COP25; “an agreement which accommodates everyone”? Failure, process, and alternatives

In the Friday the 13th COP25 Presidency Press Briefing, Andres Landerretche, Coordinator of the COP25 Presidency, said that they would stay until they had an agreement, and that they were working hard to get “an agreement which accommodates everyone”..

It’s now Saturday night, and according to Elizabeth May on twitter, they are still going. This effort by those trying to reach a deal must be applauded, but is this the right process for today?

It’s not clear who, in the COP25 Presidency statement, is considered to be “everyone,” or should be. If “everyone” is all the delegates, including those who want to hold up the process, then satisfying everyone is a question of how low the bar can go and still satisfy most nations, or conversely how high it can go and still be acceptable to the recalcitrants – Saudi Arabia, Australia, and the United States.

If “everyone” is everyone on Earth, everyone who is impacted, or everyone who will be impacted, and that’s pretty clearly not who he was referring to, then it’s clear that “everyone” will not be accommodated at COP25, or through the resolution regarding Article 6 (carbon markets – a key sticking point).

But, could it be? As Dr. Peter Carter, co-author of Unprecedented Crime: Climate Science Denial and Game Changers for Survival, points out here, every COP session since the first few have been based on full consensus. The world is burning. We are in a climate emergency. And yet, because of the process we have chosen, a few nations who have chosen personal wealth and power over the greater good can entirely bar us from saving ourselves.

Is it time to consider a different process? The Montreal Protocol had teeth – an enforcement mechanism – that trade sanctions could be brought against violators. We need something similar to that, or other enforcement mechanisms. Those who endanger life on earth should be excluded from the economic community of nations in meaningful ways. Or there must be other sanctions which reflect the gravity of their actions. Massive tariffs on oil and gas from non-compliant countries? That would have the four effects of punishing them, rewarding compliant nations (with increased exports), encouraging other nations to become less oil dependant, and accelerating the death of the oil economy.

How do we get there? The easier method is through article 15(2) of the United Nations Framework Convention on Climate Change (UNFCCC), which says that;

The Parties shall make every effort to reach agreement on any proposed amendment to the Convention by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting.

So, the UNFCCC can be amended to change the voting procedure/decision-making mechanism, and / or enforcement mechanisms can be added. A lot more can be said on the specifics of this in future posts, and hopefully others will come up with even better ideas. For now all we need to know is that once “everyone” has tried to convince the few recalcitrants, and failed – a 3/4 majority can change the process.

The only problem with that is – the next COP, COP26, is hosted by the UK, who just elected a Boris Johnson Conservative government. While they are likely to be better about climate talks than some other conservative governments might, they are unlikely to take the vanguard position and initiate this level of change.

That leads to another possibility – can the UNFCCC, or the process – be amended by the UN General Assembly? It’s worth looking into. That would be a much more just process.

This is an emergency – let’s act like it.

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

Syncrude Canada Ltd. v. Canada (Attorney General), 2016 FCA 160 (CanLII), <> 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.



The Canadian federal election: no climate emergency to see here.

The October 21, 2019 Canadian election resulted in a Liberal minority, which could be propped up by the NDP or Bloc. What does that mean for the climate?

For starters, it’s not a Conservative government, so not an absolute nightmare for the climate. Just really bad, since the Liberal climate plan (as reviewed in the last post), is not very good. A – they bought a pipeline and hope to pay for climate adaptation/mitigation with the profits. B – their Plan is vague and lacking detail, relies on Stephen Harper’s “updated” and incorrect (re the Paris Accord) targets, and does not set a meaningful and credible reduction target for 2030.

On the plus side – 2 billion trees! And other programming. So, there are some good points. How good may depend on who will hold the balance of power, and how they leverage it.

Who, and what will that mean? If the NDP get asked, will they make Transmountain conditional? Could we imagine the two teaming up without first resolving that issue? The problem is – if the NDP drives too hard a bargain the Liberals can join up with the Bloc instead. So, it’s going to take some time to see how this plays out.

Overall trend – this election was divisive and not great for Canada or the environment. Two reasons – the central Provinces, Alberta and Saskatchewan, went completely Conservative (except for one seat in Edmonton). The coasts went red, East, and mostly orange-green, west.

Also, as per the climate-plan review in the last post – the Greens and NDP had the best climate plans, and frankly, despite some green growth – neither party did that well, especially compared to how much ground the Conservatives regained.In fact, if you add the NDP and and Greens together, percent-of-vote-wise, and compare that to the last election, they likely dropped. This does not convince parties to move towards building more climate-friendly policies into their platforms, or treating climate change like the emergency it is.

Ultimately, the climate was not a major driving force in this election, and was not a winner. Instead, Mother Nature will vote with her fist for the next four years, trying to convince us to take meaningful action. And the lawyers, campaigners, advocates, and climate strikers – get back to their respective roles.



The federal election climate platforms: goal, dream, or hallucination?

Which party has the best climate plan? There are a number of election-climate tools and comparisons, some quite good. Ecojustice has a good one here, and The lawyer’s daily has a piece here.

Another summary is here, done by Leach and Hayhoe. A Twitter critique of that assessment said “It’s implicitly an endorsement of the Liberals based on two criteria: ambition and feasibility. My concern: way feasibility defined favours middle of road approach.” In other words, it’s based on an assumption that steep change is impossible.

Stand.Earth has a fairly comprehensive one here. Theirs may be the most rigorous, and honest, as it says they all are insufficient. Here are a few more comparisons; the Narwhal, Globe, and Policy Options. There are many more.

This one may the simplest, as there is only one question: How much does this platform reflect a costed, measured, clear PLAN to stay below 1.5? The IPCC has told us that;

… in model pathways with no or limited overshoot of 1.5°C, global net anthropogenic CO2 emissions decline by about 45% from 2010 levels by 2030 (40–60% interquartile range), reaching net zero around 2050 (2045–2055 interquartile range).

A preliminary assumption, for discussion purposes, is that a 30% reduction is actually enough to reach those targets. Many say it is not. Nonetheless, this post will focus on changes by 2030, as the IPCC has also told us that is what matters.

Arnold Schwarzenegger, in this interview shared with Greta Thunberg, sums it up well. He referenced how California set carbon emissions reductions targets, and beat them – with a plan. He said, “A goal, or dream, without action, is hallucination.”

NDP – a detailed but undefined goal 

The NDP climate plan, Power to Change, a new deal for climate action and good jobs, can be found here. It is the most thorough of them all, coming in at 22 pages, and with lots of detail. That said, it fails to pick a target for 2030 recutions, instead promising to  “Adopt science-based GHG emissions reduction targets for 2030 that are in line with stabilizing
the global temperature increase at 1.5 degrees Celsius” (p. 6).

A good promise, but not appropriate to today. The UN has told us the target – 30% by 2030. Is that likely to change over time? Sure, as things continue to move faster than predicted, the UN may at some point increase that (making it exponentially harder). However, if it doesn’t seem right, the NDP could just bravely set a higher target. It lacks ambition. And, despite the detail, does not cost out the transition clearly.

Green Party – a goal and a dream

The Green Party’s Mission Possible can be found here. It is excellent in a way, it covers all the bases, and is inspiring. But it lacks clear details, and also does not cost out the transition – in other words, it does not show, sector by sector, where we are now, and then how their plan will get us there. But, where?

But another good point about the Green plan – it aims for a 60% reduction by 2030. That’s double what the UN is calling for, and higher than even California’s targets. This is the best part of the Green plan – Mission Possible. But it definitely needs some detail.

The Green party attempt to build a plan which allows Alberta to keep pumping oil for quite some time, keeping it “Canadian” is out of keeping with an otherwise fairly sensible, although vague, plan.

Liberal Party – a dream

The Liberal platform is here. A key premise of their plan is, from Trudeau’s introductory speech, that “Canada is on track to reduce our emissions by 30% by 2030, compared to 2005 levels,” which is simply untrue. Not a good start.

The Liberal climate plan is to reach net-zero by 2050, which is good, but may be too late if the 2030 reductions are not enough. The 2030 goal is “exceed Canada’s 2030 emissions goal by introducing new carbon reducing measures.” (p. 29)

Their method of getting there is to; “set legally-binding, five-year milestones, based
on the advice of the experts and consultations with Canadians, to reach net-zero emissions,” and “appoint a group of scientists, economists, and experts to recommend the best path to get to net-zero.” p. 29

This is not a “plan”, it is a “plan to plan.” How long will that take, before any action starts? And what actions? Presumably those decided by the “group of scientists, economists, and experts.” A good strategy for 2009.

Global news summarised the Liberal climate platform as “The Liberal platform states that if re-elected, the federal government would set “legally binding” five-year milestones based on consultations with experts and attain net-zero emissions by 2050.”

The commitment to plant 2 billion trees is a good, concrete step, but will not get us there on its own.

Conservative Party – a hallucination / mirage

It is here. It is a disaster. It gives a fair bit of detail, all of it oriented toward anything other than reducing oil and gas output /consumption. The plan for supporting renewable energy is good, as are some other elements. We’ll need them in the 5 degrees of warming world their plan will lead to if elected.

Final thoughts

Another factor is the “reality spectrum” – if you’re a voter you’ll need to choose for yourself where to place your bet on this spectrum. A dream, which will likely never happen? Or a cold hard reality which will leave us with anything but. Or you can vote with an eye to the future, and how your vote today may shape party policies going forward. Those choices you must make for yourself.

The best plans, the Greens and NDP, and the mainstream plan – the Liberals (predictably), all fail in one area – carbon tax/carbon pricing. They all support it, in their various ways. And it is not enough. It is a good start, but in the end it is a neo-liberal, “the market will save us” scheme which will never truly yield the results we need. It is an important starting place. But cap and trade is closer, although still not enough. What we really need is source-reduction – we need to keep it in the ground (we’ll continue this thought in another post).

In that way, they all lack imagination. Again, as Greta Thunberg has said, we need new rules. All the plans lack courage to come out and really challenge the power base of our society, and the true source of the problem.




And the children shall lead.. (in the streets, in court, at the UN)

Yesterday Greta Thunberg shook the UN Climate Action Summit in New York. And on the same day announced that 16 youth from around the world “are petitioning the United Nations Committee on the Rights of the Child to hold five of the world’s leading economic powers accountable for inaction on the climate crisis.” And last week’s climate strikes were the largest ever, bringing over 4 million people into the streets around the world.

The world lately seems to have become an anti-dystopian, life-imitates-art era of promise.. does anyone remember the original Star Trek episode about a planet they visit where the adults are all gone and children have taken over? It was dark, and the children were Lord-of-the-flies-esque in their simplicity, need for play, and danger, as they assaulted the “grupps,” or grown-ups, with sticks and stones.

Instead, we live in a world where the adults insist on their need for play, refuse to grow up, and live in a dark Lord-of-the-flies-esque reality of their own creation, where dominating each other and their planet is so important they can’t see the cost.

And children are coming to our rescue. Here is a photo from yesterday’s Climate Action Summit in New York which will define the year, or perhaps even the decade that we are leaving;


This picture sums it up. Trump is the ultimate entitled adult child – selfish, shortsighted, pointlessly competitive, delusional, and ultimately destructive, and as such is reflective of current adult generations. Thunberg is the opposite; calm, intense, brilliant, mature, clear-eyed, and a courageous voice of truth.

She is not alone. Youth all over the world are taking their governments to court. Environnement Jeunesse were recently turned down for a class action in Quebec, although there were some positives to the case, such as a statement that climate matters are not strictly political, and are justiciable by the courts (para 69-72).

At the same time the Juliana youth climate case continues to proceed in the USA, successfully getting over each procedural hurdle so far. And there are more youth climate cases, such as Sinnok v. Alaska, Martinez v. Colorado Oil & Gas Conservation CommissionFoster v. Washington Department of EcologyPetition for Rulemaking to Limit North Carolina’s Carbon Dioxide Emissions, 4 Youth climate striker’s challenge of the Transmountain pipeline, and others.

Regarding the sci-fi episode we are in, in her earth-rattling short speech yesterday (text here) Thunberg confirmed her role as the mature lead-character  – leaving our role to be determined:

“You say you hear us and that you understand the urgency. But no matter how sad and angry I am, I do not want to believe that. Because if you really understood the situation and still kept on failing to act, then you would be evil. And that I refuse to believe.

Through the looking glass: Costa Rica and collective madness

Costa Rica has just announced the ambitious goal of banning all fossil fuels by 2021. Costa Rica admits there are challenges, despite getting 99% of energy from renewables – many cars and trucks in the nation still rely on gas and diesel, and getting that many people to buy new cars is unlikely by that date. Nonetheless, it’s a start. Many people around the world, especially other world leaders, may say that’s crazy, and impossible.

In Simon Pirani’s new book, Burning Up, he said about our failure to address climate change over the last 29 years as “[i]n a century’s time, when the impacts of global warming will be much more ruinous than they are today, people may look back at this failure as collective madness.”

A new article today announced “‘Precipitous’ fall in Antarctic sea ice since 2014 revealed.”

And a few days ago the OHCHR Special Rapporteur on extreme poverty and human rights released a draft report humbly entitled, “Climate change and poverty.”

The Special Rapporteur, Philip Alston, also a professor at New York University, wrote that;

“Even if current targets are met, tens of millions will be impoverished, leading to widespread displacement and hunger,” …

“Climate change threatens to undo the last 50 years of progress in development, global health, and poverty reduction.” … “It could push more than 120 million more people into poverty by 2030 and will have the most severe impact in poor countries, regions, and the places poor people live and work.”

“Most human rights bodies have barely begun to grapple with what climate change portends for human rights, and it remains one on a long laundry list of ‘issues’, despite the extraordinarily short time to avoid catastrophic consequences,” Alston said. “As a full-blown crisis that threatens the human rights of vast numbers of people bears down, the usual piecemeal, issue-by-issue human rights methodology is woefully insufficient.”

Is that enough information? Our Paris targets are insufficient, our traditional methods for dealing with problems are also insufficient, “woefully” so.

Costa Rica may be the only non-mad country on Earth.



BC’s 2040 vehicle emissions “targets” vs something useful..

Yesterday’s news was that “B.C. introduces law to require cars, trucks sold by 2040 be zero emission.” That looks good on paper, but is really not much help as far as fighting climate change in any meaningful way is concerned. But it could be.

There is more to it, of course, than just “zero emissions by 2040.” The draft Zero-Emissions Vehicle Act can be found here. It’s just gone through first reading, so there could be many changes yet. Andrew Weaver, leader of the Provincial Green Party has an informative post about it here. Weaver points out that the bill legislates that (in s. 7):

“(a) in 2025 and in each subsequent year, at least 10% of all new light-duty motor vehicles sold or leased in British Columbia must be zero-emission vehicles;

(b) in 2030 and in each subsequent year, at least 30% of all new light-duty motor vehicles sold or leased in British Columbia must be zero-emission vehicles;

(c) in 2040 and in each subsequent year, 100% of all new light-duty motor vehicles sold or leased in British Columbia must be zero-emission vehicles.”

So, there is not just one target in 2040, but ratcheting up targets along the way. The problem is – they do not start until 2025, after this government’s current mandate has ended, and they do not ratchet up fast enough, relying on the most significant change after 2030 and at 2040.

To put it another way, it means car makers can largely continue to make vehicles with the same very low emission standards they have now, until 2025, and only 10% of new vehicle sales must be Zero Emission from then to 2030, the date marking the “end of life as we know it,” according to the UN. So this Act will result in very little change to BC’s emissions before 2030, and the UN has told us we need to reduce emissions by 45% below 2010 levels by 2030 or face catastrophic consequences.

What would be useful? Well, next year is 2020. If 2040 is the target year, that’s 20 years. 100%, divided by 20 years, is five. So the amount could ratchet up by five percent per year, starting in 2020. The same end, but the requirement would come into effect almost immediately, and increase steadily and evenly. And it must not be a “target,” but mandatory.

Ie -in 2020 car manufacturers can only sell in BC if 5% of their cars released in the BC market are zero emissions. PERIOD. In 2021 – 10%, 2022 -15%, 2024 – 25%.

Regarding the target/mandatory question, section 7 of the Act, the part quoted above, starts like this, “The following targets are established for the purpose of reducing greenhouse gas emissions in British Columbia:…”. The word “targets” is key here. What does that mean?

It’s not in the definition section, so it’s not clear from the direct language of the Act what it means. It helps a bit to see that s. 8 mandates the Province make annual “Provincial targets reports.” So, it seems like the intention is that there will be reports on whether or not the targets are met. Which seems to imply that in fact “targets” mean just that – something we are aiming for.

Well, one might respond, maybe it’s not possible to make it mandatory, or a clear prohibition. Maybe. Except then there’s section 9:

Prohibition in 2040 and subsequent years

9  On or after January 1, 2040, a person must not make a consumer sale of a light-duty motor vehicle that is not a zero-emission vehicle.

So, we have 15 years of low “targets”, starting in 2025, and then a clear prohibition in 2040. Ten years after the key date given to us by the UN.

Of course, we all understand that we live in a world beholden to the oil and gas industry, and that to speak or act against them in any immediate and impactful way is political suicide, and that we have come to a point where we have to rely on children to speak the truth. And in that context this is a pretty good try.

It will, however, make very little difference in preventing the worst impacts of climate change in relation to the tipping points we face by 2030, and therefore allows extreme and irreversible climate change that will seriously alter, or ruin (or end), our children’s lives. We must try harder.

As one suggestion, summarised from above; make it mandatory instead of “targets,” and ratchet it up by 5% per year, starting in 2020. That would be a good start.

Some initial thoughts on a forestry policy for human survival…

Can we create national forest policies that help deal with climate change, both in mitigating its effects, and adapting to its effects? Yes.

This post is focused on Canada, but can largely be translated to other countries. As always, this is not about gradual change – but making abrupt turns that preserve a future for our children, on the basis that the old rules are not working.

The FAO has called for policy and legislative changes regarding forestry, although perhaps not as steep change as is advocated for here. Last year they released an updated version of Climate change for forest policy-makers, version 2.0. Originally released in 2011, this version has substantial changes. It recommends that :

To make progress toward achieving their climate change mitigation and adaptation goals, countries may need to review and revise, on the basis of good governance principles, their forest-related policies and the way these policies are implemented. Given that adaptation and mitigation actions will require a legal basis for related rights and obligations, forest laws and related regulations are likely to need to be reviewed and adjusted to ensure their consistency with the forest policies.

But first, let’s discuss some basics. A few basic legal / political premises:

  • Most forests in Canada is “crown land” – technically (theoretically) owned by the government of Canada, but held for the people
  • In Canada, under the Constitution, the provinces have jurisdiction over forests (Constitution Act, 1867, s. 92(5))
  • The federal government has traditionally conducted forest research through the Canadian Forest Service
  • Most forests in Canada are also subject to Indigenous rights and title, whether through treaty or the lack of a treaty (inherent rights)

Some scientific premises:

And a few premises about our current state of affairs

What is the solution in relation to forests? Since growing trees fix carbon, an easy place to start is massive tree planting programs. It would be even better if that included fruit, nut, and seed bearing trees, and ensures forests are designed for hydrological stability and fire resistance.

This would have include the end of deforestation and forest degradation, and an end to the cutting of old-growth and high productivity rainforests – including on Canada’s west coast. Deforestation and forest degradation currently accounts for 30% of carbon emissions. A tall order, but every step towards it counts.

These things are no-brainers, it’s an easy way to stop liquidating carbon and start pulling it out of the atmosphere. The Jane Goodall Institute has done a lot of work on creating awareness regarding the power within forests to deal with climate change.

A simple step is to mandate that all forestry companies that manage public lands through tenures, contracts or other means ensure their lands are fully stocked, ie – covered in growing trees. And a national tree-planting program to fill in every available space, including those which are not suitable for timber. Some scrubland plants are actually excellent carbon-sequesters, and can be planted on lands which are not managed for timber.

The next is to assign some smart foresters and scientists to sort out the details on what is the best mix of species to plant in each area to maximise carbon sequestration, ecosystem benefits, hydrological balance, and timber production.

Is there legal authority to do this? Yes. Provinces and the feds control most forest land in Canada, to a degree. First Nations / Indigenous Peoples also exert more and more control over the land. The best practice for dealing with land use decisions, and to deal with climate change, is to implement UNDRIP, particularly the veto. This is the same in all post-colonial countries.

Are there contracts in place with forestry companies which could prevent fast action or rapid changes to the forestry sector? Yes, there are. How can they be dealt with? Buy outs, agreements, and where that doesn’t work – expropriate those rights or deal with them by legislation.

Could we be sued under NAFTA and other trade agreements for expropriating rights or unilaterally revising contracts of foreign-owned corporations or individuals? Possibly. But there are ways to deal with that too, which will be the subject of yet another post.

In summary – forests are a powerful tool to deal with climate change. Considering the lack of meaningful change so far in relation to forestry powerful legal tools may have to be used to gain the climate benefits which are possible. Change may be difficult, but is not impossible, and the legal obstacles are surmountable. Will we find the will?





New climate laws.. (here’s your political platform)

A recent article in Nature, “Rules for a safe climate,” is helpful for the notion that we need new rules to come out of Katowice, but it doesn’t really give much in the way of new ideas for rules or laws in relation to solving the climate crisis. In response to Greta Thunberg’s call for new rules, mentioned in a  previous post, here are a few ideas.

Many people treat this problem as if some bad weather is on the way, so before people start with the “yeah, buts”, this is the context: emissions continue to rise, human survival is at stake, and the rules we have are not working.

So we need a whole raft of new laws and revisions. Here are some initial thoughts:

  1. Revamp environmental assessments to prioritise climate change and remove exemptions from the process;
  2. Reallocate fossil fuel subsidies to clean energy subsidies in short order. This will create new employment;
  3. The federal government has traditionally done forest research – research must be done on how to create massive tree planting programs for carbon-sequestration, food production, biodiversity, and fire resistance;
  4. And until that is done massive tree-planting programs need to be started – for carbon sequestration, food and fire resistance;
  5. We need to push for hard targets internationally, and severe penalties for failure to meet them;
  6. Criminal liability for serious acts related to climate change;
  7. New powers to expropriate intellectual property in the national and human interest where technology is not shared willingly (like Tesla did);
  8. Strict laws banning designed obsolescence. This is not brand new, but still has a long way to go in gaining traction;
  9. Free public transportation. Luxembourg has done this, we can too; and
  10. Increase stumpage and royalties for forestry and oil and gas in order to cover costs above.

In the interests of “brainstorming” the “politically feasible” calculus has been removed from this process. In order to come up with new ideas you have to agree not to shut them down at the earliest stage. Flesh them out first, and then assess their viability. That will be food for future posts.

Just a few ideas to start..

Can governments declare a “Climate Emergency”?

We can thank Donald Trump for this question, which should have been obvious. “Can a country invoke legislation designed for emergencies regarding climate change?” He raised the issue of emergencies in relation to his pet-project the “border wall.” But, as many pointed out, the real emergency is our global climate. This post will focus on Canada, but the ideas are likely roughly transferable to other nation-states (although there could be substantial differences in powers granted under emergency legislation and how that fits with constitutional structures).

Do we have legislation which can grant broad powers to the government to deal with emergencies? In Canada the answer is yes, yes we do. The Emergencies Act (R.S.C., 1985, c. 22 (4th Supp.)) was passed in 1988, replacing the War Measures Act.

The Emergencies Act is a federal piece of legislation designed to deal with national emergencies, or emergencies which the provinces are not able to deal with. There is wording in the Emergencies Act which makes it clear that it should not be used if less drastic means would work instead (s. 3).

There are other limits on the powers granted under the Act. One is that Parliament must review any declaration made under the Act by Cabinet, and the other is that the Charter of Rights and Freedoms still applies, and s. 1 (justification of infringement) is the only tool to violate Charter rights.

The key part for our purposes, the “Public Welfare Emergency” is found in s. 5. It is defined as:

public welfare emergency means an emergency that is caused by a real or imminent

(a) fire, flood, drought, storm, earthquake or other natural phenomenon,

(b) disease in human beings, animals or plants, or

(c) accident or pollution

and that results or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency. (bolding added).

Climate change seems to fit that description, at least generally. But, is it acute enough yet? And is it necessary?

On the one hand all we’ve had is some big fires, a bit of heat, and a minute rise in sea level. And we’ve also had some storms which seem bad, but were really only marginally worse than we’ve had in the past, and may pale in comparison to storms to come in the foreseeable future.

On the other hand, according to the World’s leading climate scientists we have eleven years to roll back our carbon footprint significantly. That’s not much time. Even more ominously, many scientists argue that once we hit a tipping point where warming initiates other changes which also accelerate warming, such as melting tundra releasing carbon, and the oceans ceasing to absorb carbon, there is no way to stop the terrifying negative impacts of climate change.

That’s pretty acute, despite life generally carrying on as it has. But maybe not acute enough, and this is simply something to consider for the future.

Is using the Emergencies Act necessary? In other words, how would it, or could it, help? There are two considerations here, one is what is needed to resolve the crisis, and the other is what powers are granted under the Emergencies Act?

As far as what is needed is concerned, the imagination is the limit, But we know some fundamentals – cut fossils fuel use, plant trees, build a renewable energy industry and increase research and development in this area.

What powers are granted for Public Welfare Emergency? They are listed in section 8.

8 (1) While a declaration of a public welfare emergency is in effect, the Governor in Council may make such orders or regulations with respect to the following matters as the Governor in Council believes, on reasonable grounds, are necessary for dealing with the emergency:

(a)the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals;

(b)the evacuation of persons and the removal of personal property from any specified area and the making of arrangements for the adequate care and protection of the persons and property;

(c)the requisition, use or disposition of property;

(d)the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered;

(e)the regulation of the distribution and availability of essential goods, services and resources;

(f)the authorization and making of emergency payments;

(g)the establishment of emergency shelters and hospitals;

(h)the assessment of damage to any works or undertakings and the repair, replacement or restoration thereof;

(i)the assessment of damage to the environment and the elimination or alleviation of the damage; and

(j)the imposition

(i)on summary conviction, of a fine not exceeding five hundred dollars or imprisonment not exceeding six months or both that fine and imprisonment, or

(ii)on indictment, of a fine not exceeding five thousand dollars or imprisonment not exceeding five years or both that fine and imprisonment,

for contravention of any order or regulation made under this section.

A particularly fitting section is 8(i). But others could possibly be used too.

Another interesting section is 8(c), which could possibly be used to seize oil and gas assets, pay for them, and start to shut them down, as well as fund massive renewable energy projects. It could possibly also be used to seize intellectual property related to renewables, with fair market compensation.

Could the Act be used to jump-start the building of a renewable energy industry? It could possibly work for that, but is not really suitable. There are probably more appropriate measures. But, it may depend on how much further down the wrong road we go.

Could sections 8(d, e and f) be used to fund a massive national tree-planting/employment project? Planting fast growing and food-producing trees in all available green space in Canada might become necessary if we get to 2025, are having major disasters, and it’s clear we are headed for a cliff.

It is most well-suited, however, to a genuine climate-caused emergency, such as a massive winter storm with extensive power outages, tsunamis, abrupt sea level rise, flooding and fire. In that case it would be used for the more standard response – shelter, medication, relief efforts, the supplying of food and water. But tree-planting or other actions could be part of that emergency declaration if climate change was clearly connected to it, in order to do everything necessary to prevent the next. Parliament would need to be on board, and any infringement of rights would have to be justifiable under the appropriate legal test (the Oakes test).

For now it’s food for thought. Hopefully we will not need to revisit this post any time soon.