IPCC AR6 WGII – the good news? Pushing for justice works.

Many people saw the February 28, 2022, IPCC report, IPCC AR6 WGII, Climate Change 2022: Impacts, Adaptation, and Vulnerability (IPCC AR6 WGII), as bad news, but in my view the bad news already happened. The bad news is – we are almost out of time, and we are already feeling impacts which will only get worse over time. We knew that.

This post is about the good news from the IPCC AR6 WGII. It’s good when the IPCC talks about the really bad news, and embraces civil society course adjustments. In these comments I’m relying on the Summary for Policy Makers.

1) Mental health is mentioned twelve times, and defined as “’Mental health’ includes impacts from extreme weather events, cumulative events, and vicarious or anticipatory events.” And saying “Climate change has adversely affected physical health of people globally (very high confidence) and mental health of people in the assessed regions (very high confidence).” (p. SPM 35)

This is big for climate litigators, who have been mentioning this issue for a while to courts, with little positive response. Now they can say that even the IPCC, a fairly conservative global scientific body, agrees that this is an issue worthy of consideration. And this report is signed by virtually all the nations of the world.

The definition is helpful because this is how climate mental health issues happen – people are worried about, or effected by, “vicarious or anticipatory events” and now you can litigate it and be taken a little more seriously.

2) Indigenous people had more of a role in making this report, and impacts to Indigenous people are highlighted throughout, noting that Indigenous people can be more seriously and frequently affected.

Again, this is stuff we’ve been screaming into the climate litigation void for years – now it can be said that the IPCC also thinks this is important.

It can also be argued that a consultative role regarding climate is supported by the way the IPCC did this, because the IPCC did consult Indigenous peoples, and because the impacts are so strongly highlighted.

3) Climate justice issues are also brought to the fore, with such recommendations as “Inclusive governance that prioritises equity and justice in adaptation planning and implementation leads to more effective and sustainable adaptation outcomes (high confidence).” (p. SPM 30)

In this sense, combined with the above, this report tackles the root of the issues much more than before – governance, and how we make decisions together, and who has a right to be consulted, and tied into that – how it benefits everyone if we follow inclusionary processes at the earliest stages of decision making.

For instance: “SPM.D.2 Climate resilient development is enabled when governments, civil society and the private sector make inclusive development choices that prioritise risk reduction, equity and justice, and when decision-making processes, finance and actions are integrated across governance levels, sectors and timeframes (very high confidence).” (p. SPM 32)

Climate change is a justice problem, and we finally have the IPCC openly acknowledging that. Again, this makes it easier to litigate these issues.

Which all equals – all of the above, (the inclusion of mental health,  vicarious or anticipatory human concern, Indigenous and climate justice voices, both in decision making and in considering impacts) – this is what we (climate lawyers, scientists, civil society) have been pushing for. Now the IPCC has taken it up, leading to a much more just process, with better chances of positive outcomes, regardless of the other bad news. People may say it’s too little too late, but all we have is now, and if justice becomes the issue we are getting close to real change.

So, there’s actually a lot you can do. Pushing for justice works. Don’t stop.

European climate litigation successes: France (x2) and Ireland

There have been three major climate litigation victories in Europe in the last few months – two in France and one in Ireland. The cases are important nationally, but also internationally, as they set another example of nation-states being held accountable for a failure to meet climate targets.

What is the impact for Canada? Canadian courts are out of touch with climate change – there have been a few positive rulings on narrow cases, but all the big cases that are tackling the real global issue have been rebuffed (post coming on that next).

Most importantly – each case that is won (or even brought) in other states increases the pressure on courts at home to do the right thing. When you reference cases abroad in climate litigation the other side will invariably say, and the court may adopt, “that is not binding here (or even relevant)” but the truth is that we live in an international community, tied together by millions of legal agreements, economic, social, and political connections, and such rulings do have moral force. As they stack up they create pressure through embarrassment. And so, they are always worth referencing, and always worth bringing.

Regarding the two French cases, Louise Fournier, Climate justice lawyer at Greenpeace international, said “[w]hile the two legal actions are based on different laws, brought in different jurisdictions by different entities, in both instances it is about demonstrating that the State is not meeting its general and specific obligations to mitigate and adapt to climate change and that it does not respect its own climate targets.” (pers. comm.) It’s impressive to see two successful cases in one nation state in the same year, and an inspiration to climate advocates and litigators.

Case 1 – Commune de Grande Synthe v France

The first case in France came down last November, brought by the community of Grande-Synthe against the government of France for exceeding climate targets. The case is brought under the European Convention on Human Rights and EU Law. The court, the Conseil d’Etat, said in its statement :

On the merits of the case, the Conseil d’Etat has noted that while France has committed itself to reducing its emissions by 40% in 2030 compared to 1990 levels, it has, in recent years, regularly exceeded the “carbon budgets” it had set itself. Moreover, a decree of 21 April 2020 postponed most of the reduction efforts after 2020. Before final ruling on the request, the Conseil d’Etat is requesting the French Government to justify, within three months, how its refusal to take additional measures is compatible with the respect of the reduction path chosen in order to achieve the targets set for 2030.

The case was referred to the Conseil d’Etat after the community of Grande-Synthe received a refusal from the Government to take additional measures in order to meet the objectives of the Paris Agreement. The French government’s response is due sometime in March.

Case 2 – Oxfam France, Greenpeace France et Notre Affaire A Tous, and la Fondation pour la Nature et l’Homme v. France

The second case was brought by major ENGO’s Oxfam France, Greenpeace France et Notre Affaire A Tous, and la Fondation pour la Nature et l’Homme, and was driven by a petition which garnered 2.3 million signatures, the most ever in France’s history. This reflects the value of climate litigation which is citizen-driven. You can read the case in French here.

The Plaintiffs were also challenging the government’s failure to meet climate targets, and addressed them sector by sector, on the basis of civil responsibility. Paris’ administrative court, in finding a failure to meet targets which constituted a breach of French law, ordered the government to pay one euro to each of the ENGO’s, ruling that government failures “undermined the collective interests defended by each of the applicant associations.”

This is a nominal award, but the victory is a legal and ethical one, not a monetary one.

The Court’s statement said “[t]he judges examined whether there was a causal link between this ecological damage and the various breaches alleged against the state in the fight against climate change. They held that the state should be held responsible for part of this damage if it failed to meet its commitments to reduce greenhouse gas emissions.”

The connection between failure to meet targets (including ongoing ones) and responsibility, with financial and monetary implications, is an important one.

A lawyer on the case said “[t]his is the first recognition by the courts of the responsibility of the French State for its climate inaction.” Greenpeace summarized the importance of the case as:

It’s a victory of truth over the denial of the State, who has relentlessly claimed its actions are sufficient, despite evidence (GHG emissions consistently over carbon ceilings, reports from the High Council for the Climate, etc.). Today justice sides with all those who have been warning about the climate crisis for decades.


The recognition of the State’s fault and responsibility is a crucial step to obtain a court order forcing the State to act.

The plaintiffs here Oxfam France, Greenpeace France et Notre Affaire A Tous, la Fondation pour la Nature et l’Homme) have also been accepted as intervenors (intervention volontaire) in the first case, Commune de Grande Synthe v France, before the Conseil D’État.

Case 3 – Friends of the Irish Environment v. Ireland

This case was first brought by Friends of the Irish Environment (FIE) in 2017 challenging the National Mitigation Plan as violating Ireland’s Climate Action and Low Carbon Development Act 2015 (“the Act”), the Constitution of Ireland, and obligations under the European Convention on Human Rights, particularly the right to life and the right to private and family life.

FIE lost at the first instance, and then on appeal asked the Supreme Court to skip the regular appeal steps due to the emergency nature of the case.

The Supreme Court granted appeal and allowed FIE to come straight to the Supreme Court. The Court then ruled in FIE’s favour, quashing the  National Mitigation Plan for lack of specificity, saying “a compliant plan must be sufficiently specific as to policy over the whole period to 2050.”

On the negative, the Court found that FIE lacked standing to bring claims under the Constitution or ECHR, and that FIE had not made a strong enough case for a right to a healthy environment.

To reflect that these climate cases are influential on other state courts, even if not binding (which they clearly are not) – the Irish Supreme Court here quoted and relied on the Urgenda case (The State of the Netherlands v. Urgenda Foundation (C/09/456689/ZA)), at para 5, to say;

this does not release the State from its obligations to take measures in its territory within its capabilities which in concert with the efforts of other states provide protection from the hazards of dangerous climate change.

Climate change litigation is unique, as David Hunter, Professor of international and comparative environmental law at American University’s Washington College of Law, aptly described it, “[t]he entire world is at once simultaneously both a potential plaintiff and defendant.” In Hunter’s view climate litigation is “mutually reinforcing” and this is how the international community is enforcing human rights under the Paris Agreement, informally, case by case. He also said that;

the debate over whether specific theories will prevail or what remedies can be fashioned in a specific case misses much of the significance of these litigation strategies. Just the acts of preparing, announcing, filing, advocating and forcing a response have significant impacts—and of course some will prevail.

Indeed – these three European cases will have an impact on climate litigation here in Canada, whether “the other side” admits it or not. This is how we – climate advocates – are enforcing our respective nation’s climate targets under Paris.

A final note – FIE are also bringing a case challenging an LNG terminal on the basis of climate change. This is another case to watch, as well as Torres Straight Islanders v Australia, Sacchi v Argentina, and others in Brazil, France, and elsewhere.

“Keep it in the ground” in a global international agreement (Part III)

The question from my last post, which was a while ago (I started an LLM, which has kept me busier than expected) – was how to write “keep it in the ground” into international agreements.

The notion of keeping it in the ground is simple;  if a nation commits to reduce GHGs by 5% per year, they reduce their fossil fuel production by that amount. There are no loopholes, no trade-offs, no caveats – just results. The result of such a policy is GHG production declines, and we have a chance.

Every other “solution” – carbon taxes, cap and trade, market mechanisms of every kind, involve trade-offs and inevitable loopholes. The difficulty with “keeping it in the ground” is political, because of its lack of loopholes it confronts the will to actually change. At the international level that challenge is only multiplied, as every nation will look to the other’s refusal to comply.

Today, for instance – both Canada and the USA have made some measures towards curbing GHG’s, and some limited progress. Yet, since 1996, Canada’s crude oil production has only gone up (until the last few months due to covid). USA oil production did decline from 1985-2005, but has since gone up to an unprecedented high. Neither of these count LNG, which has also increased massively in the USA, where it has literally doubled since the year 2000 (along with the concomitant methane from drilling).

While Canada and the USA are claiming small climate gains, where did all this extra oil and gas (and GHGs) go? To other countries, where they will burn it and theoretically “account for it themselves.” This 2018 article gives a good description of the challenges of international carbon accounting, and reminds us of a chilling truth – “the contradiction between reports that anthropogenic emissions have stopped rising and atmospheric measurements showing that annual increases in CO2 levels have reached record levels.”

So, if we were to switch to all nations cutting oil and gas production in accordance with their national GHG reduction commitment – how do we enforce that internationally?

Joe Biden has an idea in his Plan for a Clean Energy Revolution and Environmental Justice, although I don’t think he intended it to be applied this way – “Biden will also condition future trade agreements on partners’ commitments to meet their enhanced Paris climate targets.” Great idea.

Here is the proposal:

  • All nations agree to cut oil and gas production in accordance with their national GHG reduction commitment
  • Those who do not agree are excluded from new international trade agreements and face other trade penalties
  • The agreement includes a “non-enforcement” clause for all past trade agreements the signatory is part of – agreeing not to enforce the old agreement against any other signatory for a failure to meet the terms of it, in the course of meeting this new agreement
  • For instance, if the USA, in cutting oil production in accord with its national GHG commitment, breaches NAFTA – Canada will have waived its right to enforce against the USA in that matter
  • That leaves, as potential challengers, private investors through investor-state dispute settlement (ISDS) mechanisms. These are described well here. It basically means that when two states have signed a trade agreement that has an ISDS, and a corporation in one state feels the other state has breached or infringed it’s rights – it can sue in international tribunals for damages or other remedies. Nations live in fear of ISDS and many new environmental laws since the development of ISDSs, have been tailored to ensure they do not lead to ISDS conflicts. So how do we get around ISDSs in already-existing trade agreements?
  • All signatories of this new agreement would agree to mutually revisit and revise their existing trade agreements to edit their ISDSs to remove the ability to sue for breach of this new agreement. It would take time, as the revision mechanisms in some international agreements are complex and have fixed timelines
  • In the meantime – a global fund could be set up to pay any losses incurred through ISDSs in existing trade agreements

Is it easy? No. Is it likely to happen, politically? No, not anytime soon. Is it completely possible and manageable? Yes.

The benefits:

1 – emissions actually will go down, not just pretend.

2 – this is completely traceable – there are no shell games, no loopholes. Countries that produce extra oil and gas will not be able to export it, and will be easy to trace.

3 – this will create scarcity in the oil and gas market, driving prices up, making oil and gas less competitive with renewables, and hastening its decline, and their concomitant rise.

We are not on a path toward meeting our climate targets, we are on a path to tipping points, storms, heatwaves fires, famines, and destruction. The loophole-rich solutions, the comfortable change – have not helped.

This may be tough, but it’s better than the other option.

Part II – keep it in the ground (why market based solutions can’t save us)

Part I discussed Vista Coal in Alberta, and the federal refusal to conduct an EA. Like TMX, this is presumably based on the notion that the emissions will be regulated in the jurisdiction where the fossil fuels are burned.

This supports an endless shell game that allows the world to keep producing fossil fuels, blaming each other, and emissions continue to rise. In reality what it means for this coal is that it could end up being burned in many nations, some of which have a carbon tax or other policies in place, most of which do not.

Let’s first be clear – carbon taxes / cap and trade / market mechanisms, are better than nothing, and have generated some good results in some jurisdictions. I would argue that one of their key benefits in federal-state systems, like Canada, is that they are an opportunity to establish that the federal government has authority to regulate emissions (yet to be determined in Canada by the carbon tax reference cases (see my reflections on those here)).

Some of the issues with a carbon tax, and reasons that it has not realised hoped for results, are found here, where the authors point out that they are seen as the most “efficient” mechanism (I am about to argue otherwise, but it doesn’t change this point);

We question whether efficiency should be an overriding priority of climate policy. If we are to limit global warming to less than 1.5 °C, there is little time remaining to reach carbon neutrality (9). The negative impacts of climate change are already undermining human prosperity and the cost of inaction will escalate the longer we wait (10). Despite the urgency of the problem, carbon pricing places considerable weight on seeking low-hanging fruit and, according to Patt and Lilliestam, fails to appreciate that “we must eventually pick all of the apples on the tree” (11). Furthermore, as of 2019, existing carbon pricing schemes only cover about 20% of global emissions and more than two-thirds of these have prices below $20 United States dollars (USD) per ton of CO2 equivalent.* This is far too low to be effective and increasing coverage and prices presents serious challenges, which we return to below.

They also point out the drawback of this universalist approach;

Carbon pricing strategies tend to be predicated on the notion that, eventually, all emissions are covered so that all prices will be corrected such that no economic decision would escape carbon pricing’s regulatory impact (2). This means that all jurisdictions and economic sectors should be included, ideally with uniform price signals (6). In the absence of uniform pricing, there is a risk that some nations will free-ride on the efforts of others and that firms will relocate to places with lower or no carbon prices (i.e., “carbon leakage”).

Three issues confront this universal approach. First, the required levels of coordination and cooperation are unrealistic, as carbon pricing encounters a fragmented international climate policy landscape (20). In the absence of a global sovereign and considering the great diversity of national circumstances (where countries have different responsibilities for generating the problem, vulnerabilities, and resources to adapt and support mitigation), cooperation or convergence among emission pricing frameworks remain elusive. Second, a universal approach will require well-functioning institutional structures and high levels of regulatory competences and monitoring systems, which do not exist everywhere. Third, carbon pricing strategies tend to ignore that policies need to be tailored to local and/or sectoral contexts in order to address specific sources of lock-in and opportunities for innovation.

The authors go on to propose a wise and well thought out program, “sustainability transition policy” (STP), which “is predicated on the notion that a low-carbon transition will involve multiple and co-evolving social and technological changes” and is described as “STP emphasizes the rapid and effective reduction of emissions, system transformation and radical innovation, the development of context-sensitive responses, and the inherent political nature of decarbonization.”

STP is promising, but there is an even simpler answer: keep it in the ground. If a nation commits to reduce GHGs by 5% per year, they reduce their fossil fuel production by that amount. There are no loopholes, no trade-offs, no caveats – just results. The result of such a policy is GHG production declines.

There is a market element to it in that as supply diminishes the price of fossil fuels may rise – that’s great – then renewables become more competitive, eventually being the obvious choice, and their scale up will take on a life of it’s own.

This may seem simplistic, but you would think the problem that “we are putting too much carbon into the atmosphere” would have a simple solution: make less.

The next post will deal with how to write this into international agreements.



Vista Coal – another federal betrayal of present and future generations (Part I)

On December 3rd, 2019, Canada opened their factum to the SCC in the Saskatchewan carbon tax reference appeal with;

1. Global climate change is an urgent threat to humanity. Greenhouse gases (GHGs) in the atmosphere enable global warming, causing climate change and creating national and international risks to human health and well-being. GHG emissions cannot be contained within geographic boundaries. Their deep and urgent reduction requires an integrated pan-Canadian and international approach to prevent significantly worsening consequences of climate change.

In October, 2019, the same federal government declined a federal review of the proposed expansion of the Vista Coal Mine in Alberta. According to Global news the Minister of environment and climate change, Jonathan Wilkinson, said;

… the Coalspur Vista Coal Mine project just east of Hinton in western Alberta doesn’t need to be designated for federal review because it is subject to the provincial environmental assessment process.

He adds issues of federal jurisdiction will be covered through other regulatory processes and, if the project proceeds, it will be subject to federal regulation

Ecojustice called it hypocrisy, and that is exactly what it is. What can be done? Well, litigation, of course. And Ecojustice is doing that too.

This is the same argument that was used regarding TMX – that the fossil fuel will be burned elsewhere, and they can count and deal with the emissions. As Clark Williams-Derry, a Seattle-based energy finance analyst with the Institute for Energy Economics and Financial Analysis was quoted in the Narwhal, “It’s like getting a temperance lecture from the bartender,” “As he’s pouring the drink, he’s saying ‘you really shouldn’t be drinking so much.’ ”

Is there a better solution?


Carbon tax cases – timing and importance

The Canadian carbon tax cases are important because they are fundamentally about the federal government’s power to regulate climate change on a national scale. The Greenhouse Gas Pollution Pricing Act, SC 2018, c 12 (GGPPA), the subject of dispute, sets up a federal carbon tax, and (this is the disputed part) imposes a carbon tax on provinces which are not taking sufficient measures of their own.

Let’s be realistic, a carbon tax is not going to save the world, or save us from climate destruction. It’s a step. It is also not going to bankrupt Alberta, ruin the oil and gas economy, or cause the sky to fall. The oil and gas economy is already effectively on life support and the question of its resuscitation, or not, is addressed elsewhere. So why is it such a focus of ideological dispute between some provinces and the feds?

This case will determine whether the federal government can take national action to mitigate climate change, most importantly whether the feds can impose measures on the provinces. Without being able to do so, and with the provinces having jurisdiction over many heads of power which are critical to dealing with climate change (such as the management of public lands, timber and wood, and most importantly property and civil rights, it is not clear that the federal government could even reach their Paris commitments if they wanted to (still an open question).

These cases will give us a preview of the extent and depth of the federal legal capacity to regulate climate change and meet present and future international legal commitments.


Saskatchewan: The Saskatchewan Reference was heard in February 2019, and the Saskatchewan Court of Appeal issued its decision on May 3, 2019 (Reference re Greenhouse Gas Pollution Pricing Act, 2019 SKCA 40 (CanLII)). The Attorney General of Saskatchewan filed a Notice of Appeal at the Supreme Court of Canada on May 31, 2019.

The SKCA opened its judgement with this, upholding the carbon tax:

4 The factual record presented to the Court confirms that climate change caused by anthropogenic greenhouse gas [GHG] emissions is one of the great existential issues of our time. The pressing importance of limiting such emissions is accepted by all of the participants in these proceedings.

Ontario: The Ontario Reference was heard in April 2019, and the Ontario Court of Appeal issued its decision on June 28, 2019 (Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544 (CanLII)). The Attorney General of Ontario (“Ontario“) filed a Notice of Appeal at the Supreme Court of Canada on August 28, 2019. All of the case documents, and video of the proceedings, can be found here.

The ONCA said, also in upholding the carbon tax;

[3]         The Act is within Parliament’s jurisdiction to legislate in relation to matters of “national concern” under the “Peace, Order, and good Government” (“POGG”) clause of s. 91 of the Constitution Act, 1867. Parliament has determined that atmospheric accumulation of greenhouse gases (“GHGs”) causes climate changes that pose an existential threat to human civilization and the global ecosystem. The impact on Canada, especially in coastal regions and in the north, is considered particularly acute.

[4]         The need for a collective approach to a matter of national concern, and the risk of non-participation by one or more provinces, permits Canada to adopt minimum national standards to reduce GHG emissions. The Act does this and no more. It leaves ample scope for provincial legislation in relation to the environment, climate change and GHGs, while narrowly constraining federal jurisdiction to address the risk of provincial inaction.

And aptly quoted the Paris Accord to say;

[6]         Climate change was described in the Paris Agreement of 2015 as “an urgent and potentially irreversible threat to human societies and the planet”. It added that this “requires the widest possible cooperation by all countries, and their participation in an effective and appropriate international response”.

Alberta: The Alberta Reference was heard on December 16, 17, and 18, 2019, and the Alberta Court of Appeal issued its decision on February 24, 2019 ( Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 (CanLII)). British Columbia filed a notice of appeal on March 25, 2020.

The ABCA opened very differently, signalling at the start that they were finding the carbon tax unconstitutional;

[1]               Calls to action to save the planet we all share evoke strong emotions. And properly so. The dangers of climate change are undoubted as are the risks flowing from failure to meet the essential challenge. Equally, it is undisputed that greenhouse gas emissions caused by people (GHG emissions) are a cause of climate change. None of these forces have passed judges by. The question the Lieutenant Governor in Council referred to this Court though – is the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12 (Act) unconstitutional in whole or in part – is not a referendum on the phenomenon of climate change. Nor is it about the undisputed need for governments throughout the world to move quickly to reduce GHG emissions, including through changes in societal behaviour. The federal government is not the only government in this country committed to immediate action to meet this compelling need. Without exception, every provincial government is too.

University of Ottawa professor Nathalie Chalifour gives an excellent and very in-depth preliminary discussion here and Chalifour wisely notes that “[t]his question has many dimensions, including the scope and applicability of multiple heads of powers, such as the national concern and emergency branches of the residual peace, order, and good government (POGG) power, taxation, criminal law, and the trade and commerce powers.”

Chalifour’s article was before the ABCA case was merged, however, and the ABLawg gives a great analysis of the later Alberta decision here. There are many other excellent analyses of the cases, including from an Indigenous feminist legal perspective, and an argument for climate change as a sui generis area of law.

When will they be heard?

The Saskatchewan and Ontario Appeals were originally tentatively scheduled to be heard in December 2019 and then January 2020. This was adjourned to March 24 and 25, 2020. These dates were in turn adjourned tentatively to unspecified dates in June 2020 because of the Covid-19 pandemic. The cases are now all tentatively scheduled to be heard by the SCC in September via live webcast. Since you’re not in live court, popcorn is welcome in this highly technical, but high-stakes hearing. It will be interesting to watch counsel for each of the 3 AGs – whether they open/close arguments with the big picture, or the technical.

Thoughts on safely letting the oil and gas industry die

As a starting premise is this article title, “The world is on lockdown. So where are all the carbon emissions coming from?” We are flying less, driving less, and yet emissions have barely come down to the point they need to stay at to possibly meet the inadequate Paris targets.

Massive oil and gas bankruptcies were already predicted before Covid-19. This piece back in December, 2019, said a “bankruptcy boom has hit the oil and gas industry, and it’s just getting started.” Then, earlier this month there was an oil price war resulting in an international agreement from a number of OPEC and key oil producing states to cut production. And now, as of April 22nd, there are oil tankers (ships) holding 22 million barrels of stranded crude oil parked all over the world..

So what will become of the oil and gas industry, and what will become of us? Even with all this oil stranded we have not cut emissions enough. Of course governments are tempted to prop them up, and there have been some bail outs already, but they should not do more, they should let them go bankrupt.

People will argue that they shouldn’t because if they do then the government/taxpayer will have to clean up all those abandoned oil wells and toxic sites, but the truth is, they will anyway, as proof – the federal government just committed $1.7 billion to clean up orphan wells.

People will argue that there are too many jobs at stake. But the above orphan well clean up is good job creation, as is renewable energy. There are lots of better ways to create jobs.

People will argue that we still need oil and gas to run many aspects of the economy. This is true. But government can do that to a degree, where industry does not, as we have seen them do with both the TMX purchase, and their management of covid-19.

If oil and gas companies are allowed to fall the assets will still exist (wells, trucks, machinery, etc.) – the crown may as well pick up the positive with the negative (orphan wells / contaminated properties), and anything that doesn’t escheat to them they can buy for a song. Then they can operate it only as long as necessary, and shut it down when the time is right (as soon as possible).

People will argue that there is a danger the government will operate it for too long, and cling to it out of ideology rather than need. This is the biggest danger with such an approach. But is it really that different from the government buying any project they feel is “in the public interest,” like TMX?

Also, letting them die sends a signal to the world – that it’s time to embrace the new.





Spring 2020 update on the federal Emergencies Act

We are now living amongst the terror and sadness of a global pandemic – Covid-19. Yesterday, after a phone call between the PM and the Premiers, the federal government officially decided, on pressure from the provinces, not to use the federal Emergencies Act (R.S.C., 1985, c. 22 (4th Supp.)). That leaves it as still having never been used since it was passed in 1988, replacing the War Measures Act. 

The War Measures Act was used three times – to intern Canadians in WWI, WWII, and during the October Crisis in 1970. The last use, by Trudeau senior, gave it a bad rap (the first two did as well), and after the Charter was passed it no longer seemed to fit the Canadian legal ecosystem, so it was repealed and the Emergencies Act passed, which is supposed to accord with the Charter.

Regardless – it is clear that its potential use is not popular with the provinces, as it is fairly likely to intrude on provincial jurisdiction. BC Premier John Horgan said yesterday that it was a “distraction” and a waste of time. It was also clear that the Emergencies Act is considered a stop-gap measure, to fill in the blanks when there is a failure of national co-operation, or provinces fail or are unable to do their part, Trudeau said in a briefing afterwards;

“We are seeing that the collaboration, the partnership among provinces and territories and the way we’re moving forward on this means that we might not ever have to use the Emergencies Act and that would be our preference.”

This post, by Adrienne Smith, lays out some of the powers the federal government can access under the Emergencies Act;

… Cabinet has the power to evacuate, remove, requisition, direct and dispose of person and things. It can force the establishment of hospitals and shelters – for 90 days. People can be directed to render essential services. This declaration allows for the payment of benefits and support to people who are affected – through Employment Insurance, the CERB and as transfers to the provinces. Various enforcement tools are created, including fines and imprisonment.

Those are extensive, and if the federal government were to use the Emergencies Act regarding climate change they would have considerable powers to deal with it. This post builds on one from last year – Can governments declare a “Climate Emergency”? – the powers under the Act are listed in s. 8 of the Act, and discussed in last year’s post in more detail.

The Act itself mentions “accident or pollution” (s. 5(c)), under “Public Welfare Emergency,” as one of the bases on which to declare an emergency.  Certainly climate change qualifies as pollution. 

In order to really get the answer regarding the question of whether the federal government will ever use the Emergencies Act regarding climate change we can look at two things; 1) the provincial resistance to it, as an encroachment on their spheres of ppower, 2) it would have to be in a situation of complete provincial failure to deal with the problem (which is arguably the case for most provinces), and 3) look at the resistance to the carbon tax, which is also predicated on a failure of the provinces (in order for it to be applied there (to be discussed in a coming post)).

The result? It will have to be very dire circumstances for the federal government to ever consider invoking the Emergencies Act in relation to climate change, including a complete failure of one or more provinces to deal appropriately with those very dire circumstances. It is unlikely to happen any time soon.

3 climate lessons from Covid-19

  1. Suffering sucks. Every person that dies is someone’s loved one, the loss of whom will leave them grieving, possibly needing counselling, or years to digest and reconcile. Loss, pain, tears. Suffering sucks. The numbers of dead are not numbers – they are permanent and negative changes – losses of resources, knowledge, personal and family history, connection and support.
  2. Listen to the warnings. We were warned. We saw it happening in China, spreading out from there. Governments, and people, were slow to react. Instead of listening to the warnings many people believed when they heard someone mumble that it was really just another flu, or that the warnings were overstated. Some used such talk for political leverage.
    We have been warned on climate change. We have not listened.
  3. We have tools, but they are more effective if used early. There is currently less suffering, and more confidence, in places where tools were deployed quickly. Some of those tools have been quarantining, testing, financial and economic measures to support those who respect the request/order not to go to work, ticketing-fines-jail for those who break the rules, and government money into projects that help.
    On the climate front we are late, very late. But, to quote an old english poem, “time still succeeds the former..”
    There are legal, policy, and cultural tools at our disposal. A previous post covered some of the things the Canadian government can do with the Emergencies Act regarding climate change (and there’s another post to come). But some clear examples of legal tools that could be used now regarding climate change, to reduce the impacts, are; financial and economic measures to support transitioning oil and gas workers, and supporting those who are hurt by a transition to a low-carbon economy, ticketing-fines-jail for those who break the rules, and government money into projects that help – solar and wind farms, tidal, geothermal, planting trees, and research and development.
    Some policy options, of many, are leaving oil and gas in the ground – no new projects, and wind down current ones, and completely change how forestry, agriculture and fisheries are conducted to maximise carbon storage.

    Climate change, on the path we are on, is going to cause far greater human suffering than Covid-19. Once the bad part really starts, there will be no turning back, and it will be too late to effectively wield the tools we have. To reduce human suffering we must listen to the warnings and use the tools we have now.

Teck: post-mortem – (they got the message, should we get theirs?)

Teck’s mega “Frontier” oilsands mining project is dead, abandoned by its owner, Teck Resources, on February 23, 2020. Why? Global News said a few days later,

[i]t’s still not entirely clear what led Teck Resources to withdraw its proposed Frontier oilsands mine, nor is it clear why that decision came just days before we were to learn whether Ottawa would approve the project.

There’s not likely a single explanation to all of this, but the company’s deliberately vague announcement left the door open for others to fill in those blanks with their own spin

But the reasons are not really that mysterious. Teck CEO and president Don Lindsay wrote that they had “unprecedented support from Indigenous communities” and the project “was deemed to be in the public interest by a joint federal-provincial review panel following weeks of public hearings and a lengthy regulatory process,” and that the project was “commercially viable.”

But he listed as their key reason, “..global capital markets are changing rapidly and investors and customers are increasingly looking for jurisdictions to have a framework in place that reconciles resource development and climate change, in order to produce the cleanest possible products.”

And went on to wisely say, “[u]nfortunately, the growing debate around this issue has placed Frontier and our company squarely at the nexus of much broader issues that need to be resolved. In that context, it is now evident that there is no constructive path forward for the project.”

So, he essentially said that markets are changing due to climate change, and Alberta/Canada are not addressing that sufficiently, and they don’t want to get in a big public dispute over it. That’s pretty clear, and reasonable. They probably had their lawyers and advisors look at Northern Gateway, Energy East, Keystone XL, and Trans-Mountain. They probably got advice that they were in for a huge battle, which would be very expensive, they were not sure to win, and they definitely would not win the PR side of it. Good advice.

Perhaps most insightful is that a few days later Teck bought  “SunMine Solar Energy Facility.” They bought a solar farm. At the same time JP Morgan has pulled out of big oil funding Teck has sold the past and bought into the future, policy be damned. Industry is giving up on big oil and gas.

This hasn’t just happened overnight. In September 2019 CNBC posted an article “Climate change: Did we just witness the beginning of the end of Big Oil?” There have been many others like it. The CNBC article made these two key points:

  • The energy sector is notorious for booms and busts, but oil and gas stocks’ weighting in the S&P 500 has not been this low since as far back as 1979.
  • Investors have lost faith in oil companies, but it is not yet clear whether that is a permanent change caused by fear of increasing advances made by renewable-energy sources like wind, solar and electric batteries, or a temporary reluctance to invest caused by low oil prices.

Well, if it wasn’t clear in 2019 it certainly  must be after recent news. A March, 2017 Environmental Defence article titled “Seven oil multinationals that are pulling out of Canada’s tar sands” and said that “[l]ast week brought big news that Royal Dutch Shell, one of the world’s largest multinational oil companies, would sell off its Canadian tar sands assets.”

That’s right, let’s not forget Shell’s withdrawal in 2017, which Environmental Defence attributed to, “low oil prices, stronger policies to fight climate change, and the accelerating global shift to renewable energy make the tar sands uneconomical.”

This again calls into question government funding and support for the oil and gas industry. If Teck’s Frontier mine isn’t viable, should we be putting government money into TMX, subsidies? Arguably Teck’s withdrawal makes oil and gas subsidies that much more questionable – should we be using government money to prop up a dying, or transforming, industry? When Teck said they are “looking for jurisdictions to have a framework in place that reconciles resource development and climate change” and then bought a solar farm – doesn’t that imply government money should be going into renewables, not oil and gas?

Does this also say that those who have been fighting against new oil and gas projects, whether they experienced success or failure in each instance, have contributed to shaping the context in which project decisions are made?

The writing is on the wall.