At the Canada-U.S. bilateral talks last week President Barack Obama and Prime Minister Justin Trudeau announced an ambitious plan to reduce methane emissions from the oil and gas sector by 40 to 45 per cent below 2012 levels by 2025. 40-45 percent below 2012 levels by 2025 from the oil and gas sector – See more at: http://www.pm.gc.ca/eng/news/2016/03/10/us-canada-joint-statement-climate-energy-and-arctic-leadership#sthash.wStj0LFd.dpuf 40-45 percent below 2012 levels by 2025 from the oil and gas sector – See more at: http://www.pm.gc.ca/eng/news/2016/03/10/us-canada-joint-statement-climate-energy-and-arctic-leadership#sthash.wStj0LFd.dpuf

The announcement came as welcome news to many environmental groups concerned about the high global warming potential of methane. The gas is 25 to 34 times as potent as carbon dioxide over a century.   Methane is a component of natural gas and the recent fracking boom in both Canada and the U.S. has dramatically increased methane emissions from gas production and transportation as well as fugitive emissions leaked from processing stations and pipelines.   Scott Vaughan, executive director of the International Institute for Sustainable Development (IISD) and former Canadian environment commissioner, said the cross-border plan to limit emissions is “really impressive.”   “The announcement, if implemented, will lead to reducing [absolute] emissions from Canada’s oil and gas sector by about 20 per cent,” Vaughan told DeSmog Canada.

A recent analysis by the research firm ICF, commissioned by the Pembina Institute and the Environmental Defense Fund, found a nationwide 45 per cent reduction in methane is the equivalent to taking every passenger car off the road in both British Columbia and Alberta. 

The reductions would equal the removal of 27 million metric tonnes of Canada’s carbon dioxide emissions.   The recent ICF analysis found industry could cut 45 per cent of methane emissions easily and cost-effectively by simply adopting available best practices.   The joint Canada-U.S. climate strategy indicated regulatory bodies in both countries will move as “expeditiously as possible” to develop national regulations for methane emissions. Environment and Climate Change Canada committed to releasing the initial phase of proposed regulations by early 2017.   Both countries will require industry to report on existing methane sources.   Canada currently has no national framework for reporting methane emissions from all industrial sources. Consistent underreporting of methane emissions has plagued the oil and gas industry, leading international experts to conclude regions with high volumes of fracking, such as northeastern B.C., likely have much worse climate impacts than reported.   A 2014 DeSmog Canada investigation revealed B.C.’s methane emissions are likely seven times greater than reported, meaning the CO2 equivalent of the industry is around 25 per cent higher than estimated.   The B.C. Ministry of Environment estimates 0.3 to 0.4 per cent of fugitive emissions are lost to the atmosphere during natural gas fracking, processing and transport. Recent studies in the U.S. found that figure is likely closer to the four to nine per cent range.   The high fugitive methane emissions associated with fracking has led experts to conclude natural gas is equivalent to or worse than coal as a source of energy when it comes to climate impacts.   According to Vaughan, the high climate impact of methane is what makes the Canada-U.S. collaboration on emissions so significant.   “The question of how we account for fugitive emissions is really important, and urgent,” Vaughan said. “What we really need to see now is a strong political commitment to move together jointly."   Vaughan added both Canada and the U.S. are signatories of the Paris Agreement to limit temperature increases to as close to 1.5 degrees Celsius as possible.   “Debates about ideology are over and this is a question now of arithmetic: how much can we as global community stand to emit and still hit that target?”   Andrew Gage, staff lawyer with West Coast Environmental Law, said although the plan to reduce methane emissions is significant, the overall agreement keeps the door open for continued oil and gas development.   Gage said the agreement takes what Canada and the U.S. call a “science-based approach to oil and gas” development.   “It’s interesting because science supports more or less full decarbonization by mid-century, if not sooner,” Gage told DeSmog Canada.   The agreement relies on “the idea that — if we can just regulate methane emission well enough — we can continue on with developing fossil fuels,” he said.   “I think it’s fairly clear that the trajectory of that is wrong,” Gage added.   “If we’re talking about science, it’s talking about decarbonization by 2050 at the latest and here we are ramping up and banking our economy on an industry that is completely out of alignment with that.”   Without clear plans for implementing the joint climate strategy and how meaningful methane emissions reductions will be achieved, high-level agreements such as this are mere “lipservice,” Gage said.   “The methane stuff seems to be relatively positive but… you don’t just announce a target, you lay out how you will achieve it.”

Image: Justin Trudeau 

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Canada’s major ports handle more than 300 million tonnes of cargo every year. They’re how we import products like cars and TVs and how we export commodities like grain and oil. Yet many of us have likely never thought of how the country’s 18 Canada Port Authorities (CPAs) are run — until now.

The way that decisions are made at Canada’s ports are coming under increasing scrutiny from environmentalists, who take issue with ports operating as both a promoter and regulator of trade.

The boards of directors of Canada’s port authorities determine what terminals receive approval for construction, and thus what types of commodities end up leaving the harbour.

Take Port Metro Vancouver (officially known as the Vancouver Fraser Port Authority), for example. It’s the largest port authority by tonnage in the country: in 2015 it facilitated the exchange of 138 million tonnes of cargo.

In September 2012, Fraser Surrey Docks — one of 28 marine terminals located at Port Metro Vancouver — announced plans to export eight million tonnes of thermal coal mined in Montana and Wyoming to Asian markets every year.

Paula Williams co-founded the advocacy group Communities and Coal in May 2013 in response to potential health effects and climate impacts stemming from such exports.

While Port Metro Vancouver’s CEO has readily admitted the port authority has never encountered such considerable opposition to a proposal before, the terminal’s proposal is still slated to go ahead (there are multiple lawsuits filed against it over alleged lack of consultation).

“At times, I’ve felt powerless, even though I remained hopeful,” Williams says. “You really start to see the machine that you’re up against.”  

Port Users Nominate Board of Directors

That’s because seven of the 11 people who serve on the board of directors for Port Metro Vancouver are nominated by port users. In other words, the businesses that reap financial benefits from port-related transactions have a majority of the say in who gets recommended as a board member to the federal minister of transportation, who makes the final selection.

The other four spots are filled with selections by: 1) the 16 municipalities within Port Metro Vancouver’s jurisdiction; 2) the province of British Columbia; 3) the three prairie provinces; and 4) the federal transport minister (without recommendation from the port user group).

The selection process is spelled out by 1998’s Canada Marine Act, which established port authorities as federal not-for-profit corporations mandated with the three-pronged task of facilitating trade, consulting with communities and protecting the environment. Today, Canada Port Authorities serve as landlord, regulator and property developer.  

Fox Watching the Hen House

Kathryn Harrison, a political science professor at the University of British Columbia, expresses concern over the board nomination process, as there’s no requirement for the ports to seek representation from First Nations, environmental or public health groups.

“The nomination process really exemplifies for me the degree to which this port authority has been envisioned as an agency that pursues the interests of industry,” she says. “It has a coordinating role, so you’ve got to have all the industries represented. But think about it: now you have a board primarily made up of those industries overseeing regulation of themselves.”

Peter Hall, director and professor of urban studies at Simon Fraser University and expert on port institutions, says that while ports can introduce widespread consultation, it makes little difference if they don’t have “the right people” at the final decision-making point.

That said, Hall states that he doesn’t believe a locally appointed board should decide on what a port trades, as that should remain the responsibility of provincial and federal governments. But who’s represented at the table has to change, he says, as does the mandate that “all cargo is by definition good.”

“There is this presumption the [Canadian Port Authority] in your city or region should say yes to everything because it’s presumed to be in the interests of Canada,” he says. “In that sense, it’s more difficult for local interests of any type to say ‘no, we’d rather not have that.’”

Hall adds the port industry is made up of a series of oligopolies and the current board composition is “not at all good” at dealing with tough environmental and social questions. Rejigging the composition to allow for more regional municipal representation would help.

“In the long run, we shouldn’t worry so much about these very big, financially successful port authorities just being able to get as much business as they can,” he says.

“We should be worrying about their long-term social and environmental commitments because there is capacity to do that. I don’t think we’re in any danger of destroying the golden goose. I think we’re actually much more in danger of a crisis of political legitimacy.”  

Promoter or Regulator of Trade? Both.

Other port authorities have suffered from poor optics over the years: in 2011, the RCMP started investigations into an allegedly corrupt nomination process at Montreal’s port authority that involved the Prime Minister’s Office. Former Conservative cabinet minister Lisa Raitt came under fire in in 2009 for an expense scandal during her time as CEO of the Toronto Port Authority. Halifax’s port authority has faced criticism from a former port chairperson due to its loss of a major container customer. The list goes on.

While UBC’s Harrison agrees there’s an urgent need to reform the nomination process for the board of governors — which would require an Act of Parliament to amend the Canada Marine Act and the issuing of new letters patent to Canadian Port Authorities — she says port authorities also suffer from mixed mandates, in which they serve as both a promoter and regulator of trade. The goal of regulating business, she says, can come into conflict with the port’s reliance on income from projects to fund its operations.

Such a narrow focus on economic benefit, without fully considering environmental and social impacts, also concerns Andrew Gage, staff lawyer at West Coast Environmental Law.

“If you view coal as a normal and legal commodity, then you can’t understand how someone would limit its export,” he says via e-mail. “If you view coal as a product that, due to its central role in fossil fuel pollution and climate change, plays a crucial role in killing people and destroying property, then your answer may be different.”  

Bill C-43 Allowed Ports to Destroy Documents

Those tensions were exacerbated in 2014 with Bill C-43, the 475-page budget implementation omnibus bill that, among many other things, authorized the sale of federal land to port authorities. Such lands, now leasable to private industry, are no longer covered by the Canadian Environmental Assessment Act and Species at Risk Act. In the same section of the bill, port authorities were empowered to establish rules that would allow them to physically destroy documents.

Such an amendment carries extra weight given that the year prior, the Vancouver-based organization Voters Taking Action on Climate Change uncovered documents via an Access to Information request that showed an uncomfortably close relationship between Port Metro Vancouver and National Public Relations, the firm that also represents the Coal Alliance (which Fraser Surrey Docks is a member of).

Throw in the fact Port Metro Vancouver has been facing serious problems with organized crime — a Vancouver Sun investigation published in May 2015 revealed that over two dozen longshoremen are affiliated with the Hells Angels and associates — and Harrison suggests a serious overhaul is needed.

“If there are concerns being raised about organized crime operating in ports as a way to smuggle drugs, that’s not the time to be passing legislation authorizing the destruction of documents and reducing transparency,” she says.  

Lobbying Activity Flies Under the Radar

Topping it all off is that employees of Canada Port Authorities aren’t subject to the federal Lobbying Act, which means the public can’t find out which individuals or businesses are meeting with Port Metro Vancouver board directors. While Harrison doesn’t perceive any nefarious intent behind the omission, it’s yet another sign for her that the governance model hasn’t kept up with the changing times and expectations of transparency.

In 2010, the federal commissioner of lobbying issued an advisory opinion confirming that communication between shared governance organizations — a category that port authorities belong to — and “federal public office holders concerning its mandate, operation, funding and other related matters is not a registrable activity.”

Robyn Crisanti, director of public affairs at Port Metro Vancouver, notes the port authority has met with a number of federal ministers since the beginning of the year and there’s a lot of interest in the port’s activities.

“We’re very aware of what our marching orders are and we follow them,” she says.  

Grappling With the Long-Term Questions

One of the key tasks of the Canada Port Authorities, Crisanti says, is to do long-term planning: “It’s this thing of looking quite far into the future and trying to assess where Canada’s going to go in terms of trade and trade deals and things of that nature.”

For projects such as the G3 Terminal Vancouver — which if approved will annually transport eight million tonnes of grain — this can be a fairly straightforward task. While the economics may vary, there’s no doubt the world will require grain for the foreseeable future.

But it’s a different story when it comes to exports like coal and petroleum products. Canada has signed international agreements, notably the G7 commitment to phase out all fossil fuels by 2100 and the Paris Agreement to limit global warming to two degrees Celsius, both of which could seriously impact future investments in terminals that export energy products.

According to Gage of West Coast Environmental Law, Port Metro Vancouver “can consider whether fossil fuel specific infrastructure being built on port lands may become ‘stranded assets’ as the world moves away from a fossil fuel economy, as well as any potential liabilities that may be associated with fossil fuel infrastructure.”

This is where it all circles back to the board nomination process and underlying mandate.

Williams of Communities and Coal suggests that it’s currently not beneficial for the port authority to reject a project such as the Fraser Surrey Docks expansion given its modus operandi to facilitate trade, especially given that a majority of governors are commissioned under the “user pay-user say” principle.

However, Williams suggests the experience that Port Metro Vancouver went through with the controversial Fraser Surrey Docks proposal was a good learning opportunity, something Crisanti confirms (the Canada Port Authorities hired external consultants to review the permitting process and launched a new process last July). But there’s much more to be done, Williams says.

“If any change is going to come about, it’s got to be federally mandated,” she concludes. “It has to come from above.”

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This is a guest post by Andrew Gage, staff counsel with West Coast Environmental Law.

Canada is not a super-power. We’re geographically large, but small in terms of population. And when it comes to climate change we’re used to hearing politicians say that we’re “only” responsible for about two per cent of the world’s greenhouse gas emissions — so what we do to stop our contribution to climate change doesn’t matter.

West Coast’s climate work focuses on the reality that we can’t keep pretending that greenhouse gas emissions are not a deadly serious problem. The world (including Canada) is experiencing disastrous flooding, sea-level rise, extreme storms, droughts and heat waves, increased frequency and intensity of forest fires, the spread of pest species and other climate-related impacts here and now. Because of the scale of the damages, even smaller contributions are responsible for devastating results.

So, as I attend the first day of a climate conference in Bonn, Germany, part of the negotiations leading up to a much anticipated global climate agreement to be finalized in Paris this fall, let me suggest that Canada’s greenhouse gas emissions do matter globally: greenhouse gas emissions from Canada are killing people and costing the global economy billions. It’s the failure of developed countries, including Canada, to acknowledge and deal with the harm that GHG emissions are causing globally that has developing countries talking about north-south reparations for climate damages.

Calculating Climate Damages

The Climate Vulnerability Forum, an alliance of 20 countries that are especially vulnerable to climate change, has teamed up with DARA, an international humanitarian organization funded by UNICEF, to bring us the Climate Vulnerability Monitor, one of the most comprehensive attempts to quantify the deaths and economic damage that climate change is already causing around the world. Their verdict?

[C]limate change causes 400,000 deaths on average each year today, mainly due to hunger and communicable diseases that affect above all children in developing countries. Our present carbon-intensive energy system and related activities cause an estimated 4.5 million deaths each year linked to air pollution, hazardous occupations and cancer.

Climate change caused economic losses estimated close to 1 per cent of global GDP for the year 2010, or 700 billion dollars (2010 PPP). The carbon-intensive economy cost the world another 0.7 per cent of GDP in that year, independent of any climate change losses. Together, carbon economy — and climate change-related losses amounted to over 1.2 trillion dollars in 2010.

These are staggering figures. Canada’s greenhouse gas emissions from the industrial revolution to present are about 2.2 per cent of global emissions, and mix with the emissions from other countries, causing climate damages in communities around the world. If we focus on climate change impacts (400,000 deaths and US$700 Billion)*, Canada’s GHG emissions can be said to be responsible for 8,800 deaths and $15.4 billion in damages each year.

Even just here in Canada, the damages have been estimated to be $5 billion a year by 2020, so our 2.2 per cent contribution to that is $110 million/year. This analysis was completed by our National Roundtable on Environment and Economy (NRTEE), prior to being disbanded by the current federal government in 2012. We don’t have estimates about climate change related deaths in Canada, but suffice it to say that the most vulnerable groups are the young, the frail and the elderly.

So How Do We Compare?

Of course, it’s true that Canada is not causing this problem by ourselves. How does our 2.2 per cent contribution compare to other countries?

Well, the 10 countries (including Canada) that are most responsible for climate change together have caused over 70 per cent of historic greenhouse gas emissions. Using the above approach, here’s how many climate-related deaths, and how many billions of dollars of climate damages, each is responsible for:

So, yes, there are a small number of countries (eight to be precise) that are responsible for more climate-related death and destruction than Canada, but since each of them has a population far above Canada’s, we probably can’t get too indignant about that. And clearly Canada’s emissions are far from insignificant.

When You’re in a Hole, Stop Digging!

The advice that’s given to people who have a problem they created for themselves is “if you find yourself in a hole, stop digging.”

It’s time for Canada to stop digging.

We need to stop causing further harm, and we need a discussion about who should pay for the harm that we can no longer avoid, and how. As a country, we need to implement and enforce a price on carbon that will shift us away from our fossil fuel dependence, and our role in causing harm to other people and substantial economic losses.

We can’t afford not to.

* The deaths and financial losses from the “carbon-intensive economy” — losses from the direct impacts of fossil fuel use such as air pollution, water pollution and other such damages — are, of course, important. However, it’s not possible to equate Canada’s 2.2 per cent historic emissions with 2.2 per cent of the total responsibility for damages from the “carbon-intensive economy.” This is because the damages from fossil fuel use depend on a variety of factors not reflected in the 2.2 per cent figure, such as types of fossil fuel used, technologies used, where the emissions took place, etc. The report does, however, indicate that Canada suffers $18.6 billion of damage annually due to the fossil fuel economy. 

Image Credit: Kris Krug

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At West Coast Environmental Law we're gratified that Suncor, one of Canada's largest oilsands companies, has taken the time to read — and publicly disagree with — our recent report, Payback Time.

Payback Time examined the risks to Suncor and other Canadian fossil fuel companies of lawsuits brought by the victims of climate change outside of Canada. 

Suncor responded with a blog post entitled "What to do when everyone is the problem" that cleverly attempts to downplay Payback Time as just one of several efforts to single out a culprit for climate change. Suncor then argues that we are all to blame, suggesting that singling Suncor out for special blame is simply wishful thinking on the part of equally blame-worthy polluters (i.e. the general public).

Some groups are quick to single out individual countries, based on GHG emissions volumes generated within their borders. Others point the finger at specific industrial sectors which generate significant GHG emissions. Some lay the blame squarely on corporations which produce energy [linking to Payback Time] from fossil fuel sources. 

The hard, undeniable truth is that all of us, as fortunate members of the developed world, are complicit when it comes to GHG emissions…

We have heard the message that we are all responsible for climate change over and over again, and at a certain level this is true — but, we are not all equally responsible for climate change.

Suncor's rhetoric conveniently side-steps questions of who should pay for the damage caused by climate change (and what portion) and whether major greenhouse gas emitters might be held legally responsible for climate change (which was the actual focus of Payback Time).

Producer liability

Suncor argues that fossil fuel companies should not be held responsible because they are not causing the bulk of greenhouse gas emissions — it's just their product, they aren't the ones burning/consuming it: "Up to 80 per cent of GHG emissions from each barrel of oil are produced at the point of consumption." The company makes this point even more clearly in an earlier blog post that accused researcher Richard Heede's ground-breaking Carbon Major's report of "scape-goating" fossil fuel companies:

In the study, all GHG emissions resulting from the consumption of the companies' energy products by consumers and businesses have been erroneously attributed to the companies themselves.

As we've explored in previous OSQARs, 70-80 per cent of GHG emissions occur from combusting fossil fuels in our planes, trains and automobiles.

Heede's study, of course, is quite upfront about the fact that it is attributing the greenhouse gases from burning fossil fuels to the companies that extracted, processed and sold those fossil fuels.

And why not? A fossil fuel company sells each barrel knowing that the vast majority of it will be burnt, and contribute to global warming. Suncor's product is non-renewable, greenhouse gas producing oil.

The law expects the manufacturers of products to be responsible for their products when the product is used as intended. Tobacco companies didn't (in the end) escape liability (even from the victims of second hand smoke) by pointing out that it was the individual cigarette smokers that lit up. Asbestos manufacturers didn't win their cases on the grounds that no one forced people to put asbestos into their homes, thank you very much.

Society as a whole saw jobs created, collected tax dollars and bore at least some of the blame, for the harm caused by both tobacco and asbestos. And yet this did not absolve the manufacturers of responsibility for the damage caused by their product.

So yes, we are all responsible for greenhouse gas emissions, but fossil fuel companies are much more responsible, and benefit financially in a much more significant way, than most of us.

While it's hard to picture a world where no one uses energy products, it's relatively easy to imagine a world where energy from fossil fuel products plays a much more limited role. We can make insulation without asbestos, and we can produce energy without burning fossil fuels. Incorporating the full costs of producing fossil fuels into the business model for energy companies is a reasonable proposition, and the law of torts offers one pathway to accomplish this.

David Grossman, in his classic 2003 paper, Warming up to a not-so-radical idea: Tort-based climate change litigation, gave several reasons why it is appropriate to hold fossil fuel companies and other large-scale emitters, instead of the users of the fossil fuels:

·       Individual consumers such as drivers and users of electricity do not contribute "substantially" to climate change and would not meet the standards for legal causation.

·       Individual consumers have few meaningful alternatives to fossil fuels and the products that rely upon them.

·       Tort law's goal of reducing the cost of accidents would be furthered by holding liable producers who can incorporate the various costs of climate change into the prices of their  products.

The reality is that Suncor's product and operations are already causing tens of billions of dollars in damages globally, and the company and its shareholders benefit financially. The full cost of their product is not reflected in its cost. One cannot keep up that business model and not expect calls for compensation. This isn't about scape-goating — it's about equity, making sure that the polluter pays and the practical reality that paying for climate damages is going to cost a lot.

Interestingly, Greenpeace International recently made the same point in a blog post, Payback time for big polluters? — citing our report — Payback Time and our calculations about Suncor's possible liability. They conclude: "In the coming weeks we will have more information to share with you about how we are helping people to hold the big polluters accountable."

The discussion of who should pay for climate change may happen in the courts, it may happen in legislatures or parliaments around the world, or it may happen in international negotiations, but Suncor should not be surprised when it happens.

This article originally appeared on the Huffington Post.

Image Credit: Kris Krug

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Canadian oil and gas companies could be liable for billions of dollars of damages per year for their contribution to climate change caused by toxic greenhouse gas emissions, according to a study published Thursday.

The study looked at five oil and gas companies currently trading on the Toronto Stock Exchange — Encana, Suncor, Canadian Natural Resources, Talisman, and Husky — and found they could presently be incurring a global liability as high as $2.4 billion annually.

“Climate change is increasingly discussed not as some far-off threat but in terms of current realities,” said the 62-page study — Payback Time? What the internationalization of climate litigation could mean for Canadian oil and gas companies.

Published by the Canadian Centre for Policy Alternatives and West Coast Environmental Law (WCEL), the study found data showing the global financial cost of private and public property and other damage associated with climate change in 2010 has been estimated at $591 billion, rising to $4.2 trillion in 2030.

“That number is expected to increase dramatically in the coming years,” said the study written by Andrew Gage, WCEL staff counsel and University of British Columbia professor Michael Byers.

“In Canada, the National Roundtable on the Environment and the Economy has estimated that climate change will cost $5 billion annually by 2020. Given these significant costs, attention will inevitably shift to the issue of compensation and liability. In short, who will pay for the costs and damages caused by climate change, as well as the necessary adaptive measures?”

Fossil fuel companies and other large-scale greenhouse gas producers have contributed, globally, to trillions of dollars of damages related to climate change, Gage said in an accompanying media release.

“As with tobacco companies in the 1980s, these producers are confident the law will not hold them responsible for these damages,” Gage added.

“But rising levels of climate damage, increasing scientific evidence about the links between emissions and the damage they cause, and an emerging public debate about who is financially responsible for this damage, could change the situation very quickly.”

The most serious risk to Canadian companies is not litigation in Canada, the media release said. “Because the impacts and causes of climate change are global, climate damages litigation could take place in, and apply the laws of, any of the countries where damage occurs.”

Byers, Canada Research Chair in Global Politics and International Law, said substantial shifts will be required of large-scale greenhouse gas producers and their investors if they hope to manage the risk of climate damages litigation.

Those shifts include “moving away from fossil fuels, and supporting the adoption of international agreements that could link the reduction of liability risk to the provision of financial assistance or future emission reductions.”

The study concluded that the potential for climate damages litigation is global in scope.

“Cases could be brought in a large number of countries, under a wide range of legal theories, then enforced in Canada or other countries in which greenhouse gas producing companies have assets,” the study said.

“As a result, these companies and their shareholders are exposed to significant legal and financial risks — and these risks will only grow.”

In a telephone interview, Gage told DeSmog Canada that he is not aware of any successful climate damages litigation anywhere in the world, even in the highly litigious U.S.

“This is very new and in very early days but it is evolving fairly rapidly,” he said. “I would think there would be lawsuits of this type outside the U.S. within a couple of years but we’ll have to see.”

In a related commentary in Thursday’s Globe and Mail, Gage and Byers said climate change is no longer a distant threat.

“Canadian oil and gas companies could soon find themselves on the hook for at least part of the damage,” they wrote. “For as climate change costs increase, a global debate has begun about who should pay.”

They also noted Nobel Peace Prize laureate Desmond Tutu recently called on global leaders to hold those responsible for climate damages accountable.

“Just 90 corporations – the so-called carbon majors – are responsible for 63 per cent of CO2 emissions since the industrial revolution,” Tutu was quoted as saying. “It is time to change the profit incentive by demanding legal liability for unsustainable environmental practices.”

Image Credit: Zack Embree

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This is a guest post by Andrew Gage, Staff Counsel and head of the Climate Change program at West Coast Environmental Law, and Michael Byers, the Canada Research Chair in Global Politics and International Law at the University of British Columbia. This article originally appeared in the Globe and Mail.

Climate change is no longer a distant threat. Peer-reviewed science has already linked climate change to drought in Texas and Australia, extreme heat in Europe, Russia, Japan, and Korea, and storm-surge flooding during Hurricane Sandy and Typhoon Haiyan.

Climate change is already causing about $600-billion in damages annually. Here in Canada, the National Roundtable on the Environment and the Economy estimated that climate change will cost Canadians $5-billion annually by 2020.

Canadian oil and gas companies could soon find themselves on the hook for at least part of the damage. For as climate change costs increase, a global debate has begun about who should pay.

Nobel Peace Prize laureate Desmond Tutu recently called on global leaders to hold those responsible for climate damages accountable. “Just 90 corporations – the so-called carbon majors – are responsible for 63 per cent of CO2 emissions since the industrial revolution,” Tutu said. “It is time to change the profit incentive by demanding legal liability for unsustainable environmental practices.”

So far, the fossil fuel industry has successfully opposed litigation for climate damages, brought in the United States by victims of hurricanes and sea level rise. But new areas of litigation often fail at first; in the 1980s, tobacco companies were still boasting that they “have never lost a case to a consumer, have never settled, and do not expect that picture to change.” As the tobacco industry learned, changes to the interpretation and application of laws sometimes occur quite rapidly.

Nor is litigation in the U.S. or Canada the only thing the fossil fuel industry should worry about. It is becoming increasingly likely that companies could be sued by victims of climate change overseas, in countries with quite different legal systems. There, they might face lawsuits based on constitutional rights to a healthy environment, strict liability for environmental harm, or any number of other legal principles that don’t currently exist in Canadian law.

Once a foreign court has ordered a Canadian company to pay for climate damages, that order is a debt – which Canadian courts can be asked to enforce. Chevron is currently fighting court actions in Canada, the United States and Brazil that seek to enforce a $9.5-billion award handed down by the supreme court of Ecuador – for pollution caused by oil spills.

Moreover, new laws could be introduced to facilitate climate litigation. When Canadian provinces encountered impediments to their ability to sue tobacco companies for public health costs, they eliminated those impediments by passing new laws. It’s not hard to imagine countries impacted by climate change enacting new laws to clarify the liability of greenhouse gas producers.

Five companies traded on the Toronto Stock Exchange are among the “carbon majors” – Encana, Suncor, Canadian Natural Resources, Talisman, and Husky currently are collectively responsible for about $2.4-billion a year of global climate damages.

Canadians are broadly supportive of the “polluter pays” principle – the idea that those who cause pollution should pay for the harm. But because climate change has seemed far off, there has been relatively little discussion about who should pay. It has been assumed – by industry, politicians, even some environmental activists – that oil and gas companies can continue producing with impunity, at least until a global climate agreement is reached.

But rising climate costs cannot be born only by taxpayers and by those who suffer the impacts of climate change. We believe that a new global awareness of the moral and legal responsibilities of the carbon majors will lead to a wave of climate litigation. Foreign lawsuits – with damage awards that are potentially enforceable in Canada – will be difficult and expensive to defend.

Image Credit: Zack Embree

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Disappointment has turned to optimism for members of the Ktunaxa Nation, who are hoping that, over the summer, B.C.’s legal pendulum swung in favour of First Nations.

In April, the B.C Supreme Court turned down a Ktunaxa application for a judicial review of the Master Development Agreement between Jumbo Glacier Resort and the provincial government.

That decision is now being appealed, with a B.C. Appeal Court date expected early next year, and Kathryn Teneese, chair of the Ktunaxa Nation Council, believes that the legal climate has changed following the Supreme Court of Canada Tsilhqot’in decision in June.

“Certainly that has advanced the issue. . . We want to go to court and get the same kind of declaration the Tsilhqot’in got,” Teneese said.

“For far too long we have been treated as an interest group like the Lions Club or Rotary.”

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In the Tsilhqot’in case, the court recognized aboriginal title over a large tract of territory — meaning First Nations have the right to decide how to use the land. The ruling also emphasized the need to properly consult and accommodate First Nations who have not yet proved title to the land.

The Ktunaxa case is based on alleged inadequate consultation and the right to freedom of religion as set out in the Canadian constitution.

The Jumbo and Toby Creek valleys, 55 kilometres west of Invermere, where Glacier Resorts Ltd. wants to build an all-season ski resort with 23 lifts and more than 6,000 beds in hotels, lodges and condos, is considered sacred by the Ktunaxa Nation.

The area, known to Ktunaxa people as Qat’muk, has spiritual significance as the home of the Grizzly Bear Spirit and is sometimes translated as “where the grizzly bears go to dance.”

The consultation and accommodation sections of the Tsilhqot’in decision do set a standard for the Ktunaxa case, said John Borrows, Canada Research Chair in Indigenous Law at the University of Victoria.

Proponents of developments should be aware that, if there has not been proper consultation and the area is subsequently proved to be First Nations land, projects may have to go back to square one. There could also be questions about infringements of property rights, leading to claims for compensation, Borrows said.

A complication in the Jumbo Glacier area is that the area is also claimed by the Shuswap Indian Band, which supports the resort development.

“That could slow things down. Often the court tries to look at indigenous law to look at shared territory,” Borrows said.

Glacier Resort Ltd. claims on its website that it has First Nations support because the Shuswap Band, which is based in Invermere and broke away from the Ktunaxa Nation Council, is the nearest First Nation to the resort site.

Andrew Gage, a staff lawyer for West Coast Environmental Law, is less sure that the Tsilhqot’in decision will directly apply to the Ktunaxa case, which is not a title claim, but he believes the ruling may embolden courts dealing with First Nations cases.

“I think that the fact that they are going to appeal is significant. Most major changes to aboriginal law have been done at the Supreme Court of Canada level. Trial judges tend to be a little more cautious,” he said.

The freedom of religion argument is interesting, Gage said.

“It is one that I don’t think has been argued before and it could open a whole other area of law,” he said.

Photo: Ktunaxa Nation

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A little-known Bill, the Park Amendment Act, that will drastically alter the management of B.C. parks is set to become law today, creating controversy among the province’s most prominent environmental and conservation organizations. The passage of Bill 4 will make way for industrial incursions into provincial parklands including energy extraction, construction of pipelines and industry-led research.

The Bill, quietly introduced in mid-February, has already met significant resistance in B.C. where the Minister of Environment received “thousands of letters” of opposition, according to Canadian Parks and Wilderness Society’s Peter Wood. “There has been absolutely zero public consultation, and the pace at which this was pushed through suggests this was never a consideration,” he said in a press release.

“This Bill undermines the very definition of what a ‘park’ is,” Gwen Barlee from the Wilderness Committee said in the same statement, “given that our protected areas will now be open to industrial activity.”

“This is a black day for B.C. Parks – the provincial government is ensuring that none of our parks are now safe from industrial development,” she said.

According to staff lawyer Andrew Gage with the West Coast Environmental Law the bill is “difficult to square” with the sentiments underlying the B.C. Parks Service, which claims provincial parks and conservancies are a “public trust” for the “protection of natural environments for the inspiration, use and enjoyment of the public.”

In an overview piece, Gage wrote “Bill 4 allows for industry (and others) to carry out ‘research’ in provincial parks related to pipelines, transmission lines, roads and other industrial activities that might require park land. It also reduces legal protection for smaller parks.”

He noted that preliminary ‘research’ carried out by mining company Taseko in preparation for an environmental assessment of the controversial Prosperity Mine included the drilling of 59 test pits, eight drill holes 50 to 75 metres in depth, and ten holes roughly 250 metres in depth to collect metallurgical samples. The tests also required the creation of 23.5 kilometres of exploratory trails.

Bill 4 claims permits for ‘research’ will only be considered after a “thorough review of protected area values,” yet, Gage writes, “this requirement is nowhere to be found in Bill 4.”

This amounts to a “’trust, us, we’re government’ approach,” writes Gage.

Previously park use permits were only granted to those able to demonstrate the proposed activity was “necessary for the preservation or maintenance of the recreational values of the park involved.” Bill 4 rids the Park Act of this safeguard.

“The government has sent a clear signal that it is open to having pipelines cut through our globally renowned protected areas,” said Al Martin of the B.C. Wildlife Federation. “The Act will now allow industrial expansion in some of B.C.’s most beloved parks, placing them at risk.”

Critics are also concerned the changes will open pristine landscapes to environmentally destructive oil and gas extraction processes.

“This legislation opens the door to pipelines, oil and gas drilling and industrial activities that are counter to the values that created our parks system,” said Darryl Walker from the B.C. Government and Service Employees’ Union. “If Bill 4 passes, 2014 will be the year that B.C. Parks changed forever,” he said.

Canadian Parks and Wilderness Society and a group of other environmental NGOs have already collected nearly 10,000 signatures and letters in an effort to stop the implementation of the bill.

These groups are claiming the total lack of public consultation left local communities, park users and conservation groups out of the decision making process. 

Image Credit: Garth Lenz, Canadian Parks and Wilderness Society

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Lawyers for West Coast Environmental Law (WCEL) sent an open letter to the NAFTA-affiliated Commission for Environmental Protection (CEC) Wednesday, claiming Canada is "in violation of its obligations under the North American Agreement on Environmental Cooperation."

WCEL is urging also Canadians to write to the CEC and "tell them loud and clear that the Canadian government's recent attacks on environmental laws are a subsidy to the oil and gas and other industries and, as a result, we have failed to live up to our international commitments."

The North American Agreement on Environmental Cooperation (NAAEC) is the environmental accord made parallel to the North American Free Trade Agreement (NAFTA) in 1994 between Canada, the United States and Mexico.

The NAAEC established the CEC "to support cooperation among the NAFTA partners to address environmental issues of continental concern, including the environmental challenges and opportunities presented by continent-wide free trade."

The open letter comes in response to an invitation for comment from the CEC, which is marking its 20th anniversary by conducting a public review of NAFTA and NAAEC to "determine their effectiveness in fostering environmental protection and improvement in North America," according to a release from West Coast Environmental Law. A Joint Public Advisory Committee is currently accepting comments from the public.

"The environmental side-agreement was meant to ensure that NAFTA did not result in an incentive to weaken environmental laws at the request of industry, and an environmental race to the bottom," says Andrew Gage, Staff Counsel, West Coast Environmental Law. Gage thinks the CEC's public review is an opportunity for "Canadians to tell the Commission that that's just what has happened in Canada in recent years."

West Coast Environmental Law is positing that amendments made to Canada's environmental laws by the Harper government in the 2012 omnibus budget bills C-38 and C-45 have led to a "weakening of environmental protections contrary to the NAFTA side-agreement."

"Bills C-38 and C-45 gutted environmental protection in Canada," says Gage. "Canada's only law for reducing greenhouse gases was repealed, thousands of environmental assessments were eliminated, and our legal protection of fish, lakes and rivers were significantly weakened. That's not improvement, it's a backward slide."

West Coast Environmental Law is asking Canadians to join them in writing to the CEC, to ensure that Canada does not become a "NAFTA pollution haven."

Image: West Coast Environmental Law

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Recently the BC Court of Appeal fined an anti-fish farm activist named Don Staniford $75,000 plus court fees for defamation. Staniford’s work to advertise the dangers fish farms pose to wild salmon stocks did not constitute fair comment, said the judge, because he failed to adequately cite scientific information.

Staniford, a British citizen visiting BC, campaigned against Norwegian fish farming giant Mainstream Canada with mock cigarette packages reading “Salmon Farming Kills,” “Salmon Farming is Poison,” and “Salmon Farming Seriously Damages Health.” The Court of Appeal found these statements to be defamatory.

Although the BC Supreme Court ruled Staniford’s message legally fell within his right to ‘fair comment,’ the BC Court of Appeal overturned that decision, saying Staniford’s claims failed to fully meet the requirements needed to invoke fair comment protections. What he neglected to do was ‘sufficiently state’ the factual basis of his claims on what the court deemed to be the defamatory pages on his website and a press release.

Although Staniford provided access to scientific information elsewhere on his blog, the court was not willing to consider the website’s content as a whole.

The crucial element of the ruling lies in this one detail: the court agreed that Staniford would have qualified for the defence of ‘fair comment’ to win his case if he had been clearer about where his information came from.

For activists, advocates, citizen journalists and campaigners working on issues related to big industry in Canada, the BC Court of Appeal’s decision is likely to cause some concern.

Andrew Gage, staff lawyer at West Coast Environmental Law, says that “there is a real risk that the decision will chill legitimate public debate” in Canada, especially from within the activist community.

“In general deep-pocketed companies suing individuals is not a level playing field and has the effect of silencing industry critics. Moreover, defamation law, despite some important advances in recent years, in my view still favours private interests over public interest debate,” he told DeSmog Canada.

Although, he adds, “it’s not all a bad news story.” Individuals are still free to discern what science is reliable and what science may reflect the interests of industry.

“The BC Court of Appeal decision left untouched the ruling by the BC Supreme Court that judges should not choose between different versions of the science, allowing activists to speak about scientific information that may be at odds with industry-funded scientists,” he said.  

The issue of sufficient citation, however, stands.

“On the other hand” he said, “and this is where the court didn't think Staniford did enough, activists will apparently need to be very active in directing the public to the scientific or other factual information on which their statements are based. While that may be reasonable for articles and blog posts, it could be challenging for some forms of graphic activism – bumper stickers and posters, for example.”

Another notable aspect of the case is the divide it draws between corporate accountability and the duties of individuals.

Individuals like Staniford are responsible for actively citing scientific sources to defend their claims regarding industrial practices. On the other side of the public arena, especially in advertising, industrial corporations are not.

Just think back to Enbridge’s embarrassing removal of the 1000 square kilometres of islands dotting the proposed oil tanker route off the coast of British Columbia. Although Enbridge most certainly misinformed the public about the dangers of oil tanker traffic associated with the Northern Gateway Pipeline, the company was not held accountable to the public in doing so.

Advocates for an oil free coast, however, may find themselves in legal trouble if they aren’t careful to cite their sources when criticizing Enbridge.

The farmed fish industry is also legally allowed to advertise farmed salmon without citing scientific research on the negative health and environmental effects of farmed salmon production and consumption.

According to Gage, the overall problem with BC’s fair comment laws lies in the general imbalance within the legal system. Most essentially, critics of industry should be free to oppose industry without the fear of harsh reprisal.

“We can all press for laws that strike a better balance,” he says. “Quebec has banned lawsuits aimed at silencing public critics (known as SLAPP suits), while Australia has banned large companies from suing for defamation at all.”

“BC,” he adds, also “needs laws to protect free speech.”

Staniford, who has temporarily suspended activities on his blog, plans to take his case to the Supreme Court of Canada.

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The Harper government followed the advice of industry associations when making controversial changes to the Fisheries Act in the 2012 omnibus budget bills, documents relased through access to information legislation reveal.

Gloria Galloway writes for the Globe and Mail that in 2010, "the High Park Group consulting firm was commissioned by the Department of Fisheries and Oceans (DFO) to gather industry and business observations about the habitat protection provisions of the Fisheries Act."

The released documents show that phrasing regarding changes to fisheries protections "suggest that wording was offered by industry associations," according to Galloway.

Negative feedback from the 23 organizations consulted, including the Canadian Electricity Association (CEA), the Canadian Hydropower Association (CHA) and the Saskatchewan Chamber of Commerce (SKCC), correlates with changes made to legislation protecting fish and their habitats.

For example, the consultant's report said that "CEA/CHA and SKCC call for modification of the act's definition of 'fishery' to clarify that it refers to 'commercial, recreational, subsistence or aboriginal use of fish as a resource."

One of the biggest changes made in Bill C-38 was, as Galloway points out, the removal of "broad protections that covered all fish habitats," narrowing the focus of the law to protect only fish "that are part of a commercial, recreational or aboriginal fisheries, or to fish that support such a fishery."

Incidentally, the High Park Group reportedly noted that there was a "lack of cogent and substantive documentation of industry positions on the issue" of concerns about the pre-2012 Fisheries Act, as well as a lack of evidence to back up claims including "that it was too unpredictable, that it caused considerable barriers to infrastructure investment, and that it increased regulatory costs and timelines."

The Department of Fisheries and Oceans didn't neglect to also consult with environmental groups about the Fisheries Act, having done so between 2006 and 2009. It appears feedback from environmental groups did not figure as heavily in the changes ultimately made.

In fact, another report released by the department under access to information said that environmental groups called the Fisheries Act "one of the strongest laws in Canada that can be used to protect our environment" and called for it to be strengthened and enforced.

Andrew Gage of West Coast Environmental Law, one of the environmental groups consulted by the DFO, said the Harper Conservatives are "a government listening only to industry concerns."

The DFO reportedly said in an e-mail that they're "still focusing on preserving fish habitat," but using a "common-sense approach that focuses on managing threats to Canada's recreational, commercial and aboriginal fisheries and the fish and fish habitat on which they depend."

Critics of the changes to the Fisheries Act include Green Party Leader Elizabeth May, who said the DFO created "a new definition for what a fishery is and completely [ignored] the comments from a wide consultation from people on the ground who are actually protecting the fishery."

This isn't the first time that the Harper government has proven its commitment to putting 'natural resources development' and industry interests ahead of environmental protection.

Other documents released through access to information requests have already revealed that the federal government solicited industry support for environmental reforms written into the Omnibus Budget Bill C-38. Additonal documents show the government made pipeline development a top priority for that bill, at the fossil fuel industry's request, and further colluded with the oil and gas industry when tweaking the bill's environmental legislation and industrial project review process.

Image Credit: Geoffrey Kehrig / Flickr

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