Dr. Meinhard Doelle

Dr. Meinhard Doelle: Saskatchewan Case on Federal Jurisdiction over Climate Change Going to Court

May 28, 2019 rbudd Leave a Comment

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University, has graciously agreed to join the CEGE Connection conversation and share his insights on climate change and environment law. We highly recommend a visit to Professor Doelle’s Blog: Environment Law News, which provides vital information that speaks to the complexities of environmental and energy law, climate change, GHG emissions, and the role of human rights in these areas of enquiry.

“Saskatchewan Case on Federal Jurisdiction over Climate Change Going to Court” has been republished from Professor Doelle’s blog, Environment Law News.

In Saskatchewan this week, the first of two reference cases to challenge federal jurisdiction over climate change is going to court. The two cases, brought by the governments of Saskatchewan and Ontario respectively, both involve the federal Greenhouse Gas Pollution Pricing Act. The key aim of the Act is to impose a federal carbon price for provinces that either do not have one at all, or who have developed a carbon price that does not meet the minimum federal requirements. The federal pricing mechanism distinguishes between large industrial emitters and emissions that result from the use of gasoline, heating oil and similar uses at the individual level. The price imposed on individuals starts at $10 per ton and goes up to $50 by 2022. Notably, most of the revenues generated will be returned to citizens on the basis that the price will encourage individuals to reduce emissions where they can, and the rebate will compensate them for the additional cost, while still creating an incentive to reduce emissions where possible.

The province of Saskatchewan is going to court to argue that the federal carbon pricing backstop is an invasion of provincial jurisdiction. The case has attracted an unprecedented number of intervenors, with almost 20 in support of the federal position and 6 in support of Saskatchewan’s position. The immense interest in this case is not surprising. Constitutional arguments have been at the center of efforts to undermine strong environmental laws in Canada for a long time. Some have been resolved through court cases, cases which the federal government has mostly won. Others, such as the jurisdiction of the federal government to regulate greenhouse gas emissions, have lingered in the background of efforts at federal-provincial cooperation on this issue for the last two decades. As I have explored in previous posts, we have gone through cycles of federal leadership with provincial resistance, followed by federal apathy with some provinces leading the way. Questions over the limits of federal jurisdiction to deal with climate change have brewed below the surface every time the federal government has sought to lead on this issue. This, however, is the first time the legal issue is going to court.

There is such broad interest in this case, because the stakes are high. In the past two decades of lack of effective cooperation and action on climate change, we have lost valuable time in ensuring a smooth and just transition to a carbon free world. The longer these battles continue, the less we will be able to take advantage of the economic opportunities associated with the transition, the more our economy will suffer from the unplanned and abrupt loss of the jobs of the past, and the harder the transition will be for the workforce that currently relies on jobs in sectors in need of transition.

There are different ways the court can resolve the case. It may just decide narrowly whether the federal government has jurisdiction to implement the specific carbon pricing backstop it has introduced through the Greenhouse Gas Pollution Pricing Act. It could, however, also answer more general questions about federal jurisdiction over climate change. This is in part because the federal government has a number of arguments it can make. They include the federal government’s power over taxation, the federal criminal law power, and the power of the federal government to legislate in case of matters of national concern and emergencies. Some of these federal powers offer opportunities to clarify that the federal government has broad powers to regulate greenhouse gas emissions. Declaring climate change to be a matter of national concern or an emergency would be a way for the court to grant broad powers to the federal government. Federal powers to regulate greenhouse gas emissions would be more narrow if the court decided to grant federal jurisdiction using the federal taxation power or the criminal law power.

What is least likely is that the courts will depart from the well-established principle of cooperative federalism in dealing with this case by holding the federal government has no power to regulate greenhouse gas emissions. The court will be looking for ways to ensure the federal government has the legislative power to deal with climate change, while not excluding provinces from sharing this responsibility. One way to do that would be for the court to limit the federal power to a specific tool, such as the taxation power or the criminal law power. Another option for the court would be to grant broad federal jurisdiction based on federal national concern or emergency powers, but to clarify that those powers do not take away from the ability of provinces to also regulate the same activities.

A final option would be for the courts to reverse old case law in Canada and decide that the federal government has the power to implement international treaties, such as the Paris Climate Agreement. This would bring Canada in line with countries with similar constitutions, such as Australia, and avoid jurisdictional squabbles over the implementation of Canada’s international commitments and obligations.

Ultimately, whatever the specifics of the outcome, there is every reason to expect that the guiding principle for the courts will be cooperative federalism. This was emphasized most recently in the Orphan Wells decision of the SCC on the relationship between federal bankruptcy law and provincial environmental regulation, and it is a point the SCC has made again and again on environmental cases over the past few decades. The courts will be looking for ways to ensure both levels of government have the ability to address climate change, the greatest environmental emergency of our time. It is hard to see how a court will find that the federal government, after 20 years of efforts at a common approach, was unreasonable in imposing a carbon price on provinces unwilling to set their own.

The stakes are high, but the court, with the active involvement of well over 20 intervenors from all segments of Canadian society, has the opportunity in this case to remove a long-standing barrier to the effective regulation of greenhouse gas emissions, and thereby ending a two decade long stalemate on one of the most critical issues facing Canada and the world.

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Teaching

Professor Doelle’s teaching within the law school has involved courses in environmental law, energy law, climate change and contract law. He has also been involved in interdisciplinary teaching outside the law school, most notably at the College of Sustainability, where he co-taught a course on Humanity in the Natural World from 2009 to 2012

Dr. Meinhard Doelle: The Future Of Environmental Law

April 9, 2019 rbudd Leave a Comment

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

“The Future Of Environmental Law.” has been republished from Dr. Meinhard Doelle’s blog, Environment Law News.

Sabbaticals are an opportunity for reflection. When I started mine last summer, I promised myself that in addition to getting caught up on some of my ongoing research projects and starting a few new ones, I would take the opportunity to reflect on the state of my chosen field. Among the issues on my list was the state of environmental law, and, more broadly, the state of efforts toward sustainability, toward human civilization living within planetary boundaries, along with a range of social goals and the realization of basic human rights for all. The 2015 Sustainable Development Goals are one articulation of what many of us are aiming to achieve.

It is not hard to conclude that we are further away from these goals now, including their environmental elements, than even a decade ago, let alone two or three. The evidence is overwhelming. Particularly at a planetary level, things are looking increasingly bleak. We have reduced the global animal population by 60% since 1970, the list of endangered and extinct species continues to grow with every passing year, nature continues to be converted to serve consumption purposes at alarming rates, plastics, other waste and pollutants are becoming more prevalent in our oceans than fish, and climate change threatens to undermine the ability of the planet to sustain natural systems and humans alike.

Increases in human population over time have made living sustainably on a planet with finite resources more challenging, but by far the most dominant causes of the sustainability crisis have been overconsumption and the wasteful use of the planet’s resources. We are fundamentally mismanaging of our relationship to nature, as evident from the land and natural resource demands associated with human consumption, and the pollution and waste associated with the way we provide the goods we consume and services we use. The depletion of natural resources and the destruction of natural systems is not an inevitable consequence of meeting the needs of a growing human population, but rather the result of poor choices. We can respect and protect natural systems while improving the quality of life of the many who still don’t have access to basic human needs such as adequate food, water, shelter, education and basic health care.

Much has been written about the failure of environmental law to solve the growing sustainability crisis. I was inspired to write this reflection in part by Professor Inara Scott’s contribution to a recent special issue on the state of environmental law. In it, she describes the way we conceive environmental law as consisting of three problematic limitations:

Environmental law addresses interactions between humans and the natural environment, and ways to limit human actions in order to protect the environment. Conversely, environmental law does not focus on human-to-human interactions or economic transactions. Matters having to do with corporate law, tax, and business are generally not included. It is only recently that energy law—including fossil fuel extraction and electric utility regulation—has been considered alongside or even linked to environmental law.

Environmental laws address narrow targets with narrow solutions. For example, the ESA creates a mechanism for protecting individual species. It was not intended to create a mechanism for considering bigger questions (i.e., how do we protect biodiversity?).

Environmental law is furthered by liberal white activists. Environmental law is not relevant to conservatives, people of color, or people living in urban settings who do not like the woods.

Some accuse elements of the environmental movement of having been co-opted by governments and business interests to accept unacceptable levels of harm in return for a seat at the table. Others point to a failure of democracy, of international law and of multilateralism. Yet others focus on corporate power applied in the pursuit of short-term greed over sustainability and prosperity. Many disciplines and individuals have contributed to a better understanding of how we got here, and how we could have done better. It is not my intention to go over this well covered ground. My modest proposition in this post is that assessing what has and has not worked in the past, while important, is no longer enough, as past experience is no longer an adequate predictor for how to solve the problems of the future. Let me explain.

As explored in a 2016 book called “Thank You for Being Late” by Thomas L Friedman, we live in a period of human history that is dominated by exponentially accelerating change. Friedman identifies three critical areas of such change, environmental harm, (computer) technology, and globalization. His basic proposition is that at least in these three areas, change has accelerated exponentially over the past few decades, and is showing no signs of slowing down. Whether one agrees with Friedman on the details, it is hard to dispute that we can expect the world to change in unimaginable ways in the next one or two decades. It is becoming increasingly difficult to predict what the world will look like even a decade from now, except that it won’t be anything like it is today. It is also increasingly difficult to predict how individuals, and even governments and businesses, will be able to influence the path of humanity.

What will happen to nation states when so much power transcends national borders? How will democracies fare in a world of alternate facts, trolling, the decline of independent media, and political leaders with dictator-like tendencies who offer simplistic solutions in an increasingly complex world? How will humans fare in a world dominated by artificial intelligence? What will happen to the climate system, to the oceans, to safe water and adequate food? My basic proposition is that in order for the natural services critical for human survival and that of other species on this planet to be secured, those concerned about the sustainability crisis, including those of us thinking about the role of law, policy, and governance systems to protect natural systems, must look beyond past experience to look for solutions.

We cannot rely on what has worked in the past, and we similarly cannot simply fix and adjust what has not worked. Rather, we need to reflect on what is ahead, and rethink how to protect the natural systems and resources we all depend on in light of new, emerging, and constantly evolving circumstances. We will have to continue to do so again and again for as long as this period of accelerating change in technology, globalization and environmental harm continues. In short, we have to become adaptable as never before.

In the remainder of this post, I will illustrate the opportunity for previously unpredictable solutions to emerge quite quickly. I will do this with a brief exploration of two emerging technological innovations that, when put together and applied effectively, have the potential to offer a powerful tool for sustainability. However, each also carries with it the risk of perpetuating the status quo. The two technologies I have in mind are artificial intelligence (AI) and blockchain. To be clear, my point here is not that they are the solution to our sustainability challenge, but to illustrate that that new thinking is needed to identify the solutions of tomorrow, that the tools of the past may not be the most effective tools to solve the sustainability challenges we face today, and that adaptability to new and emerging circumstances will be critical to finding and implementing sustainability solutions in an ever-changing world.

Blockchain technology is essentially a system of decentralized electronic records shared among users. They key contribution of blockchain is its promise to ensure that these records are secure, traceable, and auditable, and are maintained on a peer-to-peer network that can be publicly accessible. One potential application of blockchain is to track the supply chain and life cycle of goods and services. In theory, blockchain technology could ensure full transparency of all key social and environmental determinants of the sustainability of products and services offered, no matter where they are manufactured, sold, used, reused, recycled or discarded. Of course, achieving this would require a coordinated effort to ensure the right information is tracked, and adequate oversight to ensure the data collected is accurate and properly reflects the social and environmental performance of the product or service in question.

Similarly, in theory, governments and citizens, through artificial intelligence based ‘virtual assistants’ such as Amazon’s Alexa or Google Assistant, could have access to, analyze, and make purchasing and regulatory decisions based on all this blockchain data made publicly available on all products and services. This could give governments and individuals the information needed to ensure only environmentally responsibly products are purchased, that preference is given to the most environmentally and socially responsible products, and that the durability, and the operating, maintenance and repair costs of products are factored into price comparisons. Products that don’t meet a certain sustainability threshold could be banned by regulators, while others would be rejected by virtual assistants based on either built in or stated preferences for more sustainable products, or for products that are more cost effective over their life cycle. The end result could be a global race to the top, a world, where businesses who are able to produce the most sustainable products are rewarded, rather than those with the most effective marketing strategy.

There appear to be at least two key elements to making effective use of these technologies to reduce the environmental (and other) harm of products and services. One is to ensure blockchain or similar technologies are used effectively to collect accurate, reliable and comparable information about the environmental and social impacts of products and services. The second is to ensure this information is used to prevent unsustainable products and services from being made available for purchase, and to encourage consumers to purchase those that are the most socially and environmentally responsible. In short, human societies could put such technologies to effective use in the effort to become sustainable.

Of course, that is not what is happening so far, in part because those who understand the scale of the sustainability crisis tend not to be at the table to help shape the use of these technologies. They are not the ones negotiating the rules of engagement between manufacturers and Amazon’s Alexa or Google Assistant. They are not the ones deciding whether and how blockchain is used to track the life cycle of a product, or how ‘smart contracts’ are designed based on the supply chain information available through blockchain. They are not the ones designing the algorithms that tell us what to buy and what not to buy, nor are they at the table where decisions are made about the regulation or application of these technologies.

That task, by default, appears to be left to those who tend to view environmental protection as a luxury, as a fringe issue that cannot be permitted to interfere with economic growth, people who continue to live in a fantasy world of unlimited resources, and unlimited assimilative capacity of natural systems to clean up our messes. So, while we fight to protect the last bit of wilderness and the last few orcas or right whales, Amazon and Google, not represented by sustainability advocates and not regulated by sustainability oriented governments, negotiate with manufacturers around the world about the recommendations Alexa will make when you decide to buy your next gadget, kitchen appliance, car, or piece of clothing.

I am not suggesting that the environmental movement should stop fighting to protect important natural ecosystems, endangered species or stop pushing for laws that reduce pollution and waste. At the same time, we have not been able to win the battle using these tools, and there is every reason to expect that these tools will continue to become less powerful over time. More importantly, with change, there will be new opportunities, ones we are likely to miss if we continue with the mindset that environmental protection is something separate from the rest of society, separate from corporate law, from trade law, from technology and internet law.

To save the planet, nature, and human civilization, environmental protection and sustainability need to become mainstream, an integral part of everything we do, including the regulation of AI, of research, development, and the dissemination of new technology, of the regulation of corporations, the internet, AI, and international trade. We cannot afford to think of environmental law as distinct and separate from the governance of human society. Environmental law needs to be integrated and adaptable, and we need to regularly re-evaluate where the opportunities are to shift human civilization toward sustainability.

Things will continue to get more complex but hidden in the complexity are opportunities to achieve things that were unthinkable before. Emerging technologies such as blockchain and AI illustrate this, as they have the potential to put a stop to misinformation about the environmental and social impact of products and services and encourage a race to the top. They have the potential to put a stop to planned obsolescence, greenwashing, and consumer misinformation. However, they will not do so unless directed to. They will only do so if those who understand the seriousness of the sustainability crisis identify these opportunities and get involved in making them happen.

What it will take to identify and realize such opportunities are individuals in all sectors of society looking for them, not just a few committed individuals working or volunteering for ENGOs pushing for stronger environmental laws. It will take innovative thinkers in corporate boardrooms, in research labs at Google, Apple and Microsoft, at cabinet tables and in government bureaucracies to identify and realize these opportunities. It will take those who understand the significance of the sustainability crisis and are committed to working to addressing it to work for businesses and governments, not just for ENGOs. We need those committed to this cause to include all races, all cultures, and all demographics, and we need them all to look for and pursue solutions in unlikely places.

As an academic and a teacher, I am mindful that to achieve this, we need to reach all students, and we need to educate with a message of modesty that is based on the premise that the world is changing too fast for us to have and teach answers, and to instead give our students the tools for critical analysis, so that they can diagnose the problem in light of ever changing circumstances and find their own solutions, solutions that are today still inconceivable, and are designed for problems that will look very different when our students are ready to take them on.

Selected References

Inara Scott, et al, “Environmental Law. Disrupted” (2019) 49 ELR 10038.

Mahtab Kouhizadeh and Joseph Sarkis, “Blockchain Practices, Potentials, and Perspectives in Greening Supply Chains” (2018) 10 Sustainability, 3652

Thomas L Friedman (2016) Thank You for Being Late (Farrar, Straus and Grioux, New York)

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Dr. Meinhard Doelle: Negotiating the Paris Rulebook: Compliance in Transition

February 5, 2019 rbudd Leave a Comment

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

“Negotiating the Paris Rulebook: Compliance in Transition.” has been republished from Professor Doelle’s blog, Environment Law News.

In December, 2018, Parties to the UN Climate Regime are set to negotiate a Rulebook on how to implement the Paris Agreement. The Rulebook will cover a broad range of issues, from market mechanisms, to finance, reporting, and the 5 year review cycles build around the global stocktake. Key among the elements of the Rulebook is the compliance system. In this post, my intention is to briefly highlight some of the issues before negotiators of the compliance system. A more detailed assessment of the draft negotiating text is available in my article entitles “Compliance in Transition: Is Facilitative Compliance Finding Its Place in the Paris Climate Regime?”. It is published in CCLR, and a draft is available at SSRN: https://ssrn.com/abstract=3228766.

In the transition from the Kyoto Protocol to the Paris Agreement, some parties took great lengths to distance themselves from the architecture and institutions of the Kyoto Protocol. Key among this architecture was the Kyoto compliance system, which was seen as a departure from the norm for multilateral environmental agreements (MEAs). The system included an enforcement branch that applied automatic consequences in case of non-compliance with key obligations of developed country parties. It is therefore not surprising to see a focus on facilitation in Article 15 of the Paris Agreement and specific direction that the compliance system is to be non-adversarial and non-punitive.

The differences between the Kyoto compliance system and that to be developed under the Paris Agreement are, of course, also driven by substantive differences between the two agreements. Most notable among these differences is that the Paris Agreement establishes a much broader range of commitments and obligations covering mitigation, adaptation, funding, technology access, education, capacity building, and loss and damage. The commitments, furthermore, have been made by a much broader range of parties, including all developing countries, in particular the least developed countries and small island states. Many of the commitments are self-determined in the form of nationally determined contributions (NDCs) to be updated by parties every five years.

While there are many important differences, some of the core challenges of ensuring compliance are, on closer examination, remarkably similar to the Kyoto Protocol. Both agreements include a range of commitments from voluntary to binding. Both include provisions for market mechanisms, which will be dependent on compliance to be effective. Both include a range of reporting obligations that are fundamental to the functioning of the regime. These parallels suggest parties would be well advised to draw on the compliance experience under the Kyoto Protocol in negotiating the design of the Paris compliance system.

This post assesses the state of play in the negotiations under Article 15 heading into the COP 24 negotiations in Poland from December 2-14, 2018. The negotiations are taking place in the context of the provisions of Article 15 itself as well as provisions 103 and 104 of the Paris COP decision. Before delving into the current state of the negotiations, it is helpful to identify the key relevant elements of the agreement parties reached in Paris.

The overall purpose of the compliance process under Article 15 is to facilitate the implementation and promote compliance with the provisions of the Paris Agreement. It is important to highlight that Article 15 refers to “the provisions”, not just some provisions, and not just obligations. It seems clear, therefore, that the mandate of the compliance committee should be broad in scope, include individual and collective commitments, and include binding obligations as well as non-binding commitments.

Another set of provisions in Article 15 clarify the overall approach to be taken in the design of the compliance system. They refer to the facilitative, non-adversarial and non-punitive nature of the process, and the principle of transparency. These elements offer important guidance to negotiators on the design of the compliance process and the measures the compliance committee should have at its disposal to facilitate implementation and promote compliance.

A key message in Article 15 relates to the “respective national capabilities and circumstances of the Parties”. This reference to the revised principle of common but differentiated responsibilities (CBDR) in the Paris Agreement signals that the process needs to be sensitive to the capacity challenges of the least developed countries in particular. Article 15 is clear that with respect to compliance, differentiation based on capabilities and other relevant circumstances is the job of the compliance committee. This suggests that the compliance modalities and procedures should provide flexibility for the committee to apply certain aspects of the compliance system to parties that have capabilities and circumstances that may warrant either relaxing process requirements or warrant the application of different measures at the conclusion of the compliance proceedings.

The agreement reached in Paris offers considerable direction on the process to be designed. Included is the composition of the compliance committee (12 members, two from each of the 5 UN regions plus one each from a least developed country and a small island developing state), required areas of expertise, and the importance of gender balance on the committee. The committee is to report annually to the Conference serving as the Meeting of the Parties to the Paris Agreement (CMA). This is the context within which parties are now negotiating the modalities and procedures for compliance. Among the key issues are the following:

Purpose, Principles and Nature of Compliance Procedures

Functions of the Compliance Committee

Institutional Arrangements

Scope of Work of the Compliance Committee

Initiation of Proceedings before the Committee

Process to be followed by the Committee

Measures and Outputs at the Committee’s Disposal

Identification of Systemic Issues (ie beyond individual party issues)

Sources of Information for the Committee’s Work

Relationship with and Accountability to the Conference of the Parties (COP)

Who Carries out Reviews of the Modalities and Procedures

Secretariat Support for the Work of the Committee

A particular source of complexity in the negotiations is that the compliance modalities are being negotiated in parallel with the overall Paris Rulebook. Not only is there uncertainty about the nature of substantive rules on mitigation, emissions trading, and finance, but as discussed elsewhere in this special issue, the Paris Agreement contemplates a comprehensive 5 year review cycle that consists of parties reporting on their efforts to implement their NDCs, review of those efforts and reports, a global stocktake of progress against the long term goals, and revised NDCs. Even though the Paris Agreement clearly provides for a compliance system, it seems that some parties would prefer to subsume the compliance effort under the work of the transparency framework and the global stocktake.

To be effective, the compliance process under Article 15 will have to find its place within the Paris Climate Regime, both substantively (i.e. its role with respect to mitigation, emissions trading, finance, adaptation, technology, capacity building, coordination among institutions and connection among commitments) and in relation to the overall institutional structure being developed. The aim must be to complement the bottom up NDC approach with appropriate top down elements to help close the significant ambition gaps that currently exist in all key areas of the Agreement. A key contribution of the compliance process will be its relative independence and its resulting opportunity to impartially assess compliance with individual and collective commitments. This will help inform the broader discussion about the effective implementation of the Paris Agreement.

There is much to be resolved in developing an effective, efficient, and fair compliance process under Article 15. Key among them are effective triggers for the compliance process, an adequately broad mandate to be able to effectively facilitate implementation and promote compliance with all important commitment in the Paris Agreement whether binding or not and whether made by a developed or a developing country Party. The inclusion of “implementation and compliance” and the language of “the provisions” in Article 15(1) clearly enables the process to deal with all important commitments. Any differentiation between binding and non-binding and differentiation among parties should focus on applying appropriate measures in the circumstances. This can be assured through an appropriate combination of general direction to the committee and appropriate discretion. A fair and effective process will depend on the full implementation of the commitment to transparency and on procedural fairness to any Party being investigated.

It will be important to keep the focus of the committee on technical issues and to avoid having it dragged into political issues and equity judgement calls. This seems particularly important and tricky when it comes to the assessment of systemic issues. The committee will be well advised to stick to assessing whether the collective goals are on track and to technical assessments of the causes, without being seen to point fingers at any particular party or group of parties unless they have clearly failed to meet their individual commitments. This means the focus should be on commitments that allow for a technical assessment of compliance or implementation, rather than political consideration or judgements. Committee has the potential to make an important contribution to progress on collective commitments, particularly those that involve all parties or a clearly identified group of parties, as this can be assessed without getting to any assessment of who within the group of parties needs to do more. Having said this, to ensure the committee has the full opportunity to pursue important systemic issues as they arise, the triggers for systemic issues should include the CMA, the Article 13 outcomes, and the committee based on its own assessment of reports generated under the PA.

It will be important to properly integrate the work of the committee with Article 13 and 14. Not much can be said about the details of how to ensure this is done until there is more clarity on the review process under Article 13 and the global stocktake under Article 14. However, it is clear that the compliance committee can benefit greatly from the work proposed under Article 13, and its conclusions and recommendations have the potential to be important for the global stocktake.

For binding commitments, it will be important for the committee to make a finding of compliance/non-compliance and to apply other appropriate consequences including a compliance action plan, and other non-punitive measures. It would be helpful for negotiators to recognize in this regard that compensatory measures are different from punitive measures, and that for markets under Article 6 to function, it may be important to include compensatory measures in the toolbox of the compliance committee. Special access to support should be limited to LDCs and SIDS.

Conclusion

It is too early to say whether the compliance system is finding its place among the many institutions and processes under the Paris Regime. There are still many issues unresolved within the compliance negotiations, and many more issues to be worked out on other key aspects of the Paris rulebook, such as the reporting, transparency and global stocktake provisions. In the absence of significant progress in other areas in advance of COP 24, negotiators may be well advised to develop the modalities and procedures for compliance at a fairly high level, and to leave some of the detail for the compliance committee to work out after there is more clarity on how other aspects of the Paris Agreement, including Articles 6, 13 and 14, will be implemented. As a result, while this year’s COP should be an important milestone in the development of the Paris compliance system, it is unlikely to mark the end, as much of the detail will inevitably have to be finalized later, either by the CMA or by the compliance committee once it is established.

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Professor Doelle specializes in environmental and energy law, with a focus on climate change and environmental assessment processes. He has been involved in the practice of environmental law in Nova Scotia since 1990 and in that capacity served as drafter of the NS Environment Act and as policy advisor on the Canadian Environmental Assessment Act (1992). Professor Doelle was a non-governmental member of the Canadian delegation to the UN climate change negotiations, 2000 – 2006. He continues to follow the negotiations as an official observer. Professor Doelle was a visiting scholar at the Environmental Law Center of the IUCN in Bonn, Germany, 2008. He co-chaired a strategic environmental assessment on tidal energy in the Bay of Fundy from 2007 to 2008, served on the Lower Churchill Joint Federal-Provincial Review Panel from 2009 to 2011, and co-chaired a provincial panel on aquaculture from 2013 to 2014.

Teaching

Dr. Meinhard Doelle: Reflections on the IPCC’s Report on 1.5 °C

November 29, 2018 rbudd 2 Comments

“The basic message in the report is that GHG emissions come at a high cost in terms of human health, future economic growth, human security, and our ability to meet our basic needs of food and water. The cost at 1.5 °C may be manageable, but the cost increases significantly if temperatures are allowed to go higher, and may quickly become unmanageable. The time delay between emissions and impacts means that by the time we know for sure the impacts will be unmanageable, it will be too late to prevent them from becoming unmanageable.”

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

“Reflections on the IPCC’s Report on 1.5 °C has been republished from Professor Doelle’s blog, Environment Law News.

On October 6^th, 2018, the Intergovernmental Panel on Climate Change (IPCC) released its much anticipated report on the implications of the 2015 Paris Climate Agreement’s goal of keeping global average temperature increases to 1.5 °C. This IPCC Report was commissioned by the Parties to the Paris Agreement because when they agreed to the 1.5 °C goal, only limited analysis on 1.5 °C had been done by the scientific community, and none by the IPCC. Until then, the IPCC’s scenarios had been based on 2 °C and higher, pointing to the increasingly disastrous consequences of these higher temperature scenarios. It is through this higher temperature scenario work that it gradually became clear that 2 °C was not an adequate goal to ensure a stable climate.

The 1.5 °C Report offers a first opportunity for Parties to the Paris Agreement to assess how their current “Nationally Determined Commitments” (NDCs) and their national efforts (such as the Pan Canadian Framework) stack up against the 1.5 °C goal they all accepted in Paris in 2015. In this post, I will offer highlights of the key conclusions of the IPCC Report (http://www.ipcc.ch) and consider its implications for Canada.

What the IPCC Report Says

The report starts by providing important context for the consideration of the 1.5 °C goal. It points out that the Earth is already experiencing over 1 degree of warming, will reach 1.5 °C between 2030 and 2050 at the current rate of increase ( ~0.2 °C per decade). It also points out that global average temperature increases are not distributed evenly. They tend to be higher over land than over oceans, higher inland, and higher in polar regions. Regions at disproportionately higher risk from the effects of climate change include northern regions, inland dryland regions, small-island developing states at risk from sea level rise, and least developed countries because they lack resilience. Many of these regions are already experiencing significant impacts and losses from crop failures, erosion, storm damage, water shortage, and loss of biodiversity.

The Report offers the following key conclusions on its assessment of the 1.5°C goal:

Impacts on health, livelihoods, food security, water supply, and human security will be less for 1.5 °C than for 2 °C, and the global economy will be harmed less by climate change impacts at 1.5°C than at 2°C.
Unless we are prepared to rely on risky, expensive, and/or unproven removal technologies to meet the 1.5°C goal, global emissions have to decline by about 45% by 2030, and reach net zero around 2050.
In addition to reducing CO2, we need deep reductions in emissions of methane and black carbon.
Pathways limiting global warming to 1.5°C require rapid and far-reaching transitions in energy, land, urban and infrastructure (including transport and buildings), and industrial systems. These systems’ transitions are unprecedented at a global scale, but are doable. They imply deep emissions reductions in all sectors, a wide range of mitigation options and a significant upscaling of investments in those options. Carbon pricing is an important part of this effort, but much more that a price on carbon is needed.
The lower the emissions are by 2030, the more likely it is that the challenge in limiting global warming to 1.5°C after 2030 will be manageable.
There are many synergies between 1.5 °C pathways and the 2015 UN Sustainable Development Goals, but there are also significant risks of trade-offs, particularly with respect to large scale efforts to enhance sinks and other efforts to remove carbon from the atmosphere.

What the IPCC Report Means for Canada

First, I think it is important to recognize that the IPCC Report would have important implications for Canada even if we decided not to change our GHG emission reduction targets or increase our domestic effort to decarbonize. I say that because the Report makes it clear that regardless of our actions, somehow preserving the status quo is a practical impossibility. Even if we don’t decarbonize, the world around us will change in significant ways. If we don’t act, and in the process discourage others from acting, climate change will accelerate, causing economic, social and environmental hardship for all.

Even if we were to free ride, meaning we decided not to act on climate change while other countries do act, we would lose export markets for the GHG intensive products we currently rely on for our economic wellbeing. Even in that scenario, we would need to transition our economy, something that will not happen without domestic markets for the solutions to climate change. Domestic markets for these products and services in turn depend on investor friendly policy and regulatory environment for decarbonization solutions.

The basic message in the report is that GHG emissions come at a high cost in terms of human health, future economic growth, human security, and our ability to meet our basic needs of food and water. The cost at 1.5 °C may be manageable, but the cost increases significantly if temperatures are allowed to go higher, and may quickly become unmanageable. The time delay between emissions and impacts means that by the time we know for sure the impacts will be unmanageable, it will be too late to prevent them from becoming unmanageable.

It is clear that a significant part of the global community is committed to the transition that is needed, though we are at a critical time to ensure the global action will be at the scale needed to avoid worst-case scenarios. The transition is well under way in many countries. A key message from the IPCC is that it needs to be accelerated, and that there are global economic (among many other) advantages to accelerating the transition. All Parties to the Paris Agreement will be challenged, starting in Poland this December, to increase their targets, and to match the more ambitious targets with more ambitious action at home and internationally. This means that industries dependent on fossil fuels and other sources of significant GHG emissions are increasingly at high risk of becoming unprofitable. It also means that there are huge economic opportunities for those who find ways to accelerate the decarbonization of societies around the world.

For Canada, the message of the IPCC Report, therefore, is that we need to decarbonize from a domestic consumption perspective, and we need to prepare for export markets drying up for our fossil fuel based (and other GHG intensive) products. We should, over the next year, set new targets for 2030 and 2050 that are in line with the IPCC report and with our commitment under the Paris Agreement to make a fair contribution to the global effort to keep global temperature increases to 1.5 °C. We should increase our domestic efforts to decarbonize in line with our revised targets. We should continue to diversify our economy by supporting industries that are part of the solution, and stop investing public resources or otherwise subsidizing industries that are not part of the solution. Finally, we should make every effort to ensure the transition of our society from a fossil fuel based one to a carbon neutral one is fair. A priority in this regard is to ensure a transition of the workforces that are currently working in sectors that we will lose (such as the production of fossil fuels), and to help other sectors to thrive through the transition (by doing everything we can to support a shift to carbon neutral agriculture, manufacturing, and buildings, for example).

As importantly, the IPCC report means that we have to change the nature of the discourse on climate change in Canada. We have to change from trying to protect the status quo to accepting the need for the transition. Rather than continue to fight or delay the inevitable, we need to ensure that the transition that we need to make is fair, and that we thrive economically and socially through the transition. This is not accomplished by trying to hang on to what “we have” for as long as possible, and then face the collapse of our economy along with the collapse of the climate system. Rather, it is accomplished by taking seriously both the climate threat and the challenges and opportunities associated with the transition that is now so clearly inevitable.

Priority Actions for Canada

The following are priority actions the IPCC Report demands of Canada:

We need to update our Nationally Determined Contribution (NDC) under the Paris Agreement by 2020 in light of the findings in the IPCC Report.
We need to significantly accelerate the electrification of transportation and heating and any other significant uses of energy, and develop our own manufacturing capacity along the way (such as leading on the manufacture on electric vehicles, and on innovative approaches to carbon neutral buildings).
We need to make the production of electricity itself carbon neutral, by completing the shift to renewables, through investment in production capacity along with storage, demand management, and smart grid approaches. We are well on our way on this front in many provinces, but do need to accelerate this effort, especially if the electrification of transportation and heating is to accelerate decarbonization.
We need to continue to improve the efficient use of energy, particularly in buildings, transportation and energy intensive industries.
We need to stop subsidizing and otherwise supporting the exploration and use of fossil fuels, and shift that support to industries and technologies that are part of the solution
We need to prepare for the phase out of fossil fuels by diversifying our economy around the solutions to climate change.
We need to protect and enhance our carbon sinks in a manner that supports biodiversity, indigenous cultures, and food production.
We need to transition our food production and diets to low-carbon or carbon neutral food sources.

Continuing to fight this inevitable transition will exhaust us as a country, and leave us ill prepared for the challenges ahead. It is time to put our energy into embracing the transition, and thriving through it. Swimming upstream in the hope that the current will weaken (when we know better) is not the way to avoid the waterfall downstream. It is time instead to stand up and get out of the water while we still can make it to shore, and before we are swept downstream by the growing current. Perhaps, in the process, we will learn that living on dry land is not so bad after-all.

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

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Dr. Meinhard Doelle: Decades of Climate Policy Failure in Canada: Can we Break The Vicious Cycle?

October 4, 2018 rbudd Leave a Comment

“During the course of a hot and humid stretch in the middle of summer on the East Coast of Canada, while hearing about record heat waves and wild fires, I find myself reflecting on over 20 years of efforts in Canada to respond appropriately to the challenge of climate change. During the past 20 years, Canada has gone from leader to laggard twice, once with the Kyoto Protocol, and again, it would appear based on recent developments, with the implementation of the Paris Climate Agreement.”

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

“Decades of Climate Policy Failure in Canada: Can we Break The Vicious Cycle?” has been republished from Professor Doelle’s blog, Environment Law News.

During the course of a hot and humid stretch in the middle of summer on the East Coast of Canada, while hearing about record heat waves and wild fires, I find myself reflecting on over 20 years of efforts in Canada to respond appropriately to the challenge of climate change. During the past 20 years, Canada has gone from leader to laggard twice, once with the Kyoto Protocol, and again, it would appear based on recent developments, with the implementation of the Paris Climate Agreement. All this, of course, after Canada had already committed to stabilize emissions at 1990 levels by 2000 in the context of the 1992 Framework Convention on Climate Change, a commitment it also failed to implement.

Canada eventually withdrew its ratification of the Kyoto Protocol, and in the process did very little to reduce domestic emissions compared to most developed and even some developing countries.

Following its leadership role in 1997 in the Kyoto negotiations, Canada’s federal government of the day worked hard with provinces and stakeholders to develop a set of climate policies to implement effective climate mitigation and adaptation in Canada. It ratified the Kyoto Protocol, supported its entry into force, but efforts to take effective steps to implement Canada’s commitments ultimately failed. Canada eventually withdrew its ratification of the Kyoto Protocol, and in the process did very little to reduce domestic emissions compared to most developed and even some developing countries. Some provinces, such as British Columbia, Ontario, Quebec and Nova Scotia, stepped up to lead during this period of federal withdrawal, but Canada as a whole never achieved any leadership in its domestic mitigation efforts.

Canada has more recently made another effort at climate mitigation leadership, this time in the context of the Paris Climate Agreement in December 2015, only to falter yet again in translating its international leadership into effective domestic implementation. In this post, I will share my reflections on this most recent cycle, which started with the election of the Trudeau Liberal Government in the fall of 2015.

The Liberal Party under Justin Trudeau showed signs of leadership on climate change during the 2015 federal election. It beat out the NDP in part by appealing to traditional NDP and Green Party voters on issues such as climate change. Once elected, it continued to show leadership during the UN climate negotiations, by playing an important, constructive role in the final days of the Paris climate negotiations in December 2015. It was part of an ‘ambition coalition’ of over 100 countries that secured the inclusion of the global goals of keeping temperature increases to well below 2 degrees while striving for 1.5, and to aim to reach global carbon neutrality by the second half of the century. Canada continued to show leadership by ratifying the Paris Agreement quickly to help bring it into force in record time by November 2016.

In spite of agreeing to provisions in the Paris Agreement that recognize the gap between individual commitments and the collective goals and call for an increase of effort over time to meet the collective goals, Canada continues to show no willingness to increase its commitment by revising its NDC.

As the Trudeau government turned its attention to domestic implementation, the failure to turn international leadership into domestic action soon began to show. The first step was not encouraging. In spite of its criticism of the Harper government on its inadequate efforts on climate change, and in spite of its commitment to the Paris Climate Agreement, the Trudeau government did not increase the ambition of Canada’s Nationally Determined Contribution (NDC) from the inadequate NDC the previous government had filed before the Paris Agreement was finalized. In spite of agreeing to provisions in the Paris Agreement that recognize the gap between individual commitments and the collective goals and call for an increase of effort over time to meet the collective goals, Canada continues to show no willingness to increase its commitment by revising its NDC.

The second step of the Trudeau government was more encouraging. It was able to negotiate a Pan Canadian Framework on Climate Change with most of the provinces and all territories.[1] The agreement was disappointing to some in that it did not bring all provinces on board, and its commitment would not get Canada all the way to its 2020 or 2030 emission reduction targets under the inadequate NDC filed by the Harper government. Nevertheless, it had the potential to be an important breakthrough in overcoming the past divisions over effective climate mitigation in Canada, and to put Canada on the path to decarbonization.

There is no credible evidence that Canada, as a whole, will benefit from resisting this transition. There are strong indications to the contrary even in the short to medium term, and the combination of the cost of inaction and the economic opportunities associated with action leaves little doubt about the net economic benefits of decarbonization in the long term.[2]

Perhaps the biggest flaw of this effort was the federal government’s failure to clearly position the Pan Canadian Framework, from the start, as an initial step that needed to be strengthened over time. Instead, it has become an inadequate high-water mark to be attacked and whittled down by powerholders who oppose to the decarbonization of Canadian society out of near-sighted self-interest and political opportunism. It is clear that the opposition to the transition comes from those who benefit from the status quo. There is no credible evidence that Canada, as a whole, will benefit from resisting this transition. There are strong indications to the contrary even in the short to medium term, and the combination of the cost of inaction and the economic opportunities associated with action leaves little doubt about the net economic benefits of decarbonization in the long term.[2]

Since it negotiated the Pan Canadian Framework, rather than fully implement it and prepare for the next level of effort, the Trudeau government has taken major steps backward in response to relentless pressure from some provinces and industry sectors. Such steps include the following:

Developing backstop legislation for a key element of the Pan Canadian Framework, the carbon pricing element, that abandons the spirit of the framework by exempting 70 percent of emissions for some industry sectors from the carbon price. This essentially means that most emissions from these sectors are actually not subject to a carbon price at all.[3] Announcing that exemption to some industries will be increased to 80 and 90 percent, further eroding the carbon pricing element of the framework, meaning that even more emissions from these sectors are not subject to a carbon price. Assuming modest efforts to reduce emissions, these sectors may now be exempt from the carbon price all together, without a clear signal that the remainder will be priced in the future.[4] [Read more…]

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