Canadian “childrens'” climate change case in La Rose v. Canada summarily dismissed in Federal Court

As a further update to previous posts on climate change Charter claims, we note that Justice Manson of the Federal Court of Canada recently dismissed on a summary basis one of the Canadian childrens’ climate change cases in La Rose v. Canada on the basis that the matter was non-justiciable (not appropriate for judicial determination) and did not disclose a reasonable cause of action either under section 7 of the Charter (undue breadth and diffuse nature of the claim) or under section 15 (failure to disclose a distinction on the basis of state action or law).

The Judge said:

“[T]he diffuse nature of the claim that targets all conduct leading to GHG emissions cannot be characterized in any way other than to suggest the Plaintiffs’ are seeking judicial involvement in Canada’s overall policy response to climate change.”

Some of the reasoning echoes comments we have made in earlier blogs. Although the decision appears definitive, I would not expect the parties behind this action to throw in the towel now. We can expect appeals to higher courts.

The Paris Agreement does not contemplate “national goals” of blocking oil and gas projects

[Note to readers: this is a considerably revised version of my previous post. It reminds us that cancelling projects such as the Teck $20 B Frontier Project, which has just been “withdrawn,” will result in no savings in global GHG emissions. Canada suffers without saving the planet.]

Politicians and activists, with an obsessive focus upon oil and gas extraction, are moving to cripple Canada’s prosperity by forbidding new projects, in order, they say, to meet “climate goals.” But they claim not, indeed, to be harming Canada, for, according to their calculations, an energy transition is just around the corner, the result of the world uniformly reducing and eliminating the supply of fossil fuels. One proponent, SFU professor Mark Jaccard, said in the Globe and Mail that prohibiting new pipelines and oil sands expansion is “essential to achiev[ing] national and global climate goals.”

But do “global climate goals” really require Canada to abruptly cap its extraction of fossil fuels? Definitely not. Concentrating on supply, proponents of the cap on new projects undertake a simplistic analysis that lead them to create goals of their own making, out of sync with actual market demand for what is a mobile commodity, and out of sync with international obligations. By calling the cap a “national climate goal,” they serve to disconnect Canada from world energy needs, creating instead only artificial, local reductions that fail to reduce global emissions.

Let us look at this more closely. What are the proper global climate goals to which Canada must respond? As befitting the almost insoluble collective action problem of global mitigation, the Paris Agreement of 2015 contains no reduction standards for individual nations. The Agreement simply pleads for global peaking of emissions as “soon as possible.” Developed countries, including Canada, are encouraged to set their own “economy-wide absolute emission reduction targets,” but these are to be created outside the Agreement by each nation for itself.

Paris then, is not really a legal framework. It is merely aspirational. From this shaky footing, different nations have followed their own national interests. Developing countries are pursuing prosperity through fossil fuels. The largest emitting nations are failing to prescribe for themselves any domestic reduction measures whatsoever. Producing nations (other than Canada) continue to produce as before.

Paris reflects the reality that an abrupt transition is not doable. Presently, 81% of world primary energy consumption is provided by fossil fuels, the same amount as in 1991. Vaclav Smil, professor emeritus of the University of Manitoba, has concluded that it is a grand delusion to think that decarbonization can be achieved over the short run. Infrastructure changes take decades. Bjorn Lomborg, quoting the International Energy Agency, has reported that even if every promised national reduction target in Paris is achieved by 2040, fossil fuels will still deliver 74% of total energy.

Deep down, activists too, realize that the world is not fast approaching an energy transition. After all, why would they lobby government to block new projects if the only hardship suffered is that of private investors being stuck with the “stranded assets” of the projects upon transition?

In a world therefore where fossil fuels continue to be used, is it possible that Canada will miss emission targets by constructing new projects?

First, as to fossil fuel exports (which will form the lion’s share of use), international demand will be supplied either by Canada or by some other producing nation. Responsibility for combustion falls upon the consuming nation. Canada can therefore claim no credit for lowering world emissions by halting exports. And indeed, many have argued that Canada can help lower global emissions by exporting oil and gas, which have a lower carbon profile than say, wood or coal.

Second, as to domestic combustion of newly extracted fossil fuels, demand will continue until something else is invented, developed, and commercialized at sufficient scale to replace it. Thus, reductions will not be made by strangling new domestic supply.

Therefore, neither exports nor domestic use will increase emissions. But what of “upstream emissions,” that is, the emissions combusted in the extraction, refining, and transportation for new energy projects? For, according to Professor Jaccard, upstream emissions for the Trans Mountain Pipeline project would amount to the equivalent of “adding 2.2 million average emission cars to Canada’s existing vehicle stock.”

But once again, other producing nations will step in to meet demand if Canada doesn’t. So, although it might be argued that Canada has actually added new “national emissions” (but what new aerospace or car factory won’t do that as well?) the one clear intention of Paris – to decrease net global emissions – is not being met. As a “national goal,” protecting against upstream emissions is a false one. It simply leads to a ledger adjustment, a case of double-counting overall, of no moment in saving the planet.

To get real reductions, if mitigation is the key to climate change, Canada will have to do something other than blocking prosperity-building oil and gas projects.

The Paris Agreement misunderstood: We do not have to shoot ourselves in the foot with “national goals” of halting oil and gas projects

Canadian politicians and activists are moving to cripple Canada’s energy prosperity upon a false belief that the world is uniformly reducing the market for fossil fuels. To them, an energy transition is just around the corner, the result of “climate targets” on the supply of fossil fuels. For example, Green Party leader Elizabeth May said in a recent Globe and Mail opinion piece that, “[i]t would be very obvious that [to meet climate targets] we cannot approve any new fossil fuel projects – anywhere in Canada.” SFU professor Mark Jaccard argued previously in the Globe and Mail that prohibiting new pipelines and oil sands expansion is “essential to achieve national and global climate goals.” The Liberal government has accepted this advice in the past and will be pressed to do so again in the future.

But do “global” and “national” climate goals require Canada to abruptly cap its extraction of fossil fuels? Certainly not. These activists provide a simplistic analysis that leads them to create goals of their own not at all in accord with international realities and obligations. By creating national goals that disconnect Canada from world energy needs, they create artificial goals, falsely claiming that they are saving the planet. They fail in their attempt to nationalize an international problem.

Let us examine this more closely. What are the proper global climate goals to which Canada must respond? As befitting an almost insoluble collective action problem, and what has also been described as a super wicked problem, there are no international reduction standards for individual nations under the Paris Agreement of 2015 and only the vaguest of aspirations. Paris simply calls for global peaking of emissions as “soon as possible” to keep global average temperature “well below 2% C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5% C.” The agreement then leaves it up to individual countries to support that objective with voluntary, self-created “domestic mitigation measures.”

From that foundation different nations have gone their own way meeting their own national interests. Developing countries are pursuing their prosperity through fossil fuels  – as they are entitled to do under Paris. The largest emitting nations are failing to prescribe for themselves any domestic mitigation measures. Demand continues unabated and world markets continue to flourish.

International agreements reflect reality. The Paris Agreement was constructed on the reality that an abrupt transition is not remotely workable and that many of the world’s nations desire to pursue their prosperity. Presently, 81% of world primary energy consumption is provided by fossil fuels, the same amount as in 1991. Vaclav Smil, professor emeritus of the University of Manitoba, has concluded it is a grand delusion to think that decarbonization can be achieved in just a few decades. Bjorn Lomborg, quoting the International Energy Agency, has reported that even if every promised national reduction target in the Paris Agreement is achieved by 2040, fossil fuels will still deliver 74% of total energy.

In a world where fossil fuels continue to flow across borders, where does that leave Canadian national mitigation goals? First, as to fossil fuel exports (and it certainly seems many of the new projects will extract oil for export), international demands for fossil fuels will be supplied either by Canada or by some other producing nation. Responsibility for the emissions of combustion lies with the consuming nation, leaving Canada without any say in their affairs whatsoever.

Second, domestic demand in Canada will continue until something else is invented, developed, and commercialized at sufficient scale to replace it. Until that happens, we might as well supply ourselves. Emissions for combustion will be the same whether we supply it or someone else does. If the private sector is willing to bear the “losses” following upon any energy transition, whether domestically or internationally, they should be allowed to do so.

But what of the so-called “upstream emissions” – emissions combusted in the extraction, refining and transportation processes – for new projects that some activists insist are a reality? According to the report of Professor Jaccard and a colleague, upstream emissions would amount to 8.8 MT CO2e per year for the establishment of the Trans Mountain Pipeline project alone, the equivalent, they say, of adding 2.2 million average emission cars to Canada’s existing vehicle stock. But these do not represent increased global emissions, for they will exist at any rate if Canada does not produce them. As a function of “national goals,” upstream emissions are just simply a case of double-counting, again of no moment to saving the planet.

There is thus no proof that halting Canada’s fossil fuel projects will reduce global emissions. Canadian national goals cannot easily be crafted to meet global aspirations and need to be re-thought. In the meantime, it is best to recognize the failure in the focus on the national to the exclusion of the international.