Climate Change in Canada: Intersections of Law and Politics

Tristan E. Masson: Tristan is an undergrad student in Political Science and Sustainability Studies at Concordia University. He currently sits on the Board of Directors of Sustainable Concordia.

Due to the global dimension required for the success of collective action on climate change, the scope of analysis is often not confined to the boundaries of a single state. However, the picture is incomplete without due consideration of the internal dynamics of a country. Climate change policy remains politically precarious in Canada, and these tensions are aggravated by the need to navigate the federal nature of the Canadian political system.

An aerial view of an extraction site in the area of Fort McMurray, Alberta. Attribution: Greenpeace/Jiri Bezac, Tarsands

Even before becoming Prime Minister, Justin Trudeau’s Liberals committed to climate action and international multilateralism to this effect in their election campaign platform. The Prime Minister’s enthusiasm was aptly epitomized when he emphatically announced to a crowd of CoP21 delegates: “Canada’s back, and here to help”.

Perhaps to the dismay of many, public policy is not so simple. Given Canada’s democratic and not dictatorial approach to politics, one should take the PM’s words with a grain of salt, or, to adapt the proverb, a drop of oil.

Last November the PM approved two pipeline projects while rejecting a third. More recently, President Trump confirmed that he would consider the construction of Keystone XL, a decision “welcomed” by PM Trudeau.

This should come as no surprise given the broader economic context. Canada’s economic bread and butter, as it were, has historically been to rely on staple resource commodities with an export-led growth strategy. With the days of the fur trade long behind us, Canada’s most significant resource commodity is energy—a pattern countries endowed with abundant energy followed in the 20th century.

By one measure, fossil fuel products as a proportion of exports have passed from little over five percent in 1997 to one-fifth of all exports in 2011. In comparison other exports, energy products have been the most significant export product of the last five years.

Unsurprisingly, the three most carbon-intensive sectors are oil and gas, transportation and electricity. One can see immediately the interconnection of the three, for the fossil fuel sector feeds the other two (and many more). With this in mind, coupled with the fact that the vast majority of global greenhouse gas emissions come from the energy sector, climate change mitigation efforts are best to focus on scaling back emissions-heavy energy forms and energy efficiency. For Canada, the burning question is simple but challenging: how do we contract the most significant sector in the economy while avoiding immediate economic downturn and an economy-wide ripple effect?

This political and policy dilemma is made more complex in Canada due to the federal nature of our political system, where legal jurisdiction is shared between two levels of government each sovereign over their respective spheres of powers. The current tenor of the climate debate accepts that effective policy will inevitably overlap these jurisdictional divisions, thus requiring both federal and provincial cooperation and assent.

Canada’s Premiers and Prime Minister jointly announce the Pan-Canadian Framework on Clean Energy and Climate, December 9th 2016. Attribution: Équiterre, The Pan-Canadian Framework on Clean Growth and Climate Change

Canada’s Premiers and Prime Minister responded with the Pan-Canadian Framework on Clean Growth and Climate Change. The framework includes an investment strategy and new regulation spanning across sectors. However, we must note what is missing: the signatures of the provinces of Saskatchewan and Manitoba. It’s also worth underscoring that Alberta’s NDP government, the only party favourable to such initiatives in the province, will be in a precarious position come next election. As a matter of fact, Premier Notley’s actions on climate change have already sparked howls from the Alberta opposition. Federally, many MPs in the Conservative Party of Canada caucus, as well as contenders for its leadership, have taken issue with the carbon price—a centerpiece to the policy.

We’re often reminded that environmental issues can’t be solved in one day’s work, and in the case of climate change this rings true even across generations of collective action. A political dilemma that is inherently complex becomes only more fraught and precarious when navigating the legal terrain of Canada’s federal political system. While the momentum has swung towards greater action, we must expect the pendulum to swing back. When this occurs, the result will not so much resemble the Tragedy of the Commons, but rather the inevitable conflicts that stems from the intersection of law and politics.

 

What are we doing about the “Canada Brand”?: Canada’s strides towards corporate accountability in the extractive sector

Sydney Lang is a first year law student and an associate editor with the JSDLP. She recently completed a BA from the University of Toronto in Socio-Cultural Anthropology and Equity Studies. She organizes with the Mining Injustice Solidarity Network.

Last fall, Osgoode Hall’s Justice and Corporate Accountability Project published a ground-breaking report detailing the egregious violence perpetrated by Canadian mining companies towards communities who both neighbour and have been displaced by their mine sites in Latin America. The report, titled The “Canada Brand observes that “violence is accepted as a part of doing business.” The facts are astonishing, yet unsurprising. Incidents involving 28 Canadian mining companies that occurred between 2000-2015 led to 44 deaths, 403 injuries, and 709 interactions with law enforcement, including legal complaints, arrests, detentions, and charges. A significant majority of these incidents were classified as targeted, or occurred when the community was protesting the construction or operations of a mine.

Attribution: MISN, MISN Sneaks into the World’s Largest Mining Convention

Attribution: MISN, MISN Sneaks into the World’s Largest Mining Convention

Unfortunately, individuals and communities who have been injured or killed at the hands of Canadian mining companies and their subsidiaries typically have little to no legal recourse in the jurisdiction where they are harmed. They often have no means to seek justice and hold corporations accountable for their human rights violations.

Several factors contribute to this access to justice problem. First, there are huge power imbalances between local community members—often Indigenous inhabitants whose land, labour, and bodies are being exploited—and large multi-national corporations. When claims are brought against a corporation, the community is likely to receive threats and acts of violence against them. Further, in some countries where Canadian mining companies operate, claimants have been repeatedly denied a fair trial due to systemic corruption in the judiciary, procedural inefficiency, and common interests (mining and political) shared by the multinational company and the state in which they are operating.

In order for the Canadian government to take responsibility for Canada’s “brand,” there must be legal mechanisms in place whereby Canadian companies can be held accountable in Canada for their human rights violations abroad. There have been strides to do from various stakeholders across the country, mostly led by academic advocates, NGOs, and grassroots activists. These strides have taken the form of lawsuits, proposed legislation, electoral promises, and policy campaigns.

To start, there are two ground-breaking cases that are currently ongoing in Canada. In both cases, the plaintiffs were able to overcome the doctrine of forum non conveniens. This doctrine provides courts with the “discretion to dismiss a case in favour of a foreign jurisdiction.” The application of this doctrine has historically protected Canadian companies from being held accountable in Canada for subsequent violence and exploitation related to their operations abroad.

Most recently, on January 27th, 2017, the British Columbia Court of Appeal permitted a lawsuit to advance against Tahoe Resources Inc., brought by 7 Guatemalan men for the injuries they suffered during a peaceful protest at Tahoe’s Guatemalan mine. This is the first time that a lawsuit against a Canadian company for their human rights violations abroad is being permitted to advance in a Canadian court.

In October, the Supreme Court of British Columbia also permitted a lawsuit to advance against the Canadian mining company Nevsun Resources. The suit was brought by 3 Eritrean men for Nevsun’s complicity in the use of forced labour (as part of the dictatorship’s conscription program) at their Bisha mine in Eritrea. This is the first time that a mass tort claim for modern slavery will go forward in a Canadian court.

Attribution: MISN, WANTED: Tahoe Resources’ Corporate Criminals action – May 4, 2016

Attribution: MISN, WANTED: Tahoe Resources’ Corporate Criminals action – May 4, 2016

In addition to these lawsuits there have been several private members’ bills proposed by MPs that address issues of access to justice and corporate accountability. John McKay brought forward Bill C-300 in 2009. Although this bill seemed to be a positive stride towards accountability in the extractive sector, it did not pass. Others have followed, most recently Bill C-331, which was introduced in December and is likely to have a similar fate.

A final approach being advanced to hold Canadian companies accountable involves independent Government bodies. Last fall, the Canadian Network for Corporate Accountability (CNCA) released a model ombudsperson legislation. This was in response to a lack of government action of their electoral promise to create an independent ombudsperson for the extractive industry. It was also in response to the Corporate Social Responsibility (CSR) counsellor and National Contact Point (NCP) positions created by the Harper government that have proven to be both inefficient and non-independent from the government and mining industry. According to the CNCA, it appears likely that the Liberal government will propose an ombudsperson within the next few months, although the details of the ombudsperson role remain unknown.

It is still unclear whether a solution to corporate accountability will come from the courts, legislation enacted by Parliament, or an independent body, such as the ombudsperson. Regardless, it is evident that domestic and international pressure is increasing and the Canadian government, whether they like it or not, must respond.

 

Interested in learning more about corporate accountability, access to justice, and the Canadian extractive sector? We suggest these selected articles from our past issues:

6:2 Access to Justice: The Impact of Injunction, Contempt of Court Proceedings, and Costs Awards on Environmental Protestors and First Nations

8:1 Exploring the Mining “Money Trail”: Assessing British Columbia’s mining Tax Regime and Unearthing Legal Tools that Foster Greater Returns for Local Communities

9:1 The Next Stage of CSR for Canada: Transformational Corporate Governance, Hybrid Legal Structures, and the Growth of Social Enterprise

9:1 Case Comment: Commentaire sur Anvil Mining

These articles are referenced as suggested reading. It should not be taken to imply their authors share the views expressed above. 

The False Promise of Natural Gas

Patrick Kanopoulos – Patrick is a first-year law student at McGill University. He holds two degrees in engineering from the University of Toronto and is an associate editor for the McGill International Journal of Sustainable Development Law and Policy.

Shale Gas: What is it and why is it dangerous?

Despite rising demand in the natural gas market, the price of natural gas has continued to decline. This is a consequence of the precipitous increase of natural gas produced by non-conventional sources: tight shale formations are drilled horizontally and broken apart by a process called hydraulic fracturing. The process loosens up the rock formations which have trapped natural gas. Once drilling and fracturing is completed, and the water and chemicals have been recovered from the well-bore, the natural gas vents upwards through the borehole and is recovered at the surface. Non-conventional shale gas recovered in this manner represented a negligible portion of the shale gas market in the early 2000’s, and now represents 48% of natural gas produced in the U.S.

Growth of shale gas production in the US since 2000. Attribution: US Energy Administration, via Wikimedia commons.

Growth of shale gas production in the US since 2000. Attribution: US Energy Administration, via Wikimedia commons.

While the negative effects to local groundwater sources and the effects of increased seismicity have been well documented and disseminated in popular media, the full extent of the atmospheric effects of shale gas production are only now coming to light. The most recent scientific evidence on shale gas extraction indicates that methane emissions resulting from shale extraction could far outweigh the benefits of using natural gas over coal as an energy source. The exact quantity of methane that leaks from the well-bores has long been a source of controversy: scientists and engineers were unable to quantify the exact amount of methane that was leaking through, and around, well-casings which are designed to prevent the gas from escaping into the atmosphere. The EPA long suggested that quantities lost to the atmosphere were limited to approximately 2% of methane recovered for combined production (upstream) and transmission (downstream) losses. Recent research based on satellite data suggests that this fugitive methane from up-stream shale production could be as great as 10.1% – a far greater quantity than originally anticipated. While there is still some controversy surrounding the upper limit of these findings, many reports place the range of fugitive upstream methane emissions at approximately 4% to 9%, much higher than the EPA’s own estimates.

One might ask why the leaking of methane is significant? If all the methane were recovered, the combustion products used to produce heat or electricity would be released into the atmosphere as carbon dioxide anyway. The simple answer is that methane, while it remains in the atmosphere for a shorter period, is a far more potent greenhouse gas than carbon dioxide. Over a 20-year period, the global warming potential (GWP) – a term used for ability of the gas to trap heat in the atmosphere – of methane is over 72 times greater than for an equal quantity of carbon dioxide. Over a 100-year period, the GWP falls to approximately 25. Once a certain quantity of methane is leaked from a well-bore and into the atmosphere, the relative advantage of using natural gas as opposed to coal is quickly diminished. Estimates suggest this is decisively the case today. In fact, using shale gas as an energy source is likely worse for the short-term prospects of the climate than coal. Most studies put this break even point at about 3% of methane vented to the atmosphere relative to the total quantity of methane which makes it to the end user when the 20-year time horizon is considered.

The short-term window of methane’s existence in the atmosphere is important: many of the climate’s tipping points will occur within this period. The irreversible break-up of the west-Antarctic and Greenlandic ice sheets are predicted to begin this century. On top of this, a warming atmosphere risks losing arctic permafrost (which will release even greater amounts of methane into the atmosphere), and precipitating a positive feedback cycle. Once these processes begin, the ensuing sea-level rise will be impossible to stop.

Flaring of natural gas, North Dakota. Attributions: Tim Evanson.

Flaring of natural gas, North Dakota. Attributions: Tim Evanson.

Why is methane an indispensable energy source for Canadians?

Many provinces across Canada have adopted natural gas as an energy source as part of a strategy to reduce greenhouse gas emissions. This strategy focusses on using natural gas as a “transitional energy source” until natural gas generation can be replaced by renewable sources of energy. The strategy involves phasing out older coal generating power plants which produce approximately twice as much carbon dioxide as natural gas electricity generation. As you might expect, these policies did and do not consider the emerging evidence that natural gas upstream natural gas emissions are not as clean as they seem.

Significantly, natural gas generated electricity has the capacity to compensate for the intermittency issues that plague solar and wind-generation energy sources. Natural gas generation stands as a safeguard for the variability of renewables, and the peak demand loads characteristic of most energy generation networks. It is not enough to simply replace natural gas with renewable generation. Rather, any feasible alternative must implement energy storage solutions which offset the intermittency issues of renewables and can respond to peak demand loads. No universal and widely-deployed solutions of this nature exist, and much more research is required in this area.

What are the legal and policy implications of these findings in Canada?

First, and most obvious, the urgency of a natural gas phase-out must be re-evaluated considering these major findings. Canadian provinces which rely on natural gas as an energy source need to invest in the deployment of renewable energy sources, and the research and implementation of energy storage at user and network-wide scales. Some of the demand for heating can be offset by heat pumps and geothermal systems, financed through aggressive government subsidies and financing programs. Switching back to coal, or ensuring that only conventional sources of natural gas are being exploited are not solutions. The long-term effects of coal generation are unacceptable by any standard, and ensuring that natural gas is derived from a conventional source will only reallocate the demand for non-conventional natural gas elsewhere.

Second, and less obvious, are the implications on cap-and-trade and carbon capture programs. The emerging evidence regarding fugitive methane has given scientists an idea of the quantity of methane being emitted to the atmosphere in the aggregate, but it gives no indication of the quantities leaked by individual wells or operators. Any emitter falling within a carbon tax or cap-and-trade system would find themselves unable to correctly quantify, and take measurable efforts against leaking wells. Further to this point, capturing carbon emitted by natural gas generation may be effective in reducing the carbon dioxide released into the atmosphere, but these technologies will not address the more critical issue of containing methane where it is leaking in the greatest quantities: at the well. The point here is that leaking methane from non-conventional gas production is not easily resolved by either the best technological or economic means available at present.

In the short term, more research is required to establish exactly how much methane is emitted from natural gas extraction from shale. Until this is firmly established, Canadian provinces and territories considering shale gas development should impose moratoria until there is firm scientific consensus on the fugitive methane emissions and means of containing them. Quantification of fugitive emissions is also essential for bringing existing shale operations into carbon tax and trading regimes.

In the medium-to-long term, provincial governments should reconsider the central role of natural gas in their energy strategy, and should invest aggressively in the testing and implementation of energy storage technologies to phase out natural gas as quickly as possible. Considering Canada’s agreement to curb its emissions following the COP21 Paris Summit in 2015, the Canadian government, along with all provinces, must re-examine their role as both producers and consumers of natural gas – and take serious and concrete steps towards better energy alternatives.

Interested in learning more about policies revolving around transitioning towards low-carbon economies? We suggest these selected articles from our past issues: 

 

 

These articles are referenced as suggested reading. It should not be taken to imply their authors share the views expressed above. 

The Case for Nationally Self-Interested Climate Action

Tiran Rahimian is an associate editor with the MJSDL. He is currently in his second year at the McGill Faculty of Law.

The incoming president of the planet's second-biggest polluter has gone from signing a public letter calling for cuts to greenhouse gas emissions to dismissing climate change as a "Chinese hoax", promising to withdraw from the Paris accord, and finally conceding that there is “some connectivity” between human activity and global warming. Attribution: Gage Skidmore, Donald Trump.

The incoming president of the planet’s second-biggest polluter has gone from signing a public letter calling for cuts to greenhouse gas emissions to dismissing climate change as a “Chinese hoax”, promising to withdraw from the Paris accord, and finally conceding that there is “some connectivity” between human activity and global warming. Attribution: Gage Skidmore, Donald Trump.

Climate change mitigation is often described as a prisoner’s dilemma. The default assumption in sustainable development scholarship has long been that the domestic costs of reducing greenhouse gas emissions outweigh its domestic benefits, thereby giving rise to a ‘tragedy of the commons’ wherein individual states are incentivised to ‘free-ride’ on the efforts of others. There is nonetheless an increasingly convincing prima facie case that the decarbonisation of the global economy can be sustained in ways that are actually net-beneficial to individual states, even leaving aside the blatant environmental benefits. In an age where the incoming leader of the world’s second-biggest polluter is skeptical of anthropogenic warming and promises to scrap “job-killing restrictions” on the production of fossil fuels, the case for nationally and commercially self-interested climate action provides considerable succor to optimists: with or without the United States, national and commercial self-interest will sustain the combat against climate change.

In China, the renewable energy industry has evolved from an ‘attractive alternative’ to a vital imperative. A recent study found that urban pollution contributes to 1.6m annual deaths in the nation’s cities. In a bid to fight its toxic air crisis, the planet’s largest emitter of carbon dioxide has since launched an ‘environmental police force’ to enforce emission restrictions in its capital, Beijing. The People’s Republic has also evolved over the past decade into the world’s largest producer of solar energy, wind power, and smart grid technology.

Self-interest will also keep the world’s fourth largest polluter on the path towards cleaner energies. It is estimated that India spends 2.6% of its GDP to deal with the consequences of extreme weather caused by climate change. Global warming has exacerbated the frequency and severity of its droughts, storms, and floods, causing an estimated USD 5 billion of damage per annum. It has also reduced India’s agricultural productivity, and raised sea levels along its 7,500 kilometer coastline, severely damaging its already frail and crumbling infrastructure. Comprehensive climate action would accordingly make sense twice over for the Indian subcontinent.

Commercial self-interest will also see to a steady decarbonisation of global markets. The costs of clean energy technologies are declining to historically unprecedented lows, rendering an industrial transition not only plausible, but actually more profitable. Since 2008, the bill for electric cars’ batteries has decreased by a whooping 80% globally. In northern Europe, the costs associated with wind energy have halved in only the past three years. Meanwhile, solar price modules have fallen by 75% since 2009. All this while the costs of fossil fuel production are on the rise.

Air pollution in Beijing. Attribution: Way2Time, Air Pollution in Beijing, China.

Air pollution in Beijing. Attribution: Way2Time, Air Pollution in Beijing, China.

And it all only gets better: the more renewable technologies we build, the cheaper they get. It is estimated that every doubling of installed capacity decreases prices by some 20% due to improvements in technology and economies of scale. Firms will be incentivised to invest in these innovative sustainable industries, and a Trump Presidency is unlikely to affect that: energy decisions typically last for decades, and a four-year mandate will not weigh in such long-term investments.

These epochal changes will curb the already plummeting demand for oil, and lead us towards the tipping point where opting for clean energy is not only environmentally sound, but economically imperative.

This, to be clear, is not to trivialise Trump-fuelled anxiety over the survival of our species. The prospect of the world’s second largest polluter ‘free-riding’ on the climate efforts of others is no laughing matter. Even if the incoming administration doesn’t live up to its promise to “cancel” the Paris deal (i.e. withdraw from the international accord), it certainly will not galvanise action. But this need not be the fiasco many fear; commercial and national self-interest, coupled with the reasonably loose structure of the Paris accord, will incentivise the market as well as the world’s largest emitters of green house gases to remain on the path towards decarbonisation.

If anything, Mr. Trump’s brand of protectionist, inward-looking foreign policy will mark the beginning of the end of American leadership in global affairs. A Trump Presidency may be to the United States what the Suez Crisis was to Britain and the Gothic War to the Roman Empire; it could mark the beginning of the collapse of American imperialism and hegemony in the world.

Interested in learning about the prospect of criminal liability for sustainable climate governance? We suggest these selected articles from our past issues:                                                        

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