Environmental issues are always among the Top 10 policy issues, but their importance has tended to ebb and flow with concerns about the economy. When times are good, environmental issues tend to have a higher standing. When the economy slows, jobs become the paramount issue.

Certainly, we are in the midst of a strong economy. However, this time it appears that environmental concerns are more broad-based and are likely to remain a high priority even if we see an economic slowdown. Air pollution and smog in our urban centres are forcing children and older people indoors during the summer. Most people no longer dispute the fact of global warming.

Rightly or wrongly, fair or unfair, balanced or not, the trucking industry will be a target. Nowhere is this truer than at the federal level.

In recent months, we have seen the release of the report of the Federal Transportation Table on Climate Change; the unveiling of Transport Canada’s second sustainable transportation strategy; attempts at developing a national smog plan; and an announcement by the federal environment minister that he intends to mandate lower sulfur content in on-road diesel fuel. (Railway locomotive diesel – which already has up to 580 per cent more sulfur content than truck diesel – seems to be forgotten.)

Recently, the trucking industry has been given something else to worry about. Environment Canada wants to designate particulate matter (PM) as toxic under the Canadian Environmental Protection Act. In the view of the Canadian Trucking Alliance (CTA), this action is not substantiated by science and it could mean an increased regulatory burden and civil liability for those who use diesel fuel – like trucking, railways and buses, and municipal fleets.

Particulate matter is a by-product of the diesel combustion process and may or may not have a link to lung cancer and other respiratory problems.

The CTA’s concerns are twofold. First, how will the federal government choose to exercise its authority to regulate these “PM 10” emissions? (The PM 10 refers to particulate matter that’s less than 10 microns wide.) Canada does not presently regulate the emissions from truck engines. But the U.S. Environmental Protection Agency (EPA) does.

Over the past decade, the EPA mandated an 83 per cent reduction in PM emissions from heavy trucks and will virtually eliminate PM emissions by 2007. We don’t need a heavier regulatory burden.

Second, the Environment Canada proposal could create a situation in which compliance with regulations and the absence of negligence would be not be a defence in a civil action.

On June 10, Environment Canada published a proposed “order” in the Canada Gazette that would add PM 10 emissions to the list of toxic substances under Canadian Environmental Protection Act. The period for responding to the proposal ended Aug. 8.

Under the Act, the minister can deem a substance to be toxic if it can harm the environment or constitutes a danger to human life. In the Canada Gazette, Environment Canada states, “scientists have concluded that, under the current state of scientific knowledge, there is ample evidence that Particulate Matter (PM) causes serious human health impacts, and its declaration as toxic is completely justified.”

However, scientific research conducted by the Health Effects Institute in the U.S., and by the Scientific Advisory Board of the U.S. Environmental Protection Agency, raises questions about the relationship between PM10 and health problems. This is echoed by a CTA-sponsored peer review of the scientific documentation that accompanied the Environment Canada proposal, conducted by environmental experts GlobalTox International Consultants of Guelph, Ont. According to Dr. Ronald Brecher, who conducted the review, the actual health effects of PM10 emissions are not conclusive.

In his report, he states, “it does not appear as though (Environment Canada) considered all the available evidence (that) appears to support a weak association between PM10 and some health effects, (but) the magnitude and possible causal nature of these associations remain uncertain.”

Environment Canada officials have also tried to downplay the prospect of lawsuits arising from the listing of PM 10 as toxic substance. But a legal advisory prepared for CTA by the law firm of Gowlings, Lafleur, Henderson, LLP, says that the proposed order could indeed increase the likelihood of civil litigation against producers of PM10 – even when those producers comply with regulations.

In its brief to CTA, Gowlings says that the proposed regulation “should be presumed to be a significant step. It’s significance for PM10 emitters should not be underestimated.”

The Environment Canada proposal would effectively shift responsibility for any mitigating regulatory action from the federal government to the courts. The logic (or lack thereof) of this entire process is that existing regulations could be superceded by the courts.

In fact, it’s an open invitation to the courts to usurp the elected government.

Consider California, where PM10 from diesel was listed as a toxic substance, and a civil lawsuit was brought against a grocery chain in 1998 for the harmful effects of the company’s private truck fleet. The company was not breaking any laws, but still felt it better to settle out of court for millions of dollars rather than risk an even worse decision and award from the court.

As an alternative, the CTA is suggesting that during the next review of Canadian Environmental Protection Act, the introduction of a new category of “controlled substances” might be considered, which would allow Environment Canada to exercise control over certain emissions without exposing parties to civil lawsuits.

There’s no question that the trucking industry is a polluter – our trucks burn fossil fuel. But we are not the worst polluters by a long shot. Carriers know the impact of fuel savings on the bottom line. The difference in the level of maintenance on a commercial truck and a private automobile is incredible. Moreover, our vehicle and fuel suppliers have made significant gains in increasing fuel efficiency and reducing emissions.

Still, the trucking industry will be challenged and called upon to do more to protect our environment. That’s fine. This industry is prepared to do its fair share. So should all the modes of transportation.

And when it comes down to regulation, the government must demonstrate a true desire to listen, to be practical and to be fair. n

– David Bradley is president of the Ontario Trucking Association and CEO of the Canadian Trucking Alliance.