Cap & Trade 2.0: California Fine Tunes and Extends Cap & Trade Program to 2030

Selina Lee-Andersen

On July 17, 2017, the California legislature passed legislation to extend the state’s cap-and-trade program to 2030 (the program was originally set to expire in 2020). Bill AB 398 received broad bi-partisan support and was passed with a two-thirds majority vote, which is the threshold required to pass tax laws in California. With a super-majority vote, California’s cap-and-trade program will be harder to challenge in court, thus providing policy certainty to market participants and partner jurisdictions including Québec and Ontario. AB 398 was accompanied by two bills: (1) AB 617, which seeks to address local air quality concerns by requiring increased monitoring, mandating upgrades of outdated equipment and technology, and imposing stricter penalties for noncompliance with regulations; and (2) ACA 1, which establishes the Greenhouse Gas Reduction Fund, into which all revenue from the auction or sale of allowances will be deposited (a 2/3 vote of each house will be required to appropriate the funds). The passage of AB 617 was key to winning over the support of key environmental groups. Continue Reading

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada – Implementation Status Update

Stephanie AxmannBryn GraySelina Lee-Andersen

It has been over a year since the federal government announced at the UN Permanent Forum on Indigenous Issues that Canada was now a full and unqualified supporter of UNDRIP and that the federal government would be implementing UNDRIP in Canada (details here). Following that announcement, Canada indicated that it would be carrying out consultations on the implementation of UNDRIP with Aboriginal groups and other stakeholders over the course of several months.

Consultation and other related work remain underway a year later but there have been numerous developments over the past twelve months that will likely inform how Canada implements UNDRIP, including its approach to interpreting the principle of “free, prior and informed consent” (FPIC) articulated in UNDRIP. These developments continue to point to an approach that would see consent as the objective of Aboriginal consultation and not an absolute requirement. Below is our round-up of notable federal UNDRIP initiatives that have taken place over the course of the past year, including the latest Principles released in July, as well as an update with respect to British Columbia’s new NDP government. Continue Reading

CLARIFYING THE ROLE OF REGULATORY TRIBUNALS IN CONSULTATION – CANADA’S HIGHEST COURT RELEASES TWO KEY ABORIGINAL CONSULTATION DECISIONS

Bryn GrayStephanie AxmannLjiljana StanicDaniel Goudge

On July 26, 2017, the Supreme Court of Canada (SCC) released its decisions in Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al. These appeals, which were heard on November 30, 2016 and previously discussed here, relate to the permissible scope of Crown reliance on regulatory processes and proponents to discharge the duty to consult and the role of the National Energy Board (NEB) and other regulatory tribunals in Aboriginal consultation and accommodation. Continue Reading

From Commitment to Action: New Proposed Regulations to Reduce Emissions in Canada’s Oil and Gas Industry

Selina Lee-AndersenKirsten Marsh

On May 27, 2017, the federal government published the proposed Regulations Respecting Reduction in the Release of Methane and Certain Volatile Organic Compounds (Upstream Oil and Gas Sector) (the Proposed Regulations) in the Canada Gazette Part I. The Proposed Regulations are designed to meet the federal government’s domestic (under the Pan-Canadian Framework on Clean Growth and Climate Change) and international commitments (under the Paris Agreement) to reduce methane emissions by 40–45% by 2025.  In particular, the Proposed Regulations seek to introduce control measures (i.e. facility and equipment level standards) to reduce fugitive and venting emissions of hydrocarbons, including methane, from the oil and gas sector. Depending on the standard adopted, the Proposed Regulations would come into force on January 1, 2020 or January 1, 2023. Both Alberta and British Columbia (BC) have also made matching commitments under their climate change strategies to reduce methane emissions in the oil and gas sector by 45% by 2025. Continue Reading

To Regulate or Not to Regulate: BC Environmental Appeal Board Confirms that Provincial and Municipal Laws Designed to Regulate Air Emissions Do Not Impede on Federal Jurisdiction

Paul R. CassidySelina Lee-AndersenElizabeth Steele

A decision released by the British Columbia Environmental Appeal Board (EAB) on May 12, 2017 has clarified the relationship between federal lands and provincial environmental legislation and confirmed Metro Vancouver’s jurisdiction to regulate air contaminants from a facility located on federal lands. Decision Nos. 2016-EMA-175(b) & 2016-EMA-G08 addressed  the constitutional question raised by Harvest Fraser Richmond Organics (Harvest), which had challenged the jurisdiction of the District Director of the Greater Vancouver Regional District (also known as Metro Vancouver) to regulate the discharge of air contaminants from Harvest’s composting anaerobic digester and combined heat and power facility (the Facility), which is located on federal land leased from the Vancouver Fraser Port Authority (VPA). Continue Reading

Giving the Coast a Wide Berth: Federal Government Introduces Proposed Oil Tanker Moratorium Act

Selina Lee-Andersen

On May 12, 2017, the federal Minister of Transport introduced Bill C-48 into Parliament. Bill C-48, also known as the Oil Tanker Moratorium Act (the Act), seeks to implement the proposed moratorium on crude oil tankers on the northern part of British Columbia’s (BC) coast that was announced by the federal government in November 2016. The proposed moratorium would prohibit oil tankers that are carrying more than 12,500 tonnes of crude oil or persistent oil as cargo from stopping, or unloading crude oil or persistent oil, at ports or marine installations located along BC’s north coast from the northern tip of Vancouver Island to the Alaska border. Specifically, the proposed moratorium area extends from the Canada/United States border in the north, down to the point on BC’s mainland adjacent to the northern tip of Vancouver Island, and also includes Haida Gwaii. Vessels carrying less than 12,500 metric tonnes of crude or persistent oil as cargo will continue to be permitted in the moratorium area to ensure northern communities can receive critical shipments of heating oils and other products. Continue Reading

California Dreaming: The Golden State Considers Overhauling its Cap & Trade System

Selina Lee-Andersen

California continues to blaze a climate change policy trail in pursuit of a state-of-the-art carbon pricing mechanism. Bill SB 775 (California Global Warming Solutions Act of 2006: Market-based Compliance Mechanisms) was introduced into the California Senate on May 2, 2017, and follows the introduction in February 2017 of SB 584 (which would require 100% of the state’s electricity to come from renewable sources by 2045) and the passage of SB 32 in 2016 (which, beyond the current emissions reduction target of returning to 1990 emission levels by 2020, mandates a reduction of an additional 40% in emissions by 2030). Continue Reading

Expert Panel Recommends Significant Changes to Canada’s Environmental Assessment Regime

Joanna RosengartenBryn Gray

On April 5, 2017, Environment and Climate Change Canada released the report of an external Expert Panel that was established in August 2016 to review the scope and process of federal environmental assessments under the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”). The Expert Panel’s Report contains numerous recommendations which, if implemented, would result in a fundamentally different federal environmental assessment (“EA”) process to the one that is currently in place.

This review stemmed from an election platform commitment of the Trudeau government and included a review of a number of changes introduced by the previous federal government in 2012 to Canada’s EA process, which, among other things, reduced the number of projects subject to federal EAs. From September 2016 until mid-December 2016, the Expert Panel held in-person and online “engagement events” across Canada in various cities. The Expert Panel noted in its report that the views it heard about the federal EA process ranged from support to all-out opposition.  The Panel concluded that the current EA process is “incapable of resolving these disparate points of view” and that Canada needs to “improve the way we plan for development in our country.”

The Expert Panel sets out a number of recommendations, some of which would significantly alter the current approach to federal EAs. Such recommendations include: Continue Reading

Change on the Horizon for Aboriginal Consultation and Involvement in Mining Projects

Bryn GrayDaniel Goudge

The rapidly evolving legal landscape for Aboriginal consultation and involvement in mining and other resource development projects in Canada is likely to see a number of significant changes in 2017. In addition to three anticipated Supreme Court of Canada decisions on the duty to consult, 2017 will likely bring legislative and policy changes to the nature and extent of expected Aboriginal involvement in the assessment, permitting and monitoring of resource development projects that require federal approval. Also expect changes to federal and certain provincial Aboriginal consultation policies, as well as the implementation of the Extractive Sector Transparency Measures Act for payments to Aboriginal groups.

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Fueling a Lower Carbon Future: Environment and Climate Change Canada Releases Discussion Paper for a Clean Fuel Standard

Selina Lee-Andersen

In November 2016, Environment and Climate Change Canada (ECCC) announced that it would be kicking off a process to develop a clean fuel standard (CFS) in support of Canada’s commitment to meet its greenhouse gas (GHG) emissions reduction target of 30% below 2005 levels by 2030. The CFS, which is included as part of the Pan-Canadian Framework on Clean Growth and Climate Change released in December 2016, would require reductions in the carbon footprint of fuels supplied in Canada, based on a lifecycle analysis. On February 24, 2017, ECCC released a discussion paper for consultation on the proposed new CFS. Continue Reading

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