Canada Sued for Ignoring Its Own Kyoto Protocol Law

Friends of the Earth Canada is suing the Conservative government led by Prime Minister Stephen Harper for following a strategy to reduce greenhouse gases that fails to meet Canada's obligations under the Kyoto Protocol.

The lawsuit is the first in the world to seek enforcement of the protocol, an international treaty ratified by 180 countries, including Canada.

Heard in Federal Court in Toronto, the legal action could force the government to create a new plan to reduce Canada's greenhouse gases six percent below 1990 levels, a legally binding target the current government says the country cannot meet.

The coal-fired Lambton power plant emits greenhouse gases from its location on the St. Clair River south of Sarnia, Ontario. It burns 640 tons of coal per hour. (Photo courtesy Ontario Power Generation)

Pro-bono lawyers from Paliare Roland Barristers and Ecojustice told the court today that the government is in violation of the Kyoto Protocol Implementation Act, or KPIA, a federal law enacted on June 22, 2007.

"The case is about defending the fundamental principle that the government must be accountable and comply with the law," said Ecojustice lawyer Hugh Wilkins. "The government cannot pick and choose which laws to obey. The law is the law."

The KPIA requires that, "Within 60 days after this Act comes into force and not later than May 31 of every year thereafter until 2013, the Minister [of the Environment] shall prepare a Climate Change Plan" that describes measures to be taken to ensure that Canada meets its obligations under the protocol.

Environment Minister John Baird has not prepared such a plan.

Under the KPIA, the Cabinet was required to pass binding, final regulations in December 2007, but they have not.

"Put simply, Canada has failed to comply with the law," said lawyer Chris Paliare, who is arguing the case. "We are asking the court to declare that the government is bound by the law and must be held accountable to the will of Parliament."

Of the 38 industrialized nations with binding international targets under the Kyoto Protocol, Canada is the only country that has indicated that it does not intend to meet its obligations.

"While other industrialized countries actively work to reduce greenhouse gas emissions and fight climate change, our government has offered pollution holidays for emitters for decades to come," said Beatrice Olivastri, chief executive of Friends of the Earth Canada.

"This government has broken the law," she said, "and, as Canadian citizens, we have both a moral and legal imperative to insist on enforcement of our own laws on climate action."

Canadian Prime Minister Stephen Harper (Photo credit unknown)

The lawsuit seeks a declaration from the court that the government has not complied with the KPIA and an order requiring it to do so.

Under the Liberal government of Jean Chretien, Canada ratified the Kyoto Protocol on December 17, 2002, taking on the legal commitment to reduce emissions by six percent below 1990 levels by the end of 2012.

But when the present Harper government took office in February 2006, Canada backed away from its Kyoto Protocol commitment.

The country is unable to achieve this level of greenhouse gas reduction, then Environment Minister Rona Ambrose said at a 2006 United Nations meeting in Nairobi, Kenya.

"We recognized that it was time to face up to our challenges in the most Canadian way - to be forthright with Canadians and our international partners about the results of Canada's previous efforts, and to be realistic on the progress we could make by 2012," Ambrose said.

On April 26, 2007, the Harper government announced its Turning the Corner strategy, which set greenhouse gas reduction targets to a different target - 20 percent below 2006 levels by 2020.

Canadian Environment Minister John Baird at the UN climate conference in Bali, Indonesia. December 2007. (Photo courtesy Earth Negotiations Bulletin)

Meeting this goal would leave Canada 39 percent off target with the Kyoto Protocol in 2012 and would not achieve the Kyoto target until 2025, if at all, says Olivastri.

Olivastri says, "The people of Canada through their elected representatives made the Kyoto Protocol law in Canada when they passed the KPIA, so in FOE's estimate, Canadian law must be enforced. This case is about whether the government will enforce its own laws."

Federal lawyers have argued in a legal brief on the case that the adequacy of the Turning the Corner strategy is "not justiciable." They hold that Parliament, not the courts, must resolve the issue.

The Federal Court is expected to rule on the case this summer or early fall.

In the meantime, the Harper Government is proceeding down its own path.

On March 10, Baird detailed the Turning the Corner plan to reduce greenhouse gases 20 percent by 2020 - with carbon trading, offsets, a technology fund, and a program that gives credit for early action.

By capping emissions and allowing exchanges to sell rights to emit greenhouse gases in the future, carbon trading enables industries to manage their emissions risks at the lowest cost while creating incentives for technological innovation.

Canada's cap-and-trade program is being carried out by the Montreal Climate Exchange in collaboration with the Chicago Climate Exchange, which has been operating since 2003.

Luc Bertrand, chairman of the Montreal Climate Exchange, said the federal government’s air emissions regulatory framework meets the minimum conditions for the creation of a futures market.

On May 30, Baird and other officials celebrated the opening of the Montreal Climate Exchange.

"Carbon trading and the establishment of a market price on carbon are key parts of our Turning the Corner plan to cut Canada's greenhouse gases an absolute 20 percent by 2020," said Baird at the opening. "Clearly, our government's action to fight climate change is working hand in hand with groups like the Montreal Climate Exchange."

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