By Sara Lipson, Regulatory Updates Director, Nimonik
As penalties for environmental violations get stricter around the world, comprehensive environmental compliance is no longer optional. Not that it ever was, but now, financially speaking, it is in a business’s best interests to respect environmental laws rather than incur hefty penalties. As an EHS professional for an organization, ensuring environmental compliance is one of your job responsibilities. To do that, you have to have a strong understanding of how environmental laws are organized and structured in your country. This understanding is a strong foundation on which you can build your regulatory knowledge and ensure comprehensive compliance. This article can give you a strong foundation for understanding environmental laws in the US and Canada. In a following article, I will help you build on this foundation by showing you how to monitor changes to applicable environmental laws in the two countries.
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Overview of environmental laws in the US and Canada
To begin, you have to understand that in both the US and Canada, your operations are subject to environmental law at three levels: federal, state or provincial, and local. Therefore you have to refer to all these levels to find out all the environmental laws that could apply to your operations. In Canada, the federal and provincial levels regulate environmental matters based on the areas over which they have jurisdiction; for example, hazardous waste management and disposal is provincially regulated, but imports and exports are federally regulated.
In the US, some environmental matters are regulated exclusively by either the state or federal level, and for some matters there’s concurrent jurisdiction, with responsibility shared between different levels. If the state laws exceed federal requirements then you are required to meet the state laws. States and provinces further give authority to local governments to govern very specific environmental topics like those related to the built environment. At the local level, you could be subject to more than one type of government; for example, municipal, county, or school district. Therefore, you must ensure that you refer to environmental laws under all the applicable local governments.
A closer look at environmental laws in Canada
In Canada, generally the federal government is supposed to have responsibility for matters of general and national interest, and the provinces are supposed to have responsibility for matters of regional interest. But it’s not easy to draw a hard line between general and local. So there are conflicts over jurisdiction in some cases, and shared or overlapping jurisdiction in others.
Air and water are two examples. The provinces have air quality and permitting legislation that regulates emissions from facilities, and the federal government has the National Pollutant Release Inventory and regulates air emissions from vehicles. The provinces have water quality and use legislation that regulates local waters, and the federal government regulates the seacoast and bulk water exports. Here are other matters that are regulated both federally and provincially:
- Canadian Environmental Protection Act (Canada)
- Environmental Protection and Enhancement Act (Alberta)
- Environmental Management Act (British Columbia)
- Environment Act (Manitoba, Nova Scotia, Yukon)
- Clean Environment Act (New Brunswick)
- Environmental Protection Act (Newfoundland, NWT, Nunavut, Ontario, PEI)
- Environment Quality Act (Quebec)
- Environmental Management and Protection Act (Saskatchewan)
The constitutional powers given to the federal government that relate to the environment include navigation and shipping; seacoasts and fisheries; and trade and commerce, environmental laws related to federal land, national parks, railways, and aviation; nuclear energy, interprovincial pipelines, consumer products, migratory birds, interprovincial pollution, and First Nation reserves.
Here are some of the environmental laws that regulate things that are mostly or entirely under federal jurisdiction:
- Navigation Protection Act
- Canada Shipping Act
- Fisheries Act
- Canada Consumer Product Safety Act
- Railway Safety Act
- Nuclear Safety and Control Act
- Radiation Emitting Devices Act
The constitutional powers given to the provinces that relate to the environment include property, local works, municipalities, and natural resources like minerals and oil and gas. The provinces also have primary jurisdiction over agriculture, forestry, wetlands, and wildlife. Taken all together, the powers given to the provinces let them make all kinds of environmental laws about water use, solid waste, wildlife conservation, wilderness areas, and contaminated sites.
Here are some environmental laws that regulate things that are mostly or entirely under provincial jurisdiction:
- Responsible Energy Development Act (Alberta)
- Forest and Range Practices Act (British Columbia)
- Water Rights Act (Manitoba)
- Protected Natural Areas Act (New Brunswick)
- Petroleum and Natural Gas Act (Newfoundland)
- Waste Reduction and Recovery Act (NWT)
- Beaches Act (Nova Scotia)
- Forest Management Act (Nunavut)
- Oil, Gas and Salt Resources Act (Ontario)
- Petroleum Products Act (PEI and Quebec)
- Mineral Resources Act (Saskatchewan)
- Waters Act (Yukon)
Municipal governments generally don’t have jurisdiction to create environmental laws. But provinces usually delegate them the power to regulate the built environment within the municipality. Therefore, municipalities in Canada can end up creating environmental laws related to solid waste, water supply, sewers, nuisances, and fire protection.
When municipalities create a law or regulation in Canada that applies only to the local area, it’s usually called a by-law. The most common environmental by-laws across Canada relate to noise and other nuisances, sewer use, and solid waste collection.
A closer look at environmental laws in the United States
The US operates with cooperative federalism, where the federal government regulates something unless the state puts its own program in force that meets minimum federal standards. So either the state can have no laws on a subject, in which case it’ll have no power over that subject and the federal government will enforce the law directly, or the state can enforce its own program. So the federal government has jurisdiction over environmental matters, but the boundaries aren’t laid out as clearly as in Canada. Here are some key federal environmental laws:
- National Environmental Policy Act
- Endangered Species Act
- Migratory Bird Treaty Act
- Clean Air Act
- Clean Water Act (aka Federal Water Pollution Control Act)
- Resource Conservation and Recovery Act (RCRA)
- Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, aka Superfund)
- Emergency Planning and Community Right-to-Know Act (EPCRA)
- Toxic Substances Control Act (TSCA)
- Oil Pollution Act
- Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
Most of these laws authorize states to enforce certain requirements by making their own laws if their laws meet the minimum requirements set out in the federal law. For example, the federal Clean Air Act includes a program for permitting large industrial pollution sources. These permits are commonly called “Title V permits” because that’s the part of the Clean Air Act that requires them. The federal Title V permit program sets out what each state needs to do so that it can issue these permits. If a state’s permit program meets the minimum requirements, then the federal government approves the program and lets the state enforce its laws. But if a state’s permit program doesn’t meet the requirements, or if it just doesn’t have its own permit program, then the federal government enforces the Clean Air Act requirements directly.
States also regulate subjects that aren’t covered by federal laws. Sometimes this is intentional on the part of the federal government. For example, the federal Resource Conservation and Recovery Act sets out some requirements for non-hazardous solid waste, mostly for sites that manage the waste, but for the most part, the states take the lead in implementing the requirements. Usually, each state sets out requirements for solid waste generators as well as more detailed requirements for transfer, storage, and disposal facilities.
What local governments are permitted to regulate varies a lot from state to state, and they generally don’t have jurisdiction to create environmental laws. But like in Canada, they’re usually given the power to regulate the built environment within their boundaries. So local governments in the United States can end up creating environmental laws related to solid waste, noise, sewers, stormwater, nuisances, fire protection, pesticide use, and conditions in institutional and industrial buildings.
How environmental laws in the US and Canada compare
It’s so tempting to try to line up environmental laws on a particular topic in both countries and see how they relate to each other. Comparing is an interesting exercise but it doesn’t yield much information that you can act on. In the end, the laws in the two countries are different, and you’ve got to do things the way you’re required to in the location that you’re operating in.
But for interest’s sake, let’s look at how environmental impact assessment (EIA) law compares in the two countries.
In Canada, the federal and provincial governments both legislate EIA, under the federal impact assessment legislation as well as provincial environmental assessment acts. So a project has to do two threshold analyses—one to see if the project falls under federal EIA law, and another for provincial law. The process for EIA varies in each of the provinces. Some provinces have cooperation agreements with the federal government so projects that need review under both federal and provincial EIA legislation can have one EIA that meets the legal requirements at both levels.
In the United States, it’s mostly the federal government that regulates EIA. It does this through the National Environmental Policy Act, or NEPA, which is for major actions proposed by federal agencies. Only a third of the states have their own environmental laws.
Talking about hazardous waste, in Canada, the federal government regulates the movement of hazardous waste between provinces, and it regulates the import and export of hazardous waste. The provinces regulate hazardous waste generators, carriers, and treatment facilities, as well as the movement of hazardous waste within the province. Municipalities are responsible for local collection, recycling, and disposal programs.
In the United States, the federal government sets out requirements for hazardous waste management. The states can have their own hazardous waste management laws if they’re at least equivalent to the federal laws; otherwise, the federal government will enforce the federal laws in the state. Sometimes the state gets local governments to implement some of the state’s requirements, and local governments can also have their own codes or ordinances for hazardous waste collection and recycling.
Environmental laws in the US and Canada are different and therefore you cannot use the same compliance approach in both the countries. Very simply put, in Canada, environmental matters are mostly divided between the federal government and the provinces and in the US, while some environmental matters are regulated exclusively by either the state or federal level, for some matters there’s concurrent jurisdiction, with responsibility shared between different levels. Local governments in both the countries can be authorized by the state or province to regulate certain environmental issues like those related to the built environment.
To build on the strong foundation that I hope this article gave you for environmental laws in the US and Canada, in an upcoming article I will show you how to track changes to applicable environmental laws in the two countries. For questions and comments, please reach out to me at email@example.com