November 28, 2005

Six GHGs added to Schedule 1 of CEPA 1999

Six greenhouse gases (GHGs) have been added to Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA 1999). They include: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). The inclusion of these six GHGs in Schedule 1 authorizes the government to enact a variety of preventive or control actions under CEPA 1999. It also clears the way for the putting in place of cross-cutting and sector-specific regulations during 2006 to ensure that Large Final Emitters meet their commitments to reduce GHG emissions by 45 megatonnes between 2008 and 2012.

The initiative is part of a regulatory approach considered by the government as the best vehicle for reducing GHGs from large industrial emitters in accordance with commitments made as part of Canada's updated climate change plan, Moving Forward on Climate Change, released last April. The plan indicated that the government would regulate GHGs under Parts 5 and 11 of CEPA 1999 and that in order to do so, GHGs would first have to be added to the list of substances in Schedule 1 of the Act.

The decision to add GHGs to CEPA is further supported by the worldwide scientific consensus that there is sufficient and compelling evidence to conclude that GHGs constitute or may constitute a danger to the environment on which life depends. The government drew upon one of the most recent scientific reports, the Third Assessment Report by the Intergovernmental Panel on Climate Change (IPCC), as the rationale supporting the addition. A summary of the IPCC's conclusions as they relate to CEPA 1999 may be viewed on-line at www.ec.gc.ca/CEPARegistry/documents/part/kyoto_ghg/CEPA_GHG_e.pdf.

The addition of the GHGs to Schedule 1 of CEPA follows a 60-day consultation period after a draft Order-in-Council was published in the September 3, 2005 edition of the Canada Gazette. The Final Order for GHGs will be published in the November 30, 2005 edition of the Canada Gazette Part II. The government will soon be releasing a consultation draft setting the out regulation elements.

By November 2, 2005, when the comment period had ended, Environment Canada had received a total of 27 submissions from various sources including provincial, industry, environmental non-government organizations (ENGOs) and private individuals. This includes three notices of objection from Alberta, the Canadian Chemical Producers' Association, and a private individual.

The submissions on the proposed Order focused on two main themes: those related to the science and those related to the use of CEPA to manage GHGs. For example, 17 comments received from ENGOs and private individuals expressed support for the proposed Order to add GHGs to Schedule 1 of CEPA 1999. Some of these comments explicitly stated that the science upon which the decision to list is based is both substantive and valid, and that CEPA 1999 is the appropriate legislative instrument to use for regulating GHGs.

A number of ENGOs suggested that the available science indicates that the GHGs meet all three criteria to be considered "toxic" under Section 64 of the Act. Specifically, they proposed that the Kyoto GHGs:

a. have or may have an immediate or long-term harmful effect on the environment or its biological diversity;

b. constitute or may constitute a danger to the environment on which life depends; or

c. constitute or may constitute a danger in Canada to human life or health.

One comment from an industry association did not oppose GHGs being controlled under CEPA 1999, but suggested that the implications of considering GHGs toxic under the Act should be addressed in the course of the forthcoming five-year review of CEPA 1999 by a parliamentary committee.

The remaining nine sets of comments received from industry, one province and a private individual, including those embedded in the Notices of Objection, opposed the addition of GHGs to Schedule 1 of CEPA 1999. Most of these submissions questioned whether the term "toxic" is appropriate for carbon dioxide and some of the other GHGs. Some parties suggested that removing the term "toxic" from CEPA 1999 or using another part of the Act (e.g. Part 7, International Air Pollution Provisions) instead of Part 5 might resolve this issue.

Some comments raised questions about the validity of the science upon which the proposed Order is based, while others expressed concern that there would be significant costs associated with implementation of regulations to control GHGs.

The response to comments report has been posted on Environment Canada's Web site, www.ec.gc.ca/CEPARegistry/documents/part/ghg_sched1/response.cfm.

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