Vol. 139, No. 24 — November 30, 2005

Registration
SOR/2005-345 November 21, 2005

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999

P.C. 2005-2037 November 21, 2005

Whereas, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), the Minister of the Environment published in the Canada Gazette, Part I, on September 3, 2005, a copy of the proposed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999, substantially in the form set out in the annexed Order, and persons were given an opportunity to file comments with respect to the proposed Order or to file a notice of objection requesting that a board of review be established and stating the reasons for the objection;

And whereas, pursuant to subsection 90(1) of that Act, the Governor in Council is satisfied that the substances set out in the annexed Order are toxic substances;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment and the Minister of Health, pursuant to subsection 90(1) of the Canadian Environmental Protection Act, 1999 (see footnote c), hereby makes the annexed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999.

ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

AMENDMENT

1. Schedule 1 to the Canadian Environmental Protection Act, 1999 (see footnote 1) is amended by adding the following after section 73:

74. Carbon dioxide, which has the molecular formula CO₂

75. Methane, which has the molecular formula CH₄

76. Nitrous oxide, which has the molecular formula N₂O

77. Hydrofluorocarbons that have the molecular formula C_nH_xF_(2n+2-x) in which 0<n<6

78. The following perfluorocarbons:

(a) those that have the molecular formula C_nF_2n+2 in which 0<n<7; and

(b) octafluorocyclobutane, which has the molecular formula C₄F₈.

79. Sulphur hexafluoride, which has the molecular formula SF₆

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Description

The purpose of this Order is the addition of the Greenhouse Gases (GHGs) specified in the Kyoto Protocol to the United Nations Framework Convention on Climate Change to the Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA 1999):

Carbon dioxide (CO₂),

Methane (CH₄),

Nitrous oxide (N₂O),

Hydrofluorocarbons (HFCs),

Perfluorocarbons (PFCs),

Sulphur hexafluoride (SF₆).

Adding the six GHG substances to Schedule 1 enables the Government to use a variety of preventive or control actions under CEPA 1999.

Background

These six substances, or groups of substances, were included within the Kyoto Protocol because they have significant global warming potentials (GWPs), are long-lived and therefore of global concern. Furthermore given historical emissions from anthropogenic sources, and the quantity of emissions expected over the next century, they have the potential to contribute substantially to climate change. GHGs, upon being emitted to the atmosphere, alter its composition, thereby affecting its chemical and physical properties. The radiative properties of GHGs, and the role they play in the energy balance of the Earth are well established. As a result of human activities, predominantly the combustion of fossil fuels, the atmospheric concentrations of GHGs have increased substantially since the onset of the industrial revolution. This has led to an enhanced greenhouse effect – or global warming – and other climatic changes.

The Montreal Protocol on Substances That Deplete the Ozone Layer and international science assessment processes were used in the late nineteen-eighties to identify the specific Ozone Depleting Substances (ODSs) that posed the most risk of harm to the stratospheric ozone layer, and these were subsequently added on Schedule 1 of CEPA 1999. A similar process has been followed to pursue adding the Kyoto Protocol's basket of GHGs (i.e. CO₂, CH₄, N₂O, PFCs, HFCs and SF₆) to Schedule 1 of CEPA 1999. The Kyoto GHGs are those that pose the most risk of harm with regard to climate change. The only other long-lived GHGs that have contributed significantly to climate change over the past century are the halocarbons - Chlorofluorocarbons (CFCs) and Hydrochlorofluorocarbons (HCFCs) - which are already being controlled under the Montreal Protocol.

The Third Assessment Report of the Intergovernmental Panel on Climate Change (IPCC TAR) (see footnote 2) provides the scientific basis for the recommendation for adding the six GHGs identified in the Kyoto Protocol to Schedule 1 of CEPA 1999. The IPCC has concluded that the Earth's climate has already changed over the 20th century, and that the warming, at least that of the Northern Hemisphere, is likely unprecedented during the past 1000 years. They further conclude that most of the warming of the past 50 years is likely to have been due to increase emissions of GHGs from human activities.

The IPCC has also clearly demonstrated that the amount of future global warming will be dependent on the amount of GHG from human activity that is emitted in the future. The aggregate quantity of emissions in the future will be influenced by development choices made by individual countries worldwide. In the absence of GHG policy interventions, even the most optimistic (i.e. lowest growth) emission scenarios indicate that atmospheric temperature will increase over the next 100 years and beyond. This warming of the Earth's atmosphere will be accompanied by other climatic changes that will impact on both the natural and human systems of the Earth. Impacts are projected to become increasingly negative the larger and more rapid the climate change.

Implementing the "Plan for Honouring our Kyoto Commitment"

In "Project Green: Moving Forward on Climate Change — A Plan for Honouring our Kyoto Commitment" (see footnote 3) (www.climatechange. gc.ca) the Government has laid out a comprehensive strategy for reducing Canadian emissions of greenhouse gases.

The Plan addresses a variety of sources of GHGs in Canada such as transportation, energy, mining, manufacturing and residential sectors. One key aspect of the Plan is to establish regulatory emission intensity standards for large industrial emitters of GHGs. These large emitters are also known as Large Final Emitters (LFEs). LFE sectors are those sectors with average annual emissions per facility of at least 8kt CO₂ equivalent (CO₂e), and average annual emissions per $1000 of output of at least 20kg of CO₂e. They are large contributors to our GHG emissions — just under 50 percent of total Canadian GHG emissions. Canada's LFEs include companies in the mining and manufacturing, oil and gas, and thermal electricity sectors. These sectors while making an important contribution to Canada's economic base, must also play a significant role in meeting Canada's climate change goals.

The purpose of the LFE system is to secure emission reductions from Canada's large emitters through a system that is market-based and in line with the Government of Canada's policy regarding Smart Regulations. The LFE system will achieve significant reductions in GHG emissions in a manner that supports the continued competitiveness of Canadian industries.

The LFE system will cover about 700 companies operating in Canada.

In July of 2005, the Government published a Notice of Intent, outlining how the Federal Government plans to implement its climate change policy with respect to greenhouse gas (GHG) emission reductions by LFEs. The Notice of Intent provided the following summary of the key points of the LFE system.

• A key element is partnership with provinces and territories.
• This partnership includes the maximum use of equivalency agreements authorized under CEPA 1999, in order to ensure national consistency of the mandatory emission intensity targets, but allowing for a single regulator in any given jurisdiction, if desired.
• Consultations on the development of the proposed regulations will be based on current practice, which will include consulting with the CEPA National Advisory Committee (CEPA NAC).
• The CEPA 1999 Five-Year Review would provide an opportunity to make legislative changes that would complement the development and implementation of the proposed LFE regulations.
• Targets would be based on sectoral emissions intensity.
• Proposed longer-term targets would be determined by the Government, in partnership with provinces and territories and in consultation with industry, ENGOs, and other stakeholders.
• Proposed emissions intensity targets for activities carried out in new large facilities and major transformations or expansions of existing facilities would be based on Best Available Technology Economically Achievable.
• Proposals for the treatment of emission reductions resulting from clean energy, demand-side management, and co-generation are under development.
• Consideration will be given to establishing minimum emissions thresholds for companies (and, possibly, facilities) to ensure the regulatory burden is commensurate with the environmental benefits to be achieved.
• Companies would have several options for meeting their targets: reducing their own emissions; paying into a recognized technology investment fund; or purchasing domestic offset credits, or international credits, including "greened" international credits.
• A price assurance of $15/tonne of carbon dioxide equivalent would be available for the 2008-2012 period.
• The Federal Government would work towards developing a policy not to seek a penalty greater than $200 per excess tonne of emissions unless circumstances dictate otherwise.
• Monitoring, quantification, and reporting requirements would be implemented to ensure transparency and accountability and would build on the existing federal-provincial National Reporting Steering Committee process.
• The LFE regulations would be fully consistent with the various commitments that have been made by the Federal Government to industry, including existing Memoranda of Understanding regarding emission targets that have been signed with several industry associations and companies.

The Order provides the enabling mechanism for implementing this strategy.

Authority

Under subsection 90(1) of CEPA 1999 (or "the Act"), the Governor in Council, acting on the recommendation of the Ministers of the Environment and of Health, may add a substance to Schedule 1 of the Act if the Governor in Council is satisfied that the substance meets any of the criteria set out in section 64 of CEPA 1999.

Once a substance is added to Schedule 1 of CEPA 1999, the Government may proceed in developing risk management options.

Assessment of Greenhouse Gases based on the Third Assessment Report of the IPCC

There is growing evidence that climate change is already occurring and the Earth's climate has changed since the pre-industrial era. Globally, average surface temperatures rose about 0.6°C over the 20th century, with North America warming by 0.7°C during the same period. In Canada, there have been fewer days with extreme low temperatures during winter, spring and summer, and more days with extreme high temperatures during winter and spring. The changes in daily minimum temperatures have been larger than the changes in daily maximum temperatures. This warming has been accompanied by a suite of other changes in the climate system that together give a collective picture of a warming world. For example, there has also been an increase in the frost-free period, and an increase in cloudiness. Precipitation in Canada has increased by an average of more than 10% over the 20th century. There have also been decreases in snow depth, in Arctic sea-ice extent and in the annual duration of lake and river ice cover. Most of the global warming of the past 50 years is likely to have been due to increases in greenhouse gas concentrations. Atmospheric GHG concentrations and their radiative forcings have generally increased over the 20th century as a result of human activities. The rates of increases for carbon dioxide and methane are unprecedented.

It is clearly demonstrated that the amount of future global warming will be dependent on the amount of greenhouse gas from human activity that is emitted in the future. Carbon dioxide concentrations, globally averaged surface temperatures and sea level are projected to increase under all IPCC emission scenarios during the 21st century. The projected warming of 1.4–5.8°C over the period 1990 to 2100 is very likely to be without precedent during the last 10,000 years. Global mean sea level is projected to rise between 10 and 90 cm by the end of this century. The IPCC further makes a number of statements of relevance to countries like Canada. For example, it is very likely that nearly all land areas will warm more rapidly than the global average, particularly those at northern high latitudes in the cold season. There is also projected to be a decrease in diurnal (see footnote 4) temperature range in many areas, with nighttime lows increasing more than daytime highs. More intense precipitation events are very likely, and there is likely to be an increase in summer continental drying and associated risk of drought over most mid-latitude continental interiors. The earth's cryosphere (snow, ice and permafrost) will continue to respond to the warming. The widespread retreat of glaciers and ice caps is projected to continue, as is the decrease in snow cover, permafrost and sea-ice extent.

These climatic changes have far reaching implications for the natural and human systems. Impacts are expected to become increasingly negative the larger and more rapid the changes in climate.

Environment Canada (EC) has prepared an EC Science Synthesis Report (see footnote 5) on the findings of the Third Assessment Reports of IPCC in the context of CEPA 1999. The purpose of this Report is to assess whether the GHGs meet one or more of the criteria set out in section 64 of the Act and considers only the scientific information presented in the IPCC TAR.

Impact on Natural Systems

An organism will respond to a change in its environment, including climate change, either by migrating or adapting, depending, among other things, on the magnitude and rate of climate change. In the event where the organism is unable to respond in either of these two ways, its local population will face extinction. With regard to entire ecosystems, modeling studies have shown that migration of ecosystems is unlikely to occur. Instead, species composition and/or dominance within the system will change. The outcome of these changes, some of which may take many years, decades or even centuries to occur, will be ecosystems unlike those of today. As this process unfolds, there may be large scale losses of unique contemporary ecosystems, over relatively short periods of time.

Based on the available international science presented in the IPCC TAR, there is high confidence in the collective evidence to support a conclusion that recent regional changes in temperature have had discernible impacts on many physical and biological systems. Examples of observational changes with linkages to climate change include shrinkage of glaciers; thawing of permafrost (see footnote 6); shifts in ice freeze and break-up dates on rivers and lakes; increases in rainfall and rainfall intensity in most mid- and high latitudes of the Northern Hemisphere; lengthening of growing seasons; and earlier flowering dates of trees, emergence of insects, and egg-laying in birds. In about 80% of the biological cases and about 99% of the physical cases the changes are consistent with well-established relationships between temperature and physical and biological processes. The observed changes indicate a sensitivity in these systems to climate changes of a magnitude much smaller than those projected for the coming century.

The EC Science Synthesis Report also indicates that according to the IPCC TAR there is high confidence that diversity in ecological systems will be adversely affected by climate change and sea-level rise in the future, with an increased risk of extinction for some species currently listed as "critically endangered" and of currently "endangered or vulnerable" species becoming even rarer in the 21st century. Recent modeling studies continue to show potential for significant disruption of ecosystems under climate change. As a class of ecosystems, inland waters are particularly vulnerable to climate change. Within these systems, the impacts include reduction and loss of lake and river ice, loss of habitat for coldwater fish, and increases in extinctions and invasions of exotics. Other natural ecosystems at risk include coral reefs, mangroves, and other coastal wetlands; montane ecosystems that are restricted to the upper 200-300 m of mountainous areas; prairie wetlands; remnant native grasslands; ecosystems overlying permafrost; and ice edge ecosystems that provide habitat for polar bears and penguins. Many of these ecosystems exist within Canada.

The Arctic region is identified as being extremely vulnerable to climate change, and major physical and ecological impacts are expected to appear rapidly there as warming in northern high latitudes is expected to be greater than the global average. There will be different species compositions on land and sea, poleward shifts in species assemblages, and severe disruptions for communities of people who lead traditional lifestyles.

Impacts on Systems on which Human Life Depends

Direct impacts of climate change on water resources and agriculture include changes to precipitation patterns, timing of snowmelt, glacier retreat, evaporation of soil moisture and surface water, and changes in crop yields. Climate change would further exacerbate the current water shortage and water quality problems in many water-scarce areas of the world. Climate change is projected to reduce stream flow and groundwater recharge in many parts of the world. It is projected that approximately 1.7 billion people presently living in water scarce regions of the world will increase to approximately 5 billion by the year 2025, depending on the rate of population growth.

Degradation of soil and water resources is one of the major future challenges for global agriculture. These processes are likely to be intensified by adverse changes in temperature and precipitation. Although some crops would benefit from modest warming and increases in CO₂, effects would vary among crops and regions. Some declines will occur due to drought in some areas, including parts of the Canadian Prairies. Overall climate change is likely to tip agriculture production in favour of well-to-do and well-fed regions at the expense of less well-to-do and less well-fed regions. By the 2080s, the additional number of people at risk of hunger as a result of climate change is estimated to be about 80 million.

Changes in extreme events and sea-level rise are arguably the most significant impacts of climate change for the environment on which human life depends, in the near term, having impacts on human safety and security as well as on the availability of fresh water, arable land, and agricultural productivity. People living in coastal zones will generally be negatively affected by sea-level rise. Highly diverse and productive coastal ecosystems, coastal settlements, and island states will continue to be exposed to pressures whose impacts are expected to be largely negative and potentially disastrous in some instances. Projected sea-level rise will increase the average annual number of people flooded in coastal storm surges. Tens of millions of people living in deltas, in low-lying coastal areas, and on small islands will face risk of displacement.

The vulnerability of human societies to climate extremes is demonstrated by the damage, hardship and death caused by events such as droughts, floods, heat waves, avalanches, and storms, hurricanes and cyclones. The frequency and magnitude of many extreme climate events increase even with a small temperature increase and will become greater at higher temperatures. The amplitude and frequency of extreme precipitation events is very likely to increase over many areas and the return periods for extreme precipitation events are expected to decrease. This would lead to more frequent floods and landslides with attendant loss of life and other health impacts, property damage, and loss to infrastructure and settlements. In addition, human settlements along low-lying coastlines are vulnerable to the combined effects of sea-level rise and storm surges. These settlements, and the coastal resources they depend on, would be threatened with flooding, wave damage and permanent inundation.

Greenhouse gas forcing in the 21st century could set in motion large-scale, high impact, non-linear, and potentially abrupt changes in the Earth's physical and biological systems that could have severe consequences at regional or global scales. Although the probabilities of triggering such events are poorly understood they should not be ignored, given the severity of their consequences. Some of these changes have low probability of occurrence during the 21st century; however, greenhouse gas forcing in the 21st century could set in motion changes that could lead to such transitions in subsequent centuries and some of these changes could be irreversible over centuries to millennia. Events of this type that might be triggered include complete or partial shutdown of the North Atlantic and Antarctic Deep Water formation, disintegration of the West Antarctic and Greenland Ice Sheets, and major perturbations of biosphere-regulated carbon dynamics.

Impacts on Human Life

If heat waves increase in frequency and intensity, (as they are very likely to do), the risk of death and serious illness would increase, principally in older age groups and the urban poor. The greatest increases in thermal stress are forecast for mid- to high-latitude cities, especially in populations that have limited resources. The effects of an increase in heat waves often would be exacerbated by increased humidity and urban air pollution. There is medium to high confidence of expansion of areas of potential transmission of malaria and dengue by 2050 to 2100. An increase in deaths, injuries, and infections associated with extreme weather such as floods and storms could also occur as a result of climate change.

In Canada, the projected increased frequency and severity of heat waves may lead to an increase in illness and death, particularly among young, elderly and frail people, especially in large urban areas. Acclimatization may be slower than the rate of ambient temperature change. Vector-borne diseases, including malaria and dengue fever, may expand their ranges in the United States and may develop in Canada.

Based on the above and the more detailed scientific knowledge, as documented in the IPCC TAR and summarized in the EC Science Synthesis Report, there is sufficient evidence to conclude that greenhouse gases constitute or may constitute a danger to the environment on which life depends, thereby satisfying criterion (b) as set out in section 64 of CEPA 1999. This is the legislative basis for adding these six greenhouse gases to Schedule 1 of CEPA 1999.

Alternatives

In light of the above, the Minister of the Environment and the Minister of Health have determined that the alternative of not recommending the addition of these Greenhouse gases to Schedule 1 of CEPA 1999 is not acceptable. If the government were not to add these substances, it would be unable to use CEPA 1999 Parts 5 and 11 as the legislative vehicle for implementing the Large Final Emitters system. There is no other federal legislation that can target risk management actions for GHGs at the specific sectors and substances. Furthermore, CEPA 1999 allows for cooperative implementation with provinces, territorial or aboriginal governments and provides for flexible compliance options. Using the existing legislation is supportive of the Government's policy on Smart Regulations.

The addition of a substance to Schedule 1 legally enables the federal government to take appropriate actions and to make a full range of management instruments available under CEPA 1999, including regulations.

Benefits and Costs

There will be no incremental costs to the public, industry or governments associated with this Order for adding the six GHG substances to Schedule 1 of CEPA 1999. The costs and benefits would be assessed during the risk management phase, when the government will undertake an appropriate assessment of the potential impacts of a suite of instruments. These measures and technologies are expected to be considered in consultation with various federal government departments, provincial and territorial governments and other stakeholders.

Consultation

IPCC Consultations Process

As described above, this Order is based on the international scientific knowledge presented in the Third Assessment Report of the IPCC, and it was not deemed necessary to undertake assessments of the six Kyoto GHGs specifically for Canada. Canada has been actively involved in the writing and reviewing process of all the reports published by the IPCC.

IPCC does not conduct new research or monitor climate-related data. Its mandate is to assess, on a comprehensive, objective, open and transparent basis, the scientific, technical and socio-economic information on climate change that is available around the world in peer-reviewed literature, journals, books and, where appropriately documented, in industry literature and traditional practices. This approach ensures that IPCC reports provide balanced reporting of viewpoints and are policy relevant but not policy-prescriptive or policy-driven.

The following brief description of the IPCC writing and review process highlights the scope of the consultations that take place prior to the publication of any IPCC report on climate change (see footnote 7).

IPCC Writing and Reviewing Process

Approximately 1,000 experts from all over the world have been directly involved in drafting, revising and finalizing IPCC reports. In addition, about 2,500 experts participate in the review process. IPCC authors have been nominated by governments and by international organizations and come from universities, research centres, business and environmental associations, and other organizations in approximately 120 countries. Through this worldwide network the IPCC seeks to represent all geographic regions and to reflect a diverse range of scientific, technical and socio-economic views and expertise.

Working groups, with lead authors for each chapter of the assessment reports, are established and are responsible for representing the range of prevailing scientific-technical viewpoints and expertise as well as ensuring appropriate representation of experts from developing and developed countries, and countries with economies in transition.

The lead authors write a first draft of the assessment report based mostly on peer-reviewed literature, making sure to include literature published in languages other than English. They also consider the most recent scientific findings and reports from national academies of sciences, industry and United Nations bodies, carefully weighing any lack of previous peer review. Diverging viewpoints that are scientifically sound are clearly identified in the draft text.

To ensure that they are credible, transparent and objective, the IPCC reports pass through a rigorous two-stage review process.

During the first review, the drafts are circulated to specialists with significant expertise and publications in the field. The reviewers comment on the completeness and objectivity of the scientific and technical content. In the second stage, the revised drafts are then distributed to governments for government technical review, and to all authors and expert reviewers. The expert and government comments are then incorporated into the final draft reports.

Concurrently with preparation of the main report a Summary for Policymakers is also prepared for the Assessment Report and Special Report, which has to be consistent with the full scientific and technical assessment. The Summaries for Policymakers undergo a simultaneous expert and government review. They are then approved by the working group, with the concurrence of the lead authors, to ensure that they are consistent with the underlying scientific-technical report. Finally, the Summaries for Policymakers are formally accepted by the entire IPCC.

CEPA National Advisory Committee

The CEPA National Advisory Committee (NAC) has been given an opportunity to advise the Minister of the Environment and the Minister of Health on the scientific evidence supporting the recommendations of adding these substances or groups of substances to Schedule 1 of CEPA 1999. The science assessment, "Greenhouse Gases within the Context of CEPA 1999: A synthesis of relevant science from the IPCC Third Assessment Report", was reviewed and commented on by CEPA NAC as well as discussed at their conference call of May 27, 2005. There were minor comments made on EC's Science Synthesis Report which were factored into the version released publicly and no concerns raised with respect to the addition of these substances or groups of substances to Schedule 1 of the Act.

Consultations on the Proposed Order Following Pre-Publication in the Canada Gazette, Part I

On September 3, 2005 the proposed Order for adding the six GHG substances to Schedule 1 of CEPA 1999 was published in the Canada Gazette, Part I for a 60-day comment period. During this comment period Environment Canada received a total of 24 comments from industry, Environmental Non-Government Organizations (ENGO) and the public. In addition, three Notices of Objection were received during the comment period, from the Province of Alberta, an industry association, and a private citizen.

Comments on the proposed Order from ENGOs and most private citizens supported the addition of the GHGs to Schedule 1 of CEPA 1999 and agreed with the scientific basis for the addition, while those from the government of Alberta, one citizen and most industries expressed concerns about the science, or questioned whether CEPA 1999 is the most appropriate instrument to use to manage GHGs. One industry association did not oppose the use of CEPA 1999 as the regime for Large Final Emitters but expressed concern with the implication of GHGs being considered "toxic" under the Act.

All comments and Notices of Objection received have been carefully considered in finalizing the proposed Order. The responses by Environment Canada and Health Canada to the comments and the notices of objection received are available at http://www.ec.gc.ca/CEPARegistry/.A summary of the comments and the responses to those comments are presented below.

Science

The most prominent concern contained in the comments of those opposed to the addition of GHGs to Schedule 1 of CEPA was with regard to the validity and selection of the science that supports the conclusion that GHGs "constitute or may constitute a danger to the environment on which life depends" through their contribution to climate change. Questions were raised about the government's perceived reliance on the Summary for Policymakers (SPM) Report. Further, it was contended that other studies which suggest that climate change is a natural phenomenon should have been considered.

EC explained that it did not, in fact, rely on the Summary for Policymakers of the IPCC's Third Assessment Report (TAR) for the science to support the conclusion that the six GHGs are toxic under paragraph 64(b) of CEPA 1999. Rather, the comprehensive technical reports that are part of the TAR provide the scientific justification for listing GHGs on Schedule 1 of CEPA 1999. The material presented in the EC Science Synthesis Report was noted as being illustrative of that underlying body of science. The IPCC TAR reviewed published literature available up to and including 2001. The body of science reviewed in the TAR is enormous. Scientific papers that have been published since that date strongly support and even strengthen the conclusions of the TAR. EC is convinced that the weight-of evidence in support of adverse impacts arising from continued increases in anthropogenic sources of GHGs is substantial. No additional scientific evidence was brought forward which would have led to a change in conclusions.

Using CEPA 1999 to Regulate GHGs

A number of submissions suggested that climate change issues should not be managed under an existing Act, or part of an Act (i.e. Part 5), that addresses the regulation of toxic substances. It was proposed by a couple commenters that a new Act be developed for this purpose. Other specific comments made included: carbon dioxide and the other Kyoto GHGs would be labeled "toxic", which is contrary to the commonly held understanding of the term; the government should, within the context of CEPA 1999, identify or define the degree of toxicity of each of the GHG's that are being proposed for addition to Schedule 1 of the Act or consider creating sub-categories for the GHGs to distinguish these substances on the basis of their toxicity; and that provisions other than those found under Part 5 of CEPA 1999 could be used to regulate GHGs, namely, the International Air Pollution provisions (Part 7, Division 6).

Environment Canada has examined the legislative options available for addressing the environmental risks posed by GHGs, and concluded that Part 5 of CEPA 1999 is the preferred vehicle under which the GHGs regulatory and management regime should be developed. This conclusion was based on several considerations. First, CEPA 1999 is the only existing federal legislation with authorities that targets the substances (i.e. the GHGs) to be reduced and the specific sectors. Second, the Act enables a cooperative implementation approach with provincial, territorial or aboriginal governments by allowing for both equivalency agreements with other levels of government that have their own equivalent regulatory regimes and administrative agreements between the federal government and another jurisdiction to streamline the administration of GHG regulations. Third, the approach to manage GHG emissions has been carefully designed to ensure that it would be equitable both among regions and the LFE sectors which is most effectively achieved under Part 5 of CEPA 1999. Finally, GHGs meet at least minimally the paragraph 64(b) criterion for listing on Schedule 1 under CEPA 1999. Further, as the effects of climate change cannot be attributed to individual GHGs, the Kyoto Protocol GHGs gases are being treated collectively within the proposed Order. However, knowledge of which of the gases pose the greatest risk helps to inform the management process, with initial efforts directed at the highest risk substances and sectors.

Benefits and Costs

A few commenters questioned the statement in the RIAS that accompanied the Order that there would be no incremental costs borne by governments, industry or the public as a result of the addition of the six GHGs to Schedule 1 of CEPA 1999.

In response, Environment Canada clarified that the Order to add the six GHGs to Schedule 1 enables the federal government to take appropriate measures during the risk management phase. Therefore, no incremental costs are incurred by the public, industry or governments at this stage. Incremental costs and benefits of managing GHGs will be assessed during the risk management phase.

Notices of Objection

Under subsection 332(2) of the Act, a person may file a Notice of Objection requesting that a Board of Review be established. The Ministers may then establish a Board of Review to "...inquire into the nature and extent of the danger posed by the substance in respect of which the decision is made..." (section 333).

Three Notices of Objection were received, two of which clearly requested a Board of Review while the third did not. Regardless, the Ministers have carefully reviewed each of the three Notices of Objection in considering the need for a Board of Review. The Notices of Objection requesting a Board of Review contended that there was not a sufficient weight of scientific evidence presented or analyzed to validate the conclusion that anthropogenic sources of GHGs constitute or may constitute a danger to the environment upon which life depends; that greater consideration should be given to the views that global warming is a natural rather than human made phenomenon; and that the Government should rely on Canadian or non-international scientific studies to reach its conclusions about the causes and sources of climate change. Furthermore, one of these notices contended that the Minister of Health should have concluded that GHGs are toxic to human health, and that an inadequate assessment was done of the economic and competitiveness implications of adding GHGs to Schedule 1 of the Act.

Upon careful consideration, the Ministers of the Environment and of Health concluded that a Board of Review is not necessary in this instance. This decision is based upon the following considerations:

• The bulk of the available science supports the Ministers' conclusion that, given historical data and projected emissions over the next century, the six Kyoto greenhouse gases will be the dominant force in climate change over the coming century, and for some time beyond. The impacts of climate change are already being felt with adverse consequences for some vulnerable species and ecosystems. For the coming century and beyond, the impacts will become increasingly negative, the larger and more rapid the changes in climate. As such, the Ministers have concluded that the Kyoto GHGs constitute or may constitute a danger to the environment on which life depends.
• Scientific studies which were published after those considered in the TAR strongly support and even strengthen the TAR's conclusions.
• Canadian research identifying Canadian impacts are included in the IPCC review of published literature, and thus form part of the IPCC TAR which was the basis for the EC Science Synthesis Report.
• Human health-related impacts are considered in the IPCC TAR.
• The addition of GHGs or any other substances to Schedule 1 under CEPA 1999 does not require the Minister of Health to conclude that the implicated substances are toxic under the Act to human health. This action simply requires that one of the three section 64 criteria is satisfied.
• The comments are consistent with previously stated positions expressed during the consultations and were considered by Environment Canada during the development of the proposed Order.
• A Board of Review would be most unlikely to reveal additional information that would be relevant to the decisions to be made, as the Notices of Objection did not bring forward considerations, either scientific or otherwise, that had not previously been considered.

Compliance and Enforcement

There are no compliance or enforcement requirements associated with the addition of the GHGs to Schedule 1 itself.

Contacts

Cynthia Wright
Director General
Systems and Priorities Directorate
Environmental Stewardship Branch
Environment Canada
351 St. Joseph Blvd, 21st Floor
Gatineau, Quebec
K1A 0H3
Telephone: (819) 953-6830
FAX: (819) 997-0449
E-mail: Cynthia.Wright@ec.gc.ca

Céline Labossière
Policy Manager
Impact Analysis and Instrument Choice Division
Environment Canada
10 Wellington Street, 24th Floor
Gatineau, Québec
K1A 0H3
Telephone: (819) 997-2377
FAX: (819) 997-2769
E-mail: Celine.Labossiere@ec.gc.ca

Footnote a

S.C. 2004, c. 15, s. 31

Footnote b

S.C. 1999, c. 33

Footnote c

S.C. 1999, c. 33

Footnote 1

S.C. 1999, c. 33

Footnote 2

The report can be viewed from the following web site: www.grida.no/climate/ipcc_tar/

Footnote 3

The Government of Canada's action on climate change is a component of Project Green. Project Green is a set of policies and programs aimed at supporting a sustainable environment, healthy population and competitiveness issues for the 21st century including measures to reduce greenhouse gas emissions, to increase fuel and energy efficiency and to increase Canadian and Foreign markets for environment technologies, can drive our economy and protect our environment and health

Footnote 4

Relating to or occurring in a 24-hour period

Footnote 5

MSC (2005), Greenhouse Gases (GHGs) within the Context of CEPA, 1999: A synthesis of relevant science from the IPCC Third Assessment Report http://www.ec.gc.ca/CEPARegistry/documents/part/kyoto_ghg/index.cfm

Footnote 6

Layer of soil or rock, at some depth beneath the surface, in which the temperature has been continuously below 0 °C for at least some years. It exists where summer heating fails to reach the base of the layer of frozen ground

Footnote 7

The description of the IPCC consultation process draws directly from the IPCC brochure on "Introduction to the Intergovernmental Panel on Climate Change (IPCC) – 2003" (www.ipcc.ch/about/beng.pdf)

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