Monday, April 16, 2012

Ontario Bar Association Conference Centre 20 Toronto Street, Toronto 5:30pm to 8:00pm

Expert Panel Discussion: Cheryl Goldhart, Goldhart & Associates, Victoria Starr, Starr Family Law, Michelle L. Wassenaar, Johnston Wassenaar LLP, and Laura Zizzo, Zizzo Allan Climate Law LLP.

Using Technology In Your Practice: presented by Lisa Lui, LexisNexis Canada Inc. with a focus on the Law Society of Upper Canada’s Practice Management Guidelines.

Registration Required For information and registration contact WLAO at

wlao@cogeco.ca, 416-410-7267, or visit www.wlao.on.ca. This program is accredited by the Law Society for 2.5 Professionalism Hours and 2.5 New Member CPD Hours.

WLAO Hanging Hat Series Program 2 OR Ad for April 16 event

The budget aims to create a “one project, one review” system for natural resource development.  To achieve this, the Canadian Environmental Assessment Act (CEAA) review process will be condensed to limit the panel review for major projects to 24 months and standard environmental assessments to 12 months.  Currently, certain major, complex projects can take a number of years to be approved under the CEAA.  This condensed timeline will also apply retroactively to the 11 projects that are currently undergoing the review process: three of these, Enbridge’s Northern Gateway Pipeline, a new power plant in Darlington, ON and natural gas wells in Alberta, have already surpassed the 24 month mark.  The federal government also wants to end environmental reviews at the federal level and instead, pass this responsibility to the provinces by “…recognizing provincial EA’s as a substitute for or equivalent to federal EA’s” and by “…transferring decision-making for some permits between federal departments and to other jurisdictions”.  Environmental Assessments are a crucial aspect of Canadian environmental law, time will tell how the shorter time frames and downloading to provinces will impact decision-making, but for complex projects it may be a challenge to adequately gather and review information in the way the budget amendments envision.

The budget also eliminates the NRTEE for an annual savings of $5.2 million.  The NRTEE, established in the 1990’s, under Brian Mulroney is a key federal advisory panel on business and environmental issues that produced numerous reports about business, government policy and climate change.   Cuts in spending were also made to Environment Canada (6% reduction) and Parks Canada (4% reduction).

Despite these cuts, the federal government has provided the Canada Revenue Agency with an additional $8 million over two years to fund “education and compliance activities with respect to political activities by charities”.  Charities can currently devote up to 10% of their total resources to political advocacy as long as the activity is non-partisan and part of the charity’s overall purpose. This new funding will go towards politicing this rule. It also aims to “improve transparency by requiring charities to provide more information on their political activities, including the extent to which these are funded by foreign sources.”  There is no law prohibiting foreign investment in Canadian charities, the government is simply requiring charities to report this information, creating additional administrative obligations. Simply put, the CRA will receive additional budget and new auditing powers to determine how much time/money charities spend on political activities and how much money they receive from foreign donations.

The budget also provides $2 million in funding to encourage clean energy generation and $50 million over two years in resources to support its legal obligation to protect species at risk.

Their report, titled “Time to Act: The Opportunity to Simultaneously Mitigate Air Pollution and Climate Change” summarizes the linkages between air pollution and climate change, and emphasizes that a multidisciplinary approach is essential if society wants to slow the rate of climate change and protect human health, food and water security, and ecosystems.

It is a complex problem, because some air pollutants such as sulfur dioxide (SO₂) have a cooling effect on climate. There are already actions currently taking place to control this pollutant (which is good for protecting the environment and human health), but without simultaneous action to control GHGs, such as long-lived carbon dioxide (CO₂), we will end up exacerbating global warming by removing only the cooling gases. [2]

Some measures to reduce GHGs include switching technologies or fuels. These changes may increase or decrease air pollutants depending on which are chosen. Therefore, by considering both air quality and climate change when we mitigate GHG emissions, we can have win-win solutions that benefit both environmental problems. [2]

IGAC recognizes that the solutions to air quality and climate change involve policies from all levels of government, and that there are many social considerations to into account (e.g., economics). However, policy makers need a sound scientific foundation to play an integral role in developing those solutions.

IGAC and IGBP’s next step will be to release a Strategic Plan for an interdisciplinary programme to address air pollution and climate change in the Autumn. Their plan will focus on some key areas, such as urban development and agriculture where an interdisciplinary approach will be very beneficial.

References

[1] http://www.igacproject.org/node/12

[2] IGBP/IGAC (2012). Time To Act: The Opportunity to Simultaneously Mitigate Air Pollution and Climate Change. International Geosphere-Biosphere Programme (IGBP) and International Global Atmospheric Chemistry (IGAC) Project, 6pp.

blog post by Cyndi Whaley

Though Canadian firms have a role in mitigating the speed and scale of climate change, they also need to adapt to the inevitable risks and impacts posed by climate change on their infrastructure assets, supply chains, operations, reputation and market share.  The NRT has generated a roadmap for firms to adapt to a changing climate that requires:

• An understanding of how climate shifts will impact a firm;
• Assessing risks and opportunities, evaluating and implementing options to manage them;
• Integrating climate resilience across the enterprise.

NRT Dashboard found at page 13 of report

The thirteen case studies presented in the report, including Coca-Cola Canada, Rio Tinto Alcan, Entergy and BC Hydro, illustrate the different phases or steps within a phase of the roadmap.  They represent a range of industry sectors and though most of the firms included have made planned and deliberate action to adapt, there are a few examples of ‘unconscious’ adaptation.

Ontario faces a number of risks associated with extreme weather events.  The province has already experienced numerous storms that have resulted in significant costs for governments and insurance providers , including:

• August 19, 2005 wind, rain and flash flood event in Southern Ontario – resulting in $600m worth of damage
• June 5&6, 2010 wind and thunderstorm event in Leamington – resulting in $120m worth of damage

In addition to the monetary loss associate with extreme weather, electrical service has been compromised, resulting in service disruptions.  For example, 120,000 people lost service in a November 2005 storm and 150,000 people lost service in an August 2006 storm.

August 19th, 2005 rain and flood event, North York (Courtesy of Google Image)

As the climate changes, Ontario might experience increased intense rainfall events as well as more frequent heat waves and smog episodes.  By the 2050’s, heat related mortality could more than double within southern and central Ontario while the water level of the Great Lakes is expected to decrease, reducing hydroelectricity output by more than 1100 megawatts. To adapt to these risks, Ontario could design better structures and improve city infrastructure to address demands for summertime cooling and generate excess electricity to offset the loss in hydroelectric power. Local-level data is important in adapting public operations and providing services such as heat appropriate public services for the elderly.  The Toronto Environment Office has been working to obtain this local data for Toronto.

Though climate change poses a risk to the electricity sector, few utility providers are taking action.  A Carbon Disclosure Project survey found that though the majority of global electric utilities acknowledged exposure to climate change, only 27% indicate a ‘quantified’ analysis had been undertaken and only 6% provided evidence that climate change has been integrated into their internal corporate governance procedures. BC Hydro is one utility that has taken adaptation action within their operations, which include changes to energy and peak load patterns, relocating facilities, developing alternative water storage for nuclear facilities. Electrical utilities in Ontario could take adaptation action by:

• Conducting detailed weather-specific vulnerability assessments in each area
• Use modeling of risk scenarios to determine the best response
• Gaining a better understanding of climate related threats to the security of the system and how adaptive action will benefit

Additionally, the electricity sector would benefit from clear direction and political commitment to develop and implement climate-adapted standards.

Prepared by ZACL intern Stephanie Vanthof

1. Identify possible offset protocols – a protocol must be nominated by one of the WCI jurisdictions. The jurisdiction will establish a list of candidate protocols and make that list known to stakeholders.
2. Evaluate those protocols by expert task teams – a task team is assembled from each WCI partner jurisdiction with additional technical advice from expert advisors. Then methods for GHG quantification, reduction and monitoring are determined.
3. Get public consultation – if the prior step results in the protocol being recommended, then the protocol is posted on the WCI website, and a webinar takes place followed by 30 days in which people can submit comments on the protocol.
4. Recommend the protocol for adoption by the WCI jurisdictions – WCI partners decide whether to recommend the protocol or not. If recommended, it is available for each WCI jurisdiction to adopt following its own procedures (which may involve revising it).

This new report is designed to provided clear and robust step-by-step instructions which will allow for a more efficient offset system and encourage consistency across WCI partner jurisdictions. It will help ensure an adequate supply of low-cost, high-quality offsets for the WCI jurisdictions [1].

Background

The Western Climate Initiative is a collaboration of independent jurisdictions in North America that are working together to tackle climate change at the regional level. Partner jurisdictions have committed to implementing a cap and trade system across the region. Cap and trade is a market-based system for managing and reducing industrial greenhouse gas (GHG) emissions. The government sets a yearly cap on the tonnage of GHG emissions for each industrial facility, and those facilities that exceed their cap, must buy more allowances in the market. Those who do not exceed the cap, can bank their allowances for later use, or sell them on the market. Cap and trade is a effective and efficient way to reduce overall emissions, while rewarding greener industries. The cap and trade system can also include offsets. And offset in a cap and trade system is a reduction or removal of one ton of carbon dioxide (or CO2 equivalent) from a source outside the regulated sector (i.e. a source not subject to an emissions cap). The reduction or removal must meet certain criteria, such as the offset must be real, additional, permanent, and verifiable [2].

Ontario is committed to participating in a cap and trade system through its partnership with the Western Climate Initiative (WCI). There are currently four Canadian provinces (British Columbia, Manitoba, Ontario, and Quebec), and seven U.S. states (Arizona, California, New Mexico, Oregon, Washington, Utah, and Montana) that are considered partner jurisdictions in the WCI [3]. Currently California and Quebec are the jurisdictions with regulations in place to implement a cap and trade system. British Columbia and Ontario are following close behind. The goal of the WCI cap and trade program is to reduce GHG emissions to 15% below 2005 levels by 2020.

References:

[1] www.westernclimateinitiative.org/document-archives/Offsets-Committee-Documents/Offset-Protocol-Review-and-Recommendation-Process

[2] www.westernclimateinitiative.org/component/remository/Offsets-Committee-Documents/Offsets-System-Essential-Elements-Final-Recommendations

[3] www.ene.gov.on.ca/environment/en/category/climate_change/STDPROD_078899.html

Blog post by Cynthia Whaley

The 17^th Conference of the Parties (COP17) to the United Nations Framework on Climate Change sought to advance the implementation of the Kyoto Protocol, the Bali Action Plan, agreed to at COP13 in 2007 and the Cancun Agreements, reached at COP16 in 2010.  Some countries, including Canada, signalled disenchantment with the Kyoto Protocol since it does not require developing countries, even large emitters such as China and India, to reduce GHG emissions. Kyoto was to be a first step to show leadership by developed countries with greater historical responsibility and therefore Canada’s objections are seen as disingenuous by some.

In Durban, European negotiators wanted to create a new, legally binding treaty but language they proposed had to be softened to appease certain countries. The Durban Platform, which will be negotiated by 2015, will theoretically bind all 194 countries. The stabilization of CO2 pollution in developing countries could be essential in delaying climate change so this is a welcomed development. However, it is still unclear how much “legal force” this agreement will have or the emission goals that will be set.  Though some are referring to this as a “landmark deal”, others feel that not enough has been done.  Bill Hare, Director at Climate Action Tracker, states that “There are still no new pledges on the table and the process agreed in Durban towards raising the ambition and increasing emission reductions is uncertain in its outcome”.  The International Union for Conservation of Nature has stated that the target date of 2020 for a complete climate accord is too far away and that more urgent action is needed.

Apart from this new climate change platform, aspects of the Cancun Agreement were also strengthened, including rules for a new climate fund, the formation of an international network of technology centers, a scheme to avoid deforestation and means to increase the transparency of countries involved in reducing emissions.  Management of the Green Climate Fund, which will scale up over the next 8 years and provide $100 billion US annually to help developing countries adapt to climate change, was high on the conference agenda and further details of the fund were fleshed out, although more work is needed to fully operationalize the fund.

Canada’s role within these talks has been questioned, with the Pembina Institute stating, “Canada is coming into these talks in a very weak position and is not poised to contribute much in the way of positive solutions”.  At the Durban Conference, Canada argued that the Kyoto Protocol is not where the solution lies and had stated that it would not renew their commitment to Kyoto when it expires next year.  Instead, Canada has set a target of reducing greenhouse gas emissions by 17% over 2005 levels by 2020 and the Harper government has stated that it wants to keep targets in line with the US.  Based upon the outcome of the Durban Conference, the Minister of Environment Peter Kent is pleased with the platform and is optimistic that a new climate treaty can be reached by 2015. Even though the Platform accounted for a second commitment period under Kyoto, Canada has consistently stated it was not going to be party to a future commitment period and captured further global-interest hours upon returning from the Durban Conference, when Kent formally announced Canada’s withdrawal from the Kyoto Protocol. The Canadian Government stated that complying with the obligation to reduce emissions by 6% from 1990 levels would require billions of dollars of spending, something the Government could not support in the current economic circumstances.

We must end on a somber note: Kyoto is the first international agreement that the Government of Canada has officially withdrawn from – ever. It is unfortunate that our Government could not prioritize this agreement and find a way to continue to support it, and comply. Hopefully Canada will return to the international negotiating table in future years and show renewed ambition and leadership in constructively addressing this most pressing global issue.

Blog post by Steph Vanthof and Laura Zizzo

To address transportation in cities, Mercier defines upstream policy instruments as the state of a city before it decides on creating sustainable transportation. For example, cities in Europe, that were built long before automobiles were around tend to be rather dense with most of the buildings 6 to 7 stories high, consisting of multiple family homes, and the streets within the city are narrow. Whereas most North American cities (Los Angeles being a prime example) were built with the automobile in mind.

Downstream policy instruments are the tools for creating sustainable transportation that governments can employ. These include legislation, city planning for new construction and exerting influence on affordability. For example, in the 1950s Singapore was a poor city-state and had a high amount of motorization. It’s leaders explicitly set out to reverse their situation; they restrained vehicle ownership by installing expensive registration fees, road tolls and parking fees. They invested heavily in public transit, and they controlled land use development. Today Singapore is affluent and has one of the best transit systems in the world.

Historically, Canada’s major cities; Toronto, Montreal and Vancouver, are “moderately successful cities”, according to Mercier, citing that Toronto was the first Canadian city to build a subway in 1954. However, today Toronto has the longest average commute time compared to 19 major cities worldwide according to a study by the Toronto Board of Trade, reported on by The Toronto Star. The portion of Toronto-area residents travelling in cars to get to work is extremely high compared to other major cities. And with the municipal government recently removing the vehicle registration tax, and planning on increasing the user cost of public transit, while simultaneously decreasing public transit services, it looks like transportation in Toronto is going to get much worse before it gets better.

Many opportunities are available for cities to improve transportation to address climate change and concurrently make financial gains in productivity. As the Star article referenced above notes, in Toronto gridlock costs $5 billion in productivity losses. Extending the public transit service areas, hours, and frequency of trips, subsidizing user fares, and adding road tolls or congestion pricing, are all ways that cities can encourage more energy efficient means of transportation.

Blog Post by ZACL Intern Cyndi Whaley

From a legal perspective, there are many reasons to start dealing with climate change now, including Ontario’s emerging regulatory regime, securities guidance on environmental risks, phyiscal effects of climate change and potential civil liability in negligence and nusiance.