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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Major natural gas projects and ski resort developments now have the option of being built in B.C. without environmental assessment after the Liberal government quietly deposited two orders in council Monday. (Update April 17, 2014: The B.C. government has rescinded this decision. Read our new post here)

The orders — passed without public consultation — include changes to the Reviewable Projects Regulation under the provincial Environmental Assessment Act, which eliminate mandatory environmental review of new and/or modified natural gas and ski facilities. As a result, proposed projects like the Jumbo Glacier Resort or new natural gas processing facilities may skirt the approval process without standard environment review, which involves public consultation.

“These regulatory changes only heighten the crisis of public confidence in B.C.’s environmental assessment process,” said Jessica Clogg, executive director and senior counsel with West Coast Environmental Law Association (WCEL) in a press release.

“Environmental assessments are supposed to allow the public and regulators to better understand and avoid potential risks. Removing the requirement for an environmental review is not in the public interest.”

Changes to affect currently proposed projects

The Jumbo Glacier Resort, a $900-million mega resort proposed for 6,000 hectares of B.C.’s Purcell Mountains, has been stuck in planning-stage limbo for two solid decades. Despite significant provincial support, the development still faces a number of hurdles, the most notable of which is an unresolved legal challenge brought against the resort by the Ktunaxa Nation. If construction doesn’t begin by October 2014, the development faces losing its environmental approval certificate.

Changes made to the Reviewable Projects Regulation may ease the recertifying process without requiring public consultation or environmental oversight.

“It appears to be a stunning attempt to keep the ill-fated Jumbo Resort proposal afloat, funded by the misappropriation of British Columbian's taxpayer dollars,” said Wildsight’s Robyn Duncan.

During a recent public consultation more than 1,300 letters of opposition were submitted from across B.C.

“Assessing the environmental and social impacts of any such project should be a basic requirement,” Duncan said. “Exempting projects like Jumbo from the environmental assessment process closes the door on informed decisions in regard to environmental and social impacts.”

Potential loss of oversight for B.C. natural gas projects

The lack of oversight will also influence B.C.’s rapidly expanding natural gas sector. New natural gas processing plants may now be approved without a provincial environmental assessment.

Anna Johnston, staff counsel at WCEL, says that the changes could have severe consequences for local communities. “Now for natural gas production facilities there is no public review. Once there is no longer an environmental assessment, there is no mandatory public consultation.”

“It’s really concerning with these natural gas facilities, because there are so many of them. The province wants to grow this industry and there is a lot of related infrastructure, roads, and pipelines,” she told DeSmog Canada.

“They have a huge impact on habitat and water.”

Under existing law companies will still have to notify affected landowners and First Nations but not the general public.

Proposed liquefied natural gas (LNG) facilities for the central coast will still be subject to environmental assessment, says Johnston, because they store fuel and so fall under a different review category.

According to WCEL, the B.C. Environmental Assessment Office claims the changes “are designed to reduce duplication with regulation by the Oil and Gas Commission and the Ministry of Forests, Lands and Natural Resources Operations.”

However, “these changes go far beyond avoiding any possible duplication,” Johnston wrote in the WCEL press release.

“Environmental assessments are an essential and distinct part of any development process. With these changes, the province has eliminated the kind of fact-finding process and analysis that is required for responsible decision-making.”

“Public participation is necessary for social buy-in,” she said. “Governments can only keep restricting citizens’ rights to have their say in the projects that affect them for so long.”

The changes are especially significant after the weakening of the federal Canadian Environmental Assessment Act, which places the responsibility and burden of environmental assessments upon the provinces.

Image Credit: CCPA Fracking Up our Water, Hydro Power and Climate: BC's Reckless Pursuit of Shale Gas 

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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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The Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) may be ratified as soon as tomorrow, November 1. This despite a massive demonstration of Canadian opposition to the investment trade deal that will lock the federal government into a dangerously undemocratic agreement with China and Chinese investors for 31 years.

The proposed agreement, signed by Stephen Harper in Russia on September 9 and kept secret until September 26, is being strong-armed through the house of commons after the required 21-day session in Parliament.

Political action and environmental groups, opposition party leaders and experts in the field of international trade law are urging the Harper government to reconsider the agreement’s immediate ratification, demanding an open parliamentary debate before the trade deal’s future is decided.

So far all requests to throw out the deal, host a national debate, investigate the deal in emergency Parliamentary discussions, or indefinitely delay the deal’s ratification, have gone unheeded by the Harper government.

Under FIPA the federal government is obliged to protect investor rights and profits, even to compensate for lost profits. That means when it comes to disputes involving Chinese investors, like the one over the future of Enbridge’s Northern Gateway Pipeline, the Canadian government will have a duty to protect investor profits and not necessarily the jurisdictional rights of the British Columbian government, people or First Nations.

But as West Coast Environmental Law (WCEL) pointed out yesterday, First Nations people in Canada have a unique constitutional standing in the country, a standing that restricts the federal government from making decisions — without prior consultation — that affect First Nations’ constitutionally-protected Aboriginal Rights.

It appears the Stephen Harper government has not fully considered the fact that, as WCEL puts it, “by giving new rights to Chinese investors, the treaty risks undermining Canada’s obligations to deal in good faith with First Nations.”

When it comes to the China-Canada Investment Deal, not only has the Harper government failed to deal in ‘good faith’ with First Nations, but has failed to deal with First Nations at all. For this reason, the details of the treaty may be inconsistent with Canadian law.

According to WCEL Canada is hoping to ratify the trade deal through an “Order of Council,” which will see the deal implemented via Cabinet without any legislation. However, Canada is only meant to implement international treaties this way “once the treaty is consistent with Canadian law.”

Treaty implementation occurs in Canada this way because we’ve got what is called a dualist model: “a treaty that has been signed and ratified by the executive still requires incorporation through domestic law to be enforceable at the national level…Canada cannot ratify an international treaty until measures are in place to ensure that the terms of the treaty are enforceable in Canadian law.”

(This is different than America’s monist system where Congress has the power to ratify treaties, making them, in principle, U.S. law, adds WCEL).

So, are the terms of FIPA ‘enforceable’ in Canada?

Well, no. Not according to Section 35 of the Canadian Constitution which states that the Crown must make decisions “leading to a just settlement of Aboriginal claims.” The Crown also has a duty to consult and accommodate First Nations before adversely impacting Aboriginal Title and Rights.

Aboriginal Title and Rights include the right to exercise sovereignty over territorial lands, to fish and hunt traditional foods and to partake in ceremonial practices. What is immediately obvious to BC First Nations is that Canada’s duty to protect and ensure these rights runs into conflict with Canada’s proposed duty and obligation to promote and protect the rights of Chinese investors eager to make a profit of the country’s production and export of tar sands oil.

Yesterday the Union of BC Indian Chiefs addressed Stephen Harper directly on this issue.

As they outlined in an open letter, BC’s First Nations are concerned Canada’s ability to honour negotiations with aboriginal peoples will be limited while the legal threat of international arbitration hangs over the government’s head. This is especially pertinent to the development of the tar sands and the construction of bitumen pipelines — both of which pose a significant threat to First Nations’ territorial sovereignty and traditional, land-based ways of life.

“On behalf the Union of BC Indian Chiefs, we are writing to firmly express, advise and direct the Government of Canada to reject the Foreign Investment Promotion and Protection Agreement with China as the Government of Canada has breached its fiduciary duty to consult First Nations on our respective constitutionally-enshrined and judicially-recognized Aboriginal Title, Rights and Treaty Rights.

Furthermore, as both Canada and China have adopted the United Nations Declaration on the Rights of Indigenous Peoples, both countries are bound by Article 19 which states: “States shall consult and cooperate in good faith with the indigenous peoples concerned…in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

As designed, we believe that through the ratification of this agreement, China will be granted protection and would thus greatly increase their investment in the development of the Alberta tarsands, pipelines, mining projects and possibly future offshore drilling projects, all at a great cost to our Aboriginal Title, Rights and Treaty Rights.”

Source: Globe and Mail

As this map illustrates, the pipeline traverses the territories of numerous First Nations in both Alberta and British Columbia and will supply Asia-bound supertankers with tar sands bitumen to ship through territorial waters.

When it comes to deciding whose rights ought to be protected, WCEL suggests FIPA could lead the government to favour foreign investors over First Nations:

“FIPA itself may violate the constitutionally-protected process of negotiations between the Crown and First Nations. There is a reasonable probability that the threat of multi-million dollar investor-state suits under FIPA will create a disincentive for the Crown to negotiate honourably with First Nations (for example, regarding environmental and cultural protection measures in treaties or other legal agreements). The question is whether this effect is so significant that it can be said that FIPA therefore ‘substantially interferes’ not just with First Nations preferred outcomes, but the very process of negotiation. If so, then on the basis of Charter jurisprudence in Canada, a court could hold any legal action taken by Canada to ratify or implement FIPA to be unconstitutional, and it is possible that a First Nation could seek an interim injunction preventing its ratification until they have their day in court.”

WCEL adds “given the lack of consultation with First Nations on FIPA it is very difficult to see how Canada could justify its infringement of First Nations constitutional rights.”

What can you do?

The countdown is running low, with the deal’s potential ratification expected as early as tomorrow.

If you haven’t already signed a petition, or you are looking to sign another, be sure to check out these options:

Leadnow.ca and SumofUs.org’s Stop the Sellout: Canada is Not for Sale

David Suzuki’s Stop the China-Canada Trade Deal

Change.org’s Prime Minister Harper: Stop FIPPA Deal with China NOW and allow debate in House of Commons

The Council of Canadians Open Letter to Stephen Harper

Sustainable Living and Urban Gardening Anti-FIPA Petition

You can also email these pivotal members of the Standing Committee on International Trade:

Rob Merrifield rob.merrifield@parl.gc.ca

Ron Cannan ron.cannan@parl.gc.ca

Russ Hiebert russ.hiebert@parl.gc.ca

Ed Holder ed.holder@parl.gc.ca

Gerald Keddy gerald.keddy@parl.gc.ca

Bev Shipley bev.shipley@parl.gc.ca

Devinder Shory devinder.shory@parl.gc.ca

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.