Published in the Hamilton Spectator October 23, 2017
Canadians, watching U.S. President Donald Trump's attacks on air and water pollution rules in the United States have taken some comfort in the notion that it couldn't happen here. Sadly, the reality is that the same processes have been unfolding, in slower and more subtle ways, in Canada as well.
An example of these processes in Canada is buried deep within a 144-page omnibus bill, mostly of administrative details and amendments, currently being considered by the Legislative Assembly of Ontario. Bill 154, the Cutting Unnecessary Red Tape Reduction Act incorporates a small section entitled the Reducing Regulatory Costs of Business Act. This section could be one of the most significant pieces of legislation affecting the health, safety, and environment of Ontario residents, proposed in many years
The section would introduce a "one for one" rule with respect to new regulatory measures. Specifically, it would require that the "administrative burden" to businesses associated with any new regulatory measures would have to be offset but a comparable reduction in the "administrative burden" associated with existing regulatory measures.
These types of rules effectively require than an existing regulatory requirement be removed or weakened before new requirements can be established. The implication is that new problems cannot be addressed unless a rule related to an established threat is removed. Stronger rules for air pollution, cannot be adopted, for example, unless the rules around some other threat to human health or the environment, such as the management of hazardous wastes, are somehow weakened. More insidiously, the analytical burden imposed on regulators by this requirement, means that new rules will not be proposed, even when officials are aware of the need to address emerging threats to human health and safety and the environment.
As such the provisions of Schedule 4 of Bill 154 present a serious threat to the ability of the government of Ontario to protect the health, safety, and environment of Ontario residents. In his report on the May 2000 Walkerton Water Disaster Justice Dennis O'Connor highlighted the role of similar "red tape reduction" rules in contributing to the disaster and its severity. Section 8 of Schedule 4 of the bill provides immunity to the Crown against any proceeding arising from action taken or omitted to be taken as a result of the bill. The provision is a de facto acknowledgement by the government of the risks to the public posed by the bill.
The existence of a "one in, two out" rule, similar to that proposed in Bill 154, in the United Kingdom has been strongly implicated in the failure of UK authorities to revise fire safety codes to address the threats posed by the types of building cladding used on the Grenfell tower in London. The fire at the tower this past June resulted in the deaths of at least 80 people. In the United States, a similar rule was adopted by the Trump Administration in January of this year. The measure, which is the subject of multiple constitutional and legal challenges, has been widely criticized as a threat to public health and safety and the environment.
Given the serious implications of the "one for one" rule, the provisions of bill 154 implementing the measure should be removed from the bill, and reviewed as separate legislation. Alternatively, Bill 154 should be amended to provide an exemption from the "one for one" rule for any regulation or instrument necessary for the protection of the health, safety and environment of Ontario residents.
Ontario has suffered through the consequences of compromising the provincial government's ability to adopt new rules to protect Ontarians from new and emerging threats to their health and environment more than once already. Bill 154 would set the stage for the new tragedies. The province should withdraw the bill's proposed "one-for-one" rule before it is too late.
Mark Winfield is a professor of environmental studies at York University. His research includes a focus on the design and management regulatory systems.