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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:                                                        

New year, new journal title, and new exploration into climate change action with the 4th MJSDL Colloquium

Rosine Faucher est une étudiante en droit à l’Université McGill. Elle détient un baccalauréat en sciences politiques lors duquel elle a eu la chance de travailler pour la Chair UNESCO-Mcgill Dialogues pour un avenir durable, ainsi que pour le Secrétariat de la Convention sur la diversité biologique, une branche du programme des Nations Unies pour l’environnement. Elle est couramment rédactrice au sein de la Revue

MJSDLP’s 4th Colloquium, The World after the Paris Agreement. Attribution: Adrian Pel.

MJSDLP’s 4th Colloquium, The World after the Paris Agreement. Attribution: Adrian Pel.

The McGill Journal of Sustainable Development Law (MJSDL) had a busy Friday, with the Journal’s fourth colloquium taking place. The World after the Paris Agreement was composed of two panels and concluded with a talk from our keynote speaker, Professor Marie-Claire Cordonier Segger.

The first panel, Hope and Skepticism: Is the Paris Agreement the Solution? was moderated by Professor Jaye Ellis, and featured an enlightening conversation about what effects the Paris Agreement would or would not have in the future. At first, Christopher Campbell-Durufle presented his doctoral thesis, which essentially evaluates the role of the Paris RuleBook in making the Paris Agreement successful. Christopher Campbell-Durufle highlighted the Agreement’s main advantage: its diffuse legality in climate change. By involving states and non-state actors, as well as emphasising increased transparency through binding and non-binding processes, compliance, he argues, seems more realistic.

On the other hand, Bruce Pardy argued that the Paris Agreement was not stringent enough on parties because it maintained a principle present in climate change negotiations since the beginning, that of common but differentiated responsibility (CBDR). Our earth being a common, the dilemma of internalising externalities, trends of emissions in developing countries such as China, the financial aspect of the Paris Agreement, and finally populist resistance towards environmentally minded measures with financial impacts on individuals make the CBDR principle and more generally the Paris Agreement flawed. The Paris Agreement should thus be put aside, as a solution encapsulating the Stockholm principle would be more appropriate in order to tackle climate change.

Tracy Bach argued the opposite. For her, the Paris Agreement is another step ahead towards climate change adaptation and mitigation. However, she suggests focusing on the national and subnational level, and more specifically to litigation, in order to see the positive impacts of climate change negotiations. Tracy Bach argues that climate change negotiations have an impact on the discursive tools used by litigants to support claims of environmental degradation. Many elements of these negotiations, e.g. information extracted from NDCs, are integrated in claimants’ arguments and are successful, like the case fought by Urgenda in the Netherlands.

Similarly to Christopher Campbell-Durufle, Géraud de Lassus Saint-Geniès examined the nexus between the UNFCCC and the Paris Agreement to understand the legal significance of their connection. In inquiring if the Paris Agreement is an implementation protocol of the UNFCCC or should be interpreted more broadly, Géraud de Lassus Saint-Geniès argues that in moving forward an attempt towards minimising such interpretative ambiguity would make the Paris Agreement stronger.

The panel finished on a very inviting note by David Coon who advocates that a low carbon society is a projet de société and depends on our willingness as communities to take action. He pointed to historically successful examples like the Révolution Tranquille as inspiration to find a way forward. This panel gave rise to many questions. People raised issues ranging from equality to the technicality engrained in processes and agreements emanating from climate change negotiations.

The second panel, A Practical Point of View: Implementation, Implications and Effects, moderated by Ayman Cherkaoui, focused, as the title suggests, on local impacts of the Paris Agreement. Most panellists addressed the impact of the Paris Agreement in Canada (either at the federal or the provincial level). Our last speaker did touch on the impacts (or lack thereof) such agreement would have in the United States. Audrey Dépault opened the discussion by presenting the Pan-Canadian Framework, i.e. the implementation tool of the Paris Agreement in Canada. Such framework was designed using British Colombia’s climate policies as a benchmark. It suggests measures such as establishing a carbon pricing system. It also stipulates that all provinces should commit to at least the federal Green House Gas emission reduction target, i.e. 30%. For Audrey Dépault, “It only makes sense that if Canada led the discussions during the Paris Agreement negotiations that it now leads its implementation.”

Duncan M. McPherson raised issues at the provincial level of such Pan-Canadian framework, adopting an Albertan perspective. Indeed, Duncan M. McPherson highlighted challenges resulting from imposing a general carbon pricing system throughout the country, suggesting that provinces like Alberta might not be able to afford a climate plan where the price of carbon ultimately rises up to $50/t in 2022. How the federal government will deal with Saskatchewan, which is not part of the Pan-Canadian Framework, might have an impact on the political answer of the Albertan government regarding its currently suggested carbon pricing scheme.

The Ontario perspective was explored by Tyson Dyck, who suggested that there were challenges when a national framework and international commitments relied on implementation of sub-national programs. Attribution of international emission reduction, price certainty and effective pricing signals are different issues standing in the way of achieving Canada’s nationally determined contribution. Finally, Paul Astolfi ended this panel by presenting a United States perspective of the Paris Agreement. Questions such as “Are the United States bound to the Agreement by law?” were explored, with Paul Astolfi suggesting that the president has some but not absolute influence on the outcome post-Paris Agreement.

Key Note Speaker Marie-Claire Cordonier Segger, Advancing Climate Law and Governance for Sustainable Development. Attribution: Adrian Pel.

Key Note Speaker Marie-Claire Cordonier Segger, Advancing Climate Law and Governance for Sustainable Development. Attribution: Adrian Pel.

This fourth MJSLD Colloquium ended on a great note, with the presentation Advancing Climate Law and Governance for Sustainable Development from our keynote speaker Marie-Claire Cordonier Segger. She started by explaining why one should look at the Paris Agreement with hope. Climate change is more and more felt everywhere. What was once something happening far away is now a very part of our daily reality. Climate change affects us all and has personal impacts. The Paris Agreement, through its shared commitments, e.g. passing from a 2-degree increase to a 1.5-degree Celsius increase, is thus an acknowledgement that climate change is now globally recognised. Moreover, obligations featured in the Paris Agreement, like increased transparency and nationally determined contributions, further support this global change of mindset. However, among other things, the treaty depends on rapid ratification at the national level. Marie-Claire Cordonier Segger highlighted the importance of the law in contributing to climate change mitigation. Indeed, law and its concerns for gender equality, compliance, equity and access to justice must be kept in mind in the implementation of the Paris Agreement. Marie-Claire Cordonier Segger thus invites jurists to join the effort and help making the Paris Agreement a working tool to combat climate change.

Thank you everyone for joining, helping and making this event a great success. And hopefully, see you next year!

 

Interested in reading on other MJSDL Colloquiums? We suggest this selected past piece: 

This piece is referenced as suggested reading. It should not be taken to imply its author share the views expressed above. 

Making Peace with 2016: Relaunching the Green Agenda

By Fabian Bargout 

President-elect Donald Trump sharing his wisdom.  Gage Skidmore, Flickr Commons

President-elect Donald Trump sharing his wisdom.
Gage Skidmore, Flickr Commons

2016 was the year of make believe. The Oxford Dictionary’s word of the year is “post-truth”, an Orwellian neologism that one would expect to find in one of Frank Underwood’s monologues, rather than on the Economist’s leading cover. But considering the unforeseen outcome of the US election and the chaos of the Brexit circus show, reality has actually surpassed the grandiose fiction of TV. For sustainability proponents, there is actual cause for concern, as uncertainty clouds hopes for change.

The advent of the post-truth era has hindered long overdue multilateral efforts to address environmental and economic imperatives. On the environmental side, simply by announcing executive appointments, President-elect Trump may well have effectively killed the Paris Agreement – something he already said he wants to quit. While China has reaffirmed its commitment to Paris (which, like the US, it ratified, too), it is uncertain whether it would really implement Paris if its main competitor opts out. (For more discussion of the future of Paris, see my colleague Laurent’s recent post.) In the worst case scenario, a domino effect would ensue, whereby industry-heavy, illiberal countries would refrain from ratifying Paris. And if they choose to ratify it, they might do so only for PR and diplomatic reasons, with no intention of enforcing it. My colleague Tiran’s forthcoming post nuances my apprehensions from a microeconomic perspective, but the shadow of America’s Denier-in-Chief is destined to loom over any hope of sunny ways.

Just a few months ago, the Paris Agreement seemed poised to succeed where Kyoto never did. However, by electing Trump, Americans may have decided otherwise. We must win them back.

Facts: Irrelevant & Unimaginative

The big lesson of 2016 is that the masses do not seem to care anymore if a narrative, yet alone a simple statement, is true or not. In Gorgias, Plato illustrated the public’s vulnerability to rhetoric by contrasting the performances of a physician and a Sophist posing as one. The assembly, Plato’s Gorgias argued, would believe the Sophist and banish the doctor, despite the physician’s factual pretension. In the post-truth era, the assembly would simply not care whether the Sophist’s speech has any semblance of rationality, as long as they “feel” his assurances should be true. Michael Gove, former Justice Secretary and prominent Brexiteer, rightly said that “people… have had enough of experts”.

In 2016 experts failed the rhetoric test. In both Britain and America, Remainers and Democrats made experts catwalk all over the media to preach their sides’ virtues. Their opponents, by contrast, drew a narrative that appealed to instincts instead of reason. Not only did they tap into people’s emotions, they also performed their narrative, thereby further convincing people of their message’s authenticity. They did not pretend to be experts, and they did not try to address experts’ criticism. They knew veracity has become irrelevant in the public sphere, and that the public debate has become a show to play.

Acknowledging experts’ failures, Stephen Hawking warned them to steer clear of their ivory towers in order to regain the masses’ trust. But humility is not enough. Activists and policymakers should learn that projects, however sound they are, would crumble if they lack tangible popular support. Sound, but controversial policy is unachievable without a concerted, sensational narrative that captures both hearts and brains across the ideological spectrum.
Rhetoric over Substance

So we should engage in the rhetorical game, too. Documentaries, open editorials and letters, and TV appearances are often dry and fact-heavy and, anyway, they are inadequate mediums to shift peoples’ opinions, as people increasingly get their news from sources within their echo chamber-like ideological bubble on social media. Indeed, in spite of the green agenda’s long and seemingly successful campaign to shift public opinion, still over half the American population deems climate change not worth a single penny.

Weapon of Mass Persuasion. Pexels, Pixabay

Weapon of Mass Persuasion.
Pexels, Pixabay

That is why the green agenda should concentrate its efforts on finding new ways to communicate its message. As for means to reach the masses, green organisations should cozy up with Hollywood to produce green blockbuster films (such as the The Day After Tomorrow and The Road) instead of documentaries. To effect a positive impression, they should, for instance, resort to ad campaigns instead of protesting or trade well-researched articles for speech-like, sensational opinion pieces.

Compare, for instance, this article by Al Gore and this one by PM Justin Trudeau. Both articles appeared in publications destined to the “elite”. While the articles have different topics, it is interesting to note each author’s tone. Trudeau is very light on facts, and he founds his position on universal values. Al Gore, instead, builds a step-by-step rational argument. On the one hand, had Al Gore published his article in today’s cynical world, he would have been offhandedly dismissed as an intellectual talking down to commoners. On the other hand, while Trudeau is often criticised by intellectuals and experts as a lightweight, he certainly connects with the masses, and his message is generally well received.

To ensure the green agenda does move forth with sufficient popular support, we must learn from Trudeau: in the public debate we must overlook details to focus on rhetorical effect, and trade policy for story. However, subtlety is key. As 2016 has shown, even legitimate fear-mongering backfires.

See also:

“Failings of the Global North” by Guest writer Elizabeth May, MP, on our blog

“The post-truth world: Yes, I’d lie to you” by The Economist

“This year was an environmental wake-up call: U.S. green movement needs a new message” by Nives Dolsak and Aseem Prakash, in The Conversation

“From Deliciously Ella to Donald Trump: the evolution of ‘truth’” by Hadley Freeman, in The Guardian

A Step in the “Rights” Direction

Julia Redmond is a first year law student at McGill and an associate managing editor with the McGill International Journal of Sustainable Development Law. She holds a Bachelor of Arts and Science in interdisciplinary studies from McMaster University, with a focus in environmental science and policy.

Right Livelihood Award 2009-award ceremony

Right Livelihood Award 2009-award ceremony

Some days it really feels like a grim time to be living on Earth. Just as we get startling news about abnormally warm weather in the Arctic, we’re also subject to hearing a revived narrative of climate change denial in the US and its potential policy impacts. World climate leaders, who recently convened at COP22 in Marrakesh, are worried.

Discouraging as they may be, these circumstances have pushed people to find creative channels to ensure a healthy environment. Ensuring a clean environment as a basic human right is not a new idea, but it is one that’s gaining more mainstream attention.

Many countries around the world recognize a constitutional right to a clean environment. One notable holdout? Canada.

This month, Canada’s grandfather of environmental activism, David Suzuki, declared that the “last great fight” of his life would be to ensure constitutional status for environmental rights by including them in the Charter. Suzuki has criticized the Harper government’s willingness—and ability—to overturn progressive legislation that was designed to protect the environment. A Charter right, he believes, would have prevented this kind of action, and could ensure appropriate actions by governments in future.

He’s certainly not alone in this fight. Non-governmental organizations, like Ecojustice, are committed to improving the legal landscape for environmental rights in our country. Several provincial and territorial governments, including Ontario and Quebec, have already legislated to guarantee environmental rights.

But such a guarantee in the Charter would have a far broader impact. What would it mean for law and policy if the environment was understood in “life, liberty, and security of person”? This would undoubtedly be a great asset to aboriginal communities, for example, who are disproportionately affected by environmental damages and changes in the south and Canada’s North. It could radically change our energy and natural resource policies; one would expect a different discussion surrounding new oil or natural gas projects given this kind of legal guarantee.

There’s certainly hope that this could have an impact. Yet, even without a constitutional guarantee, the results of activism for environmental rights have begun to pan out in court around the world.

Museumplein in Amsterdam. “A 2014 Dutch court ruling forced the government to set a stricter target for emissions reduction.” Jos van Zetten, Flickr Commons

Museumplein in Amsterdam. “A 2014 Dutch court ruling forced the government to set a stricter target for emissions reduction.”
Jos van Zetten, Flickr Commons

Last year, the Netherlands became the first country with a successful climate liability suit. Under human rights and tort law, the NGO Urgenda got the court to order the Dutch government to cut its emissions by at least 25 percent in five years, a target well beyond what they had committed to.

The significance of this ruling is not just political, but legal; Urgenda v. The State of the Netherlands was the first successful tort case about climate change. While cases have been brought against private companies in the US for their climate harms, they were dismissed because managing climate and emissions was said to be a political problem. The particular focus here on the government knowingly exposing its citizens to foreseeable harm is one that can translate to other jurisdictions.

Meanwhile in the United States, young people have taken up the mission of fighting for their rights. A group of youth in Oregon recently won the right to sue the US federal government for their inaction on climate change.

The ruling in Juliana et al. v. United States came from U.S. District Judge Ann Aiken, who rejected the federal government’s calls to dismiss the case. The government argued that the case should be dropped on the grounds that the potential implications were too broad for a federal court, and that the doctrine of public trust applied only to states. Not only did they argue this duty to protect natural resources for future generations didn’t exist federally, they claimed the atmosphere was not a public asset.

Finally, the administration, like similar defendants around the world, asserted that a ruling couldn’t ensure the plaintiffs’ claims could be fulfilled because climate change is perpetuated by various factors.The plaintiffs, however, won on the claim that the administration had violated their rights to life, liberty, and property, as enshrined in the Constitution.

Another case in the Pacific Northwest has followed a similar path. In Seattle, a group of children are asking a judge to find Washington state in contempt for the harm it will cause by not acting enough to reduce emissions. They assert that the state’s clean air legislation is insufficient and fails to protect them and future generations. The judge has yet to rule, but the extent of press coverage is certainly a win in and of itself.

So maybe it’s not all doom and gloom. But there certainly is a lot of progress to be made in law before the right to a healthy environment is properly protected

What Trump’s Election Means for the Paris Agreement

by Laurent Crépeau

Now that Donald Trump is President-Elect of the United States, energy and environmental policy could take a drastically different turn in the land of the free and the home of the brave. Trump has denied the existence of man-made climate change and has stated that if elected, he would either withdraw from the Paris Agreement or “renegotiate” it. This has serious implications. The accord, which the United States ratified in early September, constitutes a never-before seen diplomatic achievement of states taking concrete measures to fight climate change. With Trump heading the United States for the next four years, and with a Republican-controlled Congress in addition to this, it is relevant to ponder what this means for the Paris Agreement going forward.

Attribution: Republican Presidential Candidate Donald J. Trump, during the final day of the Republican National Convention in Cleveland, Thursday, July 21, 2016. (AP Photo/J. Scott Applewhite)

Attribution: Republican Presidential Candidate Donald J. Trump, during the final day of the Republican National Convention in Cleveland, Thursday, July 21, 2016. (AP Photo/J. Scott Applewhite)

First, it might reassure some to know that renegotiation by itself would already be complicated. Normally, renegotiating an international agreement demands that the parties come together and agree on the new terms of a treaty. In this case, 195 countries have signed the Paris Agreement. Consent to be bound by the new set of obligations would be required from each of them in order for a new treaty to come into force.

Seeing how complicated it might be to renegotiate the deal, a more probable alternative would be withdrawal from the Paris Agreement. The procedure for this is set out in Article 28 of the Agreement:

“1. At any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement by giving written notification to the Depositary.
2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.
3. Any Party that withdraws from the Convention shall be considered as also having withdrawn from this Agreement.”

Given that the United States has just ratified the Paris Agreement, it would take almost four years before it could shed its obligations. It would remain bound until at least September 2020. By that time, it is hard to predict the importance an issue such as environmental protection might take in American politics. Further, withdrawing so close to the next presidential election might be politically costly and therefore would require apt political calculus before undertaking.

Negotiators gather for COP 21 in Paris, December 2015. Image courtesy of the UNFCCC, via Flickr.

Negotiators gather for COP 21 in Paris, December 2015. Image courtesy of the UNFCCC, via Flickr.

A quicker approach exists, but its consequences are greater: withdrawing from the United Nations Framework Convention on Climate Change (hereafter, “UNFCCC”) signed in 1992, which encompasses subsequent international agreements on climate change, including the Paris Agreement. The withdrawal procedure in the UNFCCC mirrors the one in the Paris Agreement. As such, it would take only a year to withdraw from it. The consequences, however, would be much more significant. Withdrawing from the UNFCCC would entail withdrawal from any protocol or convention signed under it. It would take the United States twenty-five years back in its efforts to reduce greenhouse gas emissions.

As one of the largest producers of greenhouse gases, the United States has a major role to play in any international climate convention. It is all the more important that it upholds its commitments in international climate agreements, as other world powers’ commitment is contingent on the United States’. Trump’s unreliability with regards to such agreements can negatively affect his country’s credibility and impede further cooperation with other world powers.

MJSDL at COP22: Can the Paris Agreement endure a Trump Presidency?

Allen Brett Campeau is a law student at McGill University and an Associate Editor with the McGill International Journal of Sustainable Development Law and Policy. He studied the impacts of climate change on Arctic terrestrial ecosystems during his BSc and MSc degrees in Geography and Biology. You can connect with him on Twitter here: @ABCampeau.

The world met in Marrakech, Morocco, earlier this November to formalize and strengthen international cooperation in the fight against climate change. Members of government, industry, and civil society gathered for COP22, the 22nd Conference of the Parties to the UNFCCC, and a plethora of side events, including an important meeting of the climate law community: Climate Law and Governance Day. This year’s conference did not attract the same global attention as COP21 in Paris, but its work was perhaps even more important: How can we turn the ideals and aspirations of the Paris Agreement into concrete climate action? The agreement’s early entry into force, just days before the conference, was cause for celebration, but this news was quickly eclipsed by the result of the American presidential election on November 8th. The surprise victory of climate-skeptic Donald Trump cast doubt on the viability of the entire UN climate process. We offer some takeaways from Climate Law and Governance Day and discuss how the Paris Agreement might endure a Trump presidency.

Climate Law and Governance Day was organized by the Centre for International Sustainable Development Law (CISDL) and its partners, including the McGill Journal of Sustainable Development Law (MJSDL). We thank the CISDL for welcoming the MJSDL’s COP22 delegates in Marrakech, and for inviting the MJSDL to co-host this year’s essay contest on climate law and governance and the awards ceremony during Climate Law and Governance Day.

The mood in Marrakech in the lead-up to the conference was likely one of cautious optimism. The Paris Agreement entered into force on November 4th, having been ratified by the requisite 55 Parties accounting for over 55% of global greenhouse gas emissions. This milestone was reached earlier than expected, giving greater urgency to the matter of fleshing out the agreement’s rules and procedures. However, this was, as far as problems go, a pretty good one to have. Conference-goers proceeded about their business, but no doubt with an eye on the American presidential election, since a Trump win could potentially raise many more significant obstacles to international cooperation. The outcome was surprising and disappointing to many.

Trump

And so it was that COP22 fell under the pall of Trump’s shocking election victory. It was in this uncertain atmosphere that Climate Law and Governance Day began on November 11th. Legal scholars and students from around the world had travelled to Université Privée de Marrakech to discuss the finer details of the Paris climate framework, but there was no escaping the elephant in the room. Could a Trump presidency undo the progress of Paris?

The first plenary talk of the day was given by Mr. James Cameron (Chair, Overseas Development Institute / Senior Counsel, COP22 Presidency). He made plain his belief that Paris was the way forward and that the work ahead in Marrakech was crucial to its success. Although initially a strong supporter of the top-down approach of the Kyoto Protocol, which imposed mandatory emission cuts, he has since embraced the flexible, bottom-up approach of the Paris Agreement. It has garnered strong international support from a broad coalition of actors and appears to have rectified the problems of earlier UN climate efforts. Now it is just a matter of applying it and, as Mr. Cameron eloquently said, “we [won’t] know how much power we have until we use it.” Indeed, there are reasons to be optimistic that the Paris Agreement will succeed, even with Trump in the White House.

The Paris Agreement represents an end to the deadlock that had previously stifled international action on climate change. Its reliance on voluntary emission reduction targets, the so-called Nationally Determined Contributions (NDCs), marks a significant departure from the binding targets of the Kyoto Protocol. While Kyoto failed to bring the entire global community on board, the Paris Agreement has already earned commitments from all major emitters, including developed and developing countries. As of this writing, 103 Parties have submitted their first NDCs. Although voluntary in nature, these commitments are supported by mandatory transparency and reporting instruments, which allow for the international scrutiny of domestic emission reduction efforts. Moral suasion has thus replaced the hard targets and penalties of Kyoto. This change, coupled with a stronger commitment to financial support for developing countries and an embrace of NGO and industry actors, has allowed Paris to become a truly global agreement. However, non-state actors are increasingly taking the lead in climate action, allowing the Paris Agreement to transcend the purely state-based character of previous UN climate efforts. Companies are increasingly investing in green technologies and the courts are showing new willingness to find liability for climate change damages. It would therefore appear that climate action is becoming inevitable – even profitable – for countries to pursue.

COP22

President-elect Trump, the businessman, may well appreciate the financial benefits of climate action. He also likely appreciates the security implications of failing to avoid dangerous climate warming. Trump has also shown a willingness to heed expert advice and international opinion. Indeed, some recent conciliatory statements suggest that he will abandon his more extreme election promises, including a promise to “cancel” the Paris Agreement. If, however, he does not, and he surrounds himself with climate change deniers, then the global community will need to protest and cajole his administration until it behaves reasonably. Most of the world is united in its conviction to uphold and implement the Paris Agreement, and one holdout – however powerful – will not sway it otherwise. On the last day of COP22, Parties released the Marrakech Action Proclamation, declaring that “this momentum is irreversible.” Trump is not mentioned by name, but the message was clear.

Climate Law and Governance Day was a prime example of how politicians, scientists, activists, and jurists have all rallied behind the Paris process. Undoubtedly there was a sense of the great task ahead of us, but there was also optimism and excitement. The Paris Agreement will likely succeed if domestic legislators work to implement sound climate policies and if lawyers continue to press for climate justice. Honorable Cecilia Ogwal (Member of Parliament and Delegate of the Ugandan Delegation to COP22) put it succinctly in her passionate call for climate justice and domestic action at the day’s event: “I’m on fire!” Despite the apparent setback of Trump’s election, thousands of people left Marrakech with that same passion to fight for concrete climate action – and that is an inspiring thought.

Beyond Carbon Pricing

Patrick Kanopoulos 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.

With the recent unveiling of the Liberal government’s pan-Canadian carbon pricing strategy, and the continuing implementation of cap-and-trade programs in Quebec and Ontario, a price on carbon is a hotly debated issue in Canadian politics. But a price on carbon, modest or significant, will not alone bring about the changes to the Canadian energy and transportation market that will result in net zero emissions of greenhouse gasses (GHGs). Systematic and structural changes are required to the Canadian energy system and broader economy to facilitate a rapid transition to a meaningful reduction in GHG emissions. I argue that the full resources of the state should be mobilized to solve the urgent challenge of climate change.

Why is carbon pricing alone insufficient?

Carbon pricing (or more accurately, greenhouse gas pricing), places a price on the emission of GHGs. Under the federal government’s plan, provinces will be required to do this using one of two methods: through a tax on emissions or through a cap-and-trade program. Under cap-and-trade systems, provinces would put an upper limit on carbon emissions for specific types of emitters (the “cap”), and industries emitting below the cap will then be able to sell their unused carbon allocation to emitters who are emitting above the limit (the “trade”). In brief, it is a market-based solution to incentivizing energy efficiency in energy intensive industries, and innovation in industries where emission of GHGs is part of the industrial or energy producing process. Whereas a cap-and-trade system implies tradeable ‘credits’, the carbon tax functions exactly as it sounds – a tax for each tonne of carbon (or GHG equivalent) released into the atmosphere.

Both approaches incentivise energy efficiency on the one hand (finding savings on energy) and innovation on the other (sequestering or eliminating GHG production as part of an industrial or energy generating process). These changes, however, are implemented by market agents who are capable of altering their own behaviour, but not the fundamental infrastructure and processes that underlie our current carbon-based energy, transportation, and industrial systems. For instance, a cost incentive might induce a business to install heat pumps and better insulation to reduce its carbon emission from methane as a source of heat, but it will not eliminate the use of methane as a heating source altogether. In other words, the changes are incremental. On the innovation side, a cost incentive might induce a cement manufacturer to embrace a carbon sequestration technology to eliminate the heavy emissions that result from its manufacturing process. However, this presupposes that such an effective system already exists. It is unlikely – and difficult – for the plant operator to find the optimal approach to sequestering carbon, and to do so in such a way that its long term containment is ensured. Therefore this technological barrier, which requires prohibitively high capital investment to overcome, places a limitation on how the cement producer can act, with or without the imposition of a carbon price.

Systematic Change
The cement producer above is one of many examples where an individual market agent may find it more reasonable to accept the price of emitting carbon than to undertake a massive technological research project at their own capital expenditure, with no certainty of success (let alone an attractive return on their investment). A large energy producer, aiming to transition from carbon-based energy generation to one of renewable energy might find an insurmountable technical challenge in meeting demand under the inherent variability of renewable energy. Absent an economically and technically feasible energy storage solution, the generator is unlikely to undertake an uncertain investment in research for an energy storage system on its own.

While a properly designed cap-and-trade system might make environmentally friendly decisions more attractive, they will generally do so in a marginal, or an incremental sense. It is the responsibility of the state to undertake the massive investment in science and technology which will add to the certainty of employing new technology in both the public and private sectors. Investment in this type of research, while present, is lacking both in terms of proportion and urgency.

An effective research program would have to be far greater, both in terms of finances allocated and scientific breadth, than what the Canadian government is currently allocating to the problem of sustainable energy. While the Europeans have made greater efforts towards large scale research projects, it would be imprudent to assume that European solutions to sustainable energy will be universally deployable in Canadian settings. The geography, climate, and urban fabric of Canada and its largest cities are substantially different from those of our European counterparts. Remote arctic settlements might be amenable to enhanced geothermal energy production, but the weaker thermal gradients in southern Canada may likely render this technology inefficient. Where the Western provinces might be able to profit from their geographic terrain in storing water at higher altitudes for energy storage, similar methods are not possible across the rest of Canada, and other technologies will have to be developed. Tidal energy generation might be effective on the East Coast, but nowhere else. In other words, the diversity of Canada’s climate and geography demand equally diverse approaches to energy production, storage, and transmission. Nationally and provincially funded research projects should take this level of diversity into account to design research goals around these various constraints. Where appropriate, the government should partner with industry to develop and test new technology, while simultaneously providing incentives and insurance for industrial partners who chose to participate in the deployment of new and state-of-the-art technology.

While carbon taxation and cap-and-trade programs may provide incentives to companies to make welcome improvements to their emission heavy processes, it would be disingenuous to presume that these schemes alone will produce the desired emissions reductions to which Canada has committed. Now that the federal government has left it to each province to design and implement its own carbon pricing system, it is incumbent upon the federal government to develop a national energy research program which will genuinely address Canada’s energy needs in a post-carbon energy market. It is not at all clear what such a market will look like, and there is great urgency in addressing this task and creating a national vision. The Manhattan Project and the American Space Program are two examples where the full resources of the state were mobilized to solve urgent and difficult scientific challenges, and did so successfully. The existential threat of climate change provides an arguably more important motive than either of these two projects. The present climate crisis is one situation which demands that Canada, along with its international partners, deploy a similar magnitude of resources to address the strategic and moral imperatives of facing climate change directly.

By U.S. Army Corps of Engineers from USA - Hartwell Dam Spillway Release - July 9, 2013 Uploaded by Albert Herring, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=29552193

By U.S. Army Corps of Engineers from USA – Hartwell Dam Spillway Release – July 9, 2013 Uploaded by Albert Herring, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=29552193

By Kim Hansen - Middelgrunden offshore wind farm (40 MW) observed in Øresund - 1 July 2009, https://commons.wikimedia.org/wiki/File:Middelgrunden_wind_farm_2009-07-01_edit_filtered.jpg#file

By Kim Hansen – Middelgrunden offshore wind farm (40 MW) observed in Øresund – 1 July 2009, https://commons.wikimedia.org/wiki/File:Middelgrunden_wind_farm_2009-07-01_edit_filtered.jpg#file

A Lifetime of Higher Costs: Trudeau Carbon Plan Good for Nobody but Lawyers

Ghaith Hannibal El-Mohtar is a 3L student at McGill’s Faculty of Law, and Editor-in-Chief of the MJSDL. An earlier draft of this post appeared in the Quid Novi, the student paper at McGill’s Faculty of Law.

Attribution: Kelly DeLay, Cloud over hay.

Attribution: Kelly DeLay, Cloud over hay.

An effective carbon pricing regime should be simple, predictable, and clear. It is unfortunate, then, that the government’s plan for Canadian carbon pricing will be so needlessly complex as to cause a lifetime of unnecessary costs for consumers and businesses.

Trudeau will allow the provinces to each create a local emissions-pricing regime rather than one national plan under the federal government.

This will bring the serious problem of distinct carbon pricing standards and markets across the country. Some differences will be so drastic that even doing business between provinces will be as onerous as dealing with foreign carbon regimes.

For example Ontario and Quebec joined the same Western Climate Initiative cap-and-trade market, yet their reporting requirements, emissions audit and penalty regimes are different. Ontario counts emissions from imported energy to determine who is a “Mandatory Participant” under s. 9(3) of Ontario’s An Act Respecting Greenhouse Gas, while Quebec makes an exception for partner jurisdictions under Quebec’s Environmental Quality Act, specifically its Regulation respecting a cap-and-trade system for greenhouse gas emission allowances s. 2(1). The maximum non-compliance penalty in Ontario is $10 million for corporations and 5 years in prison for individuals, whereas Quebec’s maximum sanction is $3 million and 18 months (at 48, 75(1)–(3) respectively).

Other differences in requirements, categories and definitions and even systems abound. British Columbia and Alberta do not use cap-and-trade but rather a carbon tax ($30/ton in B.C., $10 in Alberta). A business with uniform emissions across Canada would as a result need to budget in advance for carbon credits in central Canada while annually retaining accounting staff in western Canada to report the same pollution.

Permitting dissimilar regimes also multiplies litigation. Companies on the margins will sue for exemption as taxed-emitters where it is profitable to do so. Instead of a singular federal regime where each individual issue will end in a single line of jurisprudence for Canada as a whole, the Supreme Court will have to troubleshoot every province’s problems one at a time because of provincial peculiarities in rates, status-categories and in pricing mechanisms.

With up to ten different regimes, this will lead to years of inconclusive and possibly contradictory judgments from different provincial courts of appeal—not counting hanging inconsistencies within provinces—as to which companies pay under each regime and which don’t.

This assumes the best case scenario where all provinces comply. If even one province refuses to implement carbon pricing, as Saskatchewan and Nova Scotia appear likely to do, the federal government will need to step in and tax the province unilaterally. This means even a regional business like Safeway would need to deal with red tape from Victoria, Edmonton, and Regina or even Ottawa just to comply with Canada’s carbon pricing models.

At its most extreme, we would have unharmonized cap-and-trade in central Canada, differing carbon taxes in western Canada, and a temporary federal system to patch the holes in between. By then Canada will be well on its way to having perhaps the most byzantine carbon pricing model among developed Parties to the Paris Agreement, while domestic and foreign investors wonder what kind of country it is they are doing business with.

Attribution: Thomas Hawk, Lifetime.

Attribution: Thomas Hawk, Lifetime.

For context, the federal government under section 91(3) of The Constitution Act 1867 has a clear power of unlimited taxation. Unlike healthcare or education, implementing a carbon pricing plan in Canada requires zero provincial collaboration. None of this confusion is necessary.

The government bills its leadership from behind as an olive branch of cooperative federalism. In reality, it is a dereliction of leadership that will cost businesses and taxpayers extra money, allow lawyers to pad their pockets, and result in needlessly painful carbon pricing that is more vulnerable to climate reactionaries and populist backlash.

After a decade of fighting for carbon pricing, the last thing the Liberals—and this country—need is an ineffective carbon plan that gets repealed by the next government to avoid decades of unnecessary, unpopular costs. Trudeau needs to choose and commit to one carbon pricing regime for Canada before it’s too late, or we’ll all be paying for it for the many decades we are sure to spend battling climate change. All except lawyers, that is.

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