Syncrude Canada Ltd. v. Canada (Attorney General) – beware climate hypocrisy

Syncrude Canada Ltd. v. Canada (Attorney General), 2016 FCA 160 (CanLII), <http://canlii.ca/t/grwc3> was one of Canada’s first climate change cases. Canada implemented some early and woefully inadequate renewable fuels regulations – all fuels had to contain at least 2% renewables. A good start, a decade late, and not that big a deal, one would think.

But Syncrude challenged it, mainly on the Constitutional basis for the regulation – that it was not under federal jurisdiction because it did not fall within a head of power under ss. 91 of the Constitution Act, 1867. The court affirmed that it was, under the “criminal” head of power (91(27)). That issue is canvassed pretty thoroughly here, where UCalgary Law professor Sharon Mascher finds that;

Absent an appeal to the Supreme Court of Canada, this FCA decision removes the lingering question as to whether the federal government can rely on the criminal law power to regulate GHG emissions, an evil that justifies the exercise of the criminal law power. This is so even if the legislation or regulation creates favourable economic and market responses in other sectors or supports the use of indirect economic effects to achieve its dominant purpose.

Leave to appeal to the SCC was denied, so that is effectively the law in Canada – Canada can regulate greenhouse gases under s. 91(27) because it is an “evil” to society.

But this post is not about that, it’s about climate hypocrisy, and the usefulness of this case in more general climate litigation. Syncrude took the position in the case that climate change is a real threat, but that this measure is inappropriate, but also obfuscating the link between burning fossil fuels and climate change, essentially arguing for doing nothing. The FCA said to Syncrude:

[24]           However, as the respondent points out, Syncrude’s submission at paragraph 66 of its factum that “the production and consumption of petroleum fuels is not inherently dangerous” is inconsistent with its concession that GHG emissions contribute to the evil of climate change. Syncrude’s position is problematic and at times concedes the correlation between GHGs, global warming and the consumption of fossil fuels.

This is important because the above could be said to any government that talks about fixing climate change, while making a decision/decisions which in practice makes it worse. The inconsistency is apparent, for instance, in both Canada and BC’s stated positions on climate change, and their ongoing subsidisation of the oil and gas industry.

This case is a good tool for climate litigators, to encourage courts to hold government and industry to their stated positions on the relationship between our climate and the burning of fossil fuels.

 

 

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