Report on the state of play on air regulation in Canada

  • June 30, 2014

Day 1 of the NEERLS Spring Summit was focused on air pollution and Day 2 centred on climate change. Before I talk about the conference, I would like to discuss the distinction between air pollution and climate change.

I have been helping Pierre Marc Johnson get the word out about the Canada-EUComprehensive Economic and Trade Agreement (CETA). When I told Mr. Johnson that I was going to Ottawa to deliver a talk on air quality regulation in Québec, he asked if my presentation included greenhouse gases. I said “No, that’s separate.” “Smart,” he said. “People equate air pollution with direct effects on their health. It’s hard for them to think of carbon dioxide along those lines. The environmental movement tried to lump the two together and lost a lot of ground as a result.” True.

But then how do you convince people that they will have to cut back on their emissions, assuming you need their okay? In the U.S., the EPA needs no one’s permission. Legislation passed in the 1970s requires the agency to assess substances to determine whether they pose a risk to human health or wellbeing. If they do, it must regulate them as pollutants under the Clean Air Act. If the EPA fails to assess or regulate, people can take the agency to court and force it back to work. That is what happened in Massachusetts v. EPA.

When it enacted environmental laws in the 1970s, Congress anticipated the risk that, from time to time, the White House would be tempted to tie the EPA’s hands and prevent it from doing its job. So it gave the public the power to enlist the help of the courts to free EPA from its shackles. In Canada, we do not have citizen suits in our laws. The Canadian Environmental Protection Act allows people to draw attention to unenforced violations of the Act but does not involve the public in ensuring that the Act is implemented, for example, by getting emissions of toxic substances listed in Schedule 1, such as GHGs, regulated.

So EPA is writing rules setting limits on GHG emissions. Its jurisdiction to do so is being disputed in the courts every step of the way. One question being debated: does the fact that EPA must regulate mobile sources of GHG emissions mean that it may also regulate stationary sources? At the summit, presenters from the U.S. complained that this is a very cumbersome approach to dealing with climate change, and they blamed a paralyzed Congress for failing to enact framework legislation on the subject. My feeling is the Clean Air Act process may be cumbersome, but at least things are moving along.

Our federal policy is to move no faster than the U.S. And the provinces are free to do as they please. There’s a patchwork of local initiatives on the books, including carbon taxes, little emissions trading programs, and plans to capture CO2 and either store it underground or fiddle with it at a molecular level to transform it into a marketable product. Vulnerability to climate change (measured both as a function of the increase in the number of extreme weather events and increasing human and financial exposure, such as the greater number of people at risk because of the rapid expansion of human settlements – with finished basements – in floodplains) is becoming a major concern for the insurance industry. Currently, federal-provincial disaster-relief arrangements have resulted in multi-billion liabilities that are not accounted for in government budgets.

Students at Yale are busy crunching data from all over the place to compare countries on air quality. Their environmental performance index is attracting attention, particularly from nations at the bottom of the scale and those that have slipped in the ranking. The EPA is focusing air pollution enforcement efforts to go after low-hanging fruit: leak detection; exceedances that occur during facility startups, malfunctions and shutdowns; and issuing the equivalent of 48-hour tickets to speed up compliance instead of resorting to protracted prosecutions. People regret that back in the 1970s, Congress shied away from setting timelines for emissions reductions, opting instead to require operators to upgrade their equipment as and when their operations expand, with lots of interpretive loopholes that result in missed opportunities to reduce or avoid air pollution in the U.S.

Canada’s governments are still working on setting up a national air quality management system. This kind of system has been in place in the U.S. for a long time. It requires air quality monitoring in airsheds and mandates action plans for “nonattainment” areas. In those regions, facilities face more stringent standards, permitting of new facilities may be put on hold, and cap and trade systems can be used to try to maximize efficiencies (think of now-defunct New Jersey Emissions Trading Program). If a state dilly-dallies on reducing ambient air pollution, the EPA takes over.

Conference speakers addressed noise and odour. Waste-diversion policies are resulting in odour problems as municipalities begin composting on an industrial scale. Residential developments are sprouting up near agricultural and industrial operations, much to the dismay of the latter. In these types of situations, odour complaints abound. Ontario and Quebec are already working with the concept of “odour units.” Questions include whether and how to regulate, and whether the public can use class actions to obtain injunctive relief or even damages. Quebec continues to have a legislated moratorium on class actions for noise and odours from snowmobile clubs.

This was a conference with way more graphs than bullet points. The overwhelming message was that climate change is happening quickly and governments are not responding apace. Polls show that Canadians are not interested in paying higher prices for things in order to curb carbon emissions. Maybe they don’t need to: B.C.’s successful carbon tax is more than offset by a reduction in income taxes. People are, however, very concerned about spills of fossil fuels, and those concerns are resulting in “NIMBY” responses to pipeline proposals.

I don’t think it really matters whether GHGs are called pollutants or something else. The fact is, climate science and proposed mitigation and adaptation measures go way over our heads (lawyers and other laypeople). What seems clear is that markets are waiting for a signal from governments, and governments must agree on a plan, preferably a simple one.

About the Author

Eco-Bulletin editor Katia Opalka is a partner with Lavery LLP in Montreal, a CBA Partner Firm.