that may cause various adverse effects is also an offence under the Act.

Other provinces have similar provisions. Some governments have tried different approaches to reduce industrial air pollution. For example, the Ontario dry cleaning regulation requires every dry cleaning facility to have at least one full-time employee having completed a special 12-hour environmental course on the best dry cleaning operating practices. The Quebec government has imposed a special tax on perchloroethylene since 1998. The tax revenues help finance an income tax credit for the replacement of an existing machine by a less polluting one in terms of perchloroethylene consumption.

8.3 Mobile Sources

The federal government also has certain powers related to air emissions from mobile sources that are given effect under the Canadian Environmental Protection Act, 1999 (CEPA 1999). This is especially the case for fuels and for vehicles, motors and equipment.

CEPA 1999 prohibits domestic production or importation of fuel if Canadian standards regarding fuel content are not met. The Act allows the federal government to create fuel regulations. Such regulations have been introduced for gasoline, limiting its lead and phosphorus content, and for contaminated fuel.

The federal government can also establish emissions standards for vehicles manufactured in or imported to Canada. The proposed On-Road Vehicle and Engine Emission Regulations will create stricter national emissions standards for on-road vehicles and a new regulatory framework under CEPA 1999. The proposed regulations will likely come into effect on 1 September 2003.

In June 2000, the Government of Canada concluded an agreement on Canada-wide standards for dust and ozone with the provincial governments (except Quebec) and territories. These standards establish target levels for ground-level ozone and dust particles for the year 2010.

Regulation of air pollution from other mobile transportation sources under federal jurisdiction include air pollution regulations under the Canada Shipping Act, restricting emissions from the operation of any fuel burning installation on a ship. In addition, the Canada Transportation Act and the Railway Act have air pollution and smoke control regulations, which limit the amount of smoke that railways can emit.

Provinces also have power to regulate mobile sources of air pollution. For example, in Ontario, the Environmental Protection Act complements the federal regulations by making it illegal for the owner or the seller of a vehicle to remove, bypass or otherwise prevent a pollution-control device system from functioning, or to permit the operation of the vehicle without using this device. The Act also sets out maximum levels of hydrocarbons, carbon monoxides, and visible emissions during the operation of a car, and establishes a testing procedure for determining whether the car meets these emission limits. It also requires gasoline manufacturers to produce less polluting blends of gasoline during summer months. Moreover, it defines a trial procedure to determine whether a vehicule satisfies the limits imposed by the law or not. The Ontario province has implemented a “Drive Clean” program which took effect in late 1998. Under this program, vehicles in areas with serious smog problems must pass an air emissions test as a pre-condition for registration renewal and at the time of resale and/or transfer of ownership. The province has also established an on-road smog patrol targeting grossly polluting vehicles on Ontario roadways. British Columbia has amended the Waste Management Act, allowing it to make regulations regarding low sulphur diesel, low vapour-pressure gasoline, and vapour recovery for fuels. The province has also instituted an annual inspection, called Air Care, for most cars in the province, requiring cars to comply with certain emission standards before auto insurance can be renewed. The new BC’s SCRAP-IT program, the first of its type in Canada, is designed to improve air quality by offering vehicle owners an incentive to voluntarily take older, high-polluting vehicles off the road.

8.4 Liability and Enforcement

The fact that the national ambient air objectives are guidelines rather than enforceable standards means that if these objectives are exceeded, no legal consequences follow. There have been only a handful of prosecutions for violations of the federal air emissions standards. However, enforcement under CEPA 1999 has been increasing, and the potential for large fines does exist in the Act.

At the provincial level, liability for violating air quality standards varies from one province or territory to the other. Generally, the level of enforcement activity has increased in the past few years. Some large cities such as Montreal, successfully monitor themselves air quality on their territory.

2003