Canada: NDP's 'Climate Change Accountability Act' Bill Passes in the House of Commons

On May 5, 2010, the House of Commons passed Bill C- 311, the Climate Change Accountability Act (the "Act"), requiring that the Government of Canada set science-based Greenhouse Gas ("GHG") reduction targets that are more aggressive than any proposed by Canada's ruling Conservative party. The Act passed its third reading in the House by a slim majority of 149 to 136.

Bill C-311 is an NDP-sponsored private members bill, which saw no support from the Conservative minority in the House, who voted unanimously against it. Each of the votes in favour came from opposition MPs, who joined together for the purpose of passing this legislation. In reviewing the bill in the Standing Committee on the Environment and Sustainable Development, the Liberals indicated that the bill was incomplete and should have been amended by the NDP to resolve problems raised in the review. Notwithstanding their concern with the bill, they supported the bill as a call on the government to come up with a plan to address climate change. The passage of the bill demonstrated that although the Conservative Government is not ready to abandon the approach of "waiting to see" what pending United States' legislation will require, the opposition, fuelled in part by public pressure, is ready to move forward.

Even though Bill C-311 passed in the House of Commons, it contains a number of challenging provisions that were not amended, even in the face of recommendations of expert witnesses at the Standing Committee. For instance, the bill requires that regulations to meet the targets set out in the bill be made on or before December 31, 2009. While no such regulations have been made yet, the bill was passed on May 5, 2010, notwithstanding this unachievable provision. Experts also noted that there would be serious challenges to meeting the ambitious reduction targets within the stipulated time frames required under the bill.

Whether the Act will become law is now reliant upon the Senate. The same bill was passed by the House in 2008, but died in the Senate when the last election was called in the fall of 2008. It is questionable whether Bill C-311 will make it through this time around. Although there is pressure on the Conservative senators to block the bill in the Senate, they do not have a majority and may not be able to block the bill if opposition party senators show support.

The bill itself sets ambitious GHG reduction targets of 25% below 1990 levels by the year 2020 and 80% below 1990 levels by the year 2050. This is a significantly steeper reduction than is required under Canada's Copenhagen commitment of 17% below 2005 levels. There are no mechanisms or plans set out in the bill to achieve these targets, other than the requirement to make regulations to meet the targets.

However, in the interim, the Minister of the Environment is required, within six months of royal assent and at fiveyear intervals beginning in 2015, to prepare and present to Parliament an interim plan, which establishes an emission target for each year, specifies scientific, economic and technological evidence used in the establishment of each target, and demonstrates the consistency of each target with the UNFCCC's ultimate objective of preventing dangerous anthropogenic interference with the climate system and with Parliament's commitment to the Kyoto Protocol.

The Act also sets out an array of other obligations to ensure targets are met.

• The Governor in Council is required by the Act to ensure the Government meets its reduction commitments by ensuring that its policy, internationally and domestically, is fully consistent with its commitments, and making, repealing, or amending regulations under this Act or any other. Obviously, the Government's commitment to reduce emissions by 17% of 2005 levels will not be consistent with the commitments set out in the Act.
• The Minister is required to prepare a statement each year, which sets out the measures taken by the Government that year, and the reductions that can reasonably be expected to result from those measures, expressed for each of the following 10 years. Government measures include those taken in respect of regulated emission limits and performance standards, market-based mechanisms (such as emissions trading or offsets), spending and fiscal incentives, and cooperation and agreements with other levels of government.
• Following the release of each target plan and Ministerial statement, a number of obligations are placed on the National Round Table on the Environment and Economy (a body created by the National Round Table on the Environment and the Economy Act, S.C. 1993, c. 31), to engage in research and analysis, and to advise the Minister.
• At least once every two years, the Commissioner of the Environment and Sustainable Development is required to prepare a report that includes an analysis of Canada's progress, as well as observations and recommendations.

Although much of the detail is left to be determined by regulations made by the Governor in Council, the enforcement mechanism contained within the Act is strong and should be noted.

The offences and penalties section under the Act allows for a fine or imprisonment for any contravention of a regulation made under the Act, and includes a provision to charge any officer, director or agent of the corporation that directed, authorized, assented to, or acquiesced or participated in the contravention.

The larger questions may be how to practically achieve compliance with the stringent reduction requirements of the Act and how to compel the Conservative minority Government to abide by the Act and implement it. The Conservatives have voiced concerns that the passing of this bill into law could have disastrous effects on the Canadian economy, including the loss of competitiveness of Canadian industry, the loss of jobs, increased energy costs and dramatic increases in the price of gasoline. Experts have sited the problem of carbon leakage, where jobs and investment will simply go to jurisdictions with no or less stringent carbon emission standards. This concern with carbon leakage was a key reason that the U.S. would not join Kyoto without the participation of China and India.

If this bill passes in the Senate, the Conservative minority Government may be obligated to proceed with detailed climate change regulations, regardless of whether the U.S. proceeds with legislation or not. Such regulations would need to set out emission reductions and a cap and trade system that will satisfy the opposition and convince it that Canada is moving in the right direction. If this could be achieved, the Conservatives may then be able to convince the opposition to support amending the Act to adjust the emission reduction targets to ensure that the Government can in fact comply with its own legislation. Otherwise, the coming into force of the Act would very likely have undesired consequences, since it would be difficult, if not impossible, to achieve the legislated targets without such amendments.

It remains to be seen whether the passing of this bill in the House of Commons will result in anything more than an interesting political occurrence. However, it does put some pressure on the Conservative minority Government to begin planning what they will do if this bill does indeed pass the Senate.

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