Canada: Torys on Climate Change - September 2010

Recent Developments

North America

California and the Western Climate Initiative takes the spotlight

Regional cap-and-trade initiatives have returned to the spotlight after U.S. Senate leaders indefinitely postponed efforts to pass a comprehensive federal climate change bill. Some recent Senate proposals, such as the bill proposed by John Kerry and Joe Lieberman, would have pre-empted all regional cap-and-trade programs in the United States. Yet in the absence of federal legislation, state and provincial policymakers continue their work to implement regional programs.

Increasingly, however, these policymakers are looking to the November 2 California elections for guidance. These elections will determine the outcome of Proposition 23, a ballot proposition that would suspend implementation of AB32, California's landmark climate change legislation, until unemployment in the state drops below 5.5%, something that has rarely occurred in the last 30 years. Among other things, AB32 requires a reduction in the state's greenhouse gas (GHG) emissions to 1990 levels by 2020 – a target that has driven California's participation in the Western Climate Initiative (WCI), which aims to cap regional GHG emissions by 2012. By suspending implementation of AB32, Proposition 23 would effectively freeze California's participation in the WCI.

This would have ramifications in other WCI jurisdictions. Officially, Ontario remains committed to WCI implementation regardless of California's participation. However, many jurisdictions would be influenced if the WCI's largest member stepped away from the program. For example, New Mexico's Environmental Improvement Board is still considering whether to implement rules under the state's Air Quality Control Act that would allow for WCI participation. And New Mexico, along with Ontario, B.C. and Quebec, and California, are considered to be furthest along in WCI implementation.

In addition, some firms in WCI jurisdictions, anticipating future emissions limits, have purchased Climate Reserve Tonnes, the credits awarded under the Climate Action Reserve for voluntary emission-offset projects, anticipating that WCI jurisdictions like California may allow covered firms to use these credits for compliance purposes.

Without a compliance program in California, demand for these offset credits would likely decrease. The lead up to the November elections has therefore garnered the attention of both policymakers and market participants.


Environment Canada publishes renewable fuel content requirements

Environment Canada recently published new Renewable Fuels Regulations, which will require producers and importers to ensure that all gasoline that they produce in or import into Canada has an average annual volume of renewable fuel content of at least 5%. As a flexibility mechanism, the regulations provide for the use of tradable compliance units, which can be created through certain renewable fuel blending and related practices. The first compliance period will run from December 15, 2010 to December 31, 2012, with annual compliance periods thereafter. In 2011, Environment Canada also intends to set a 2% renewable fuel content requirement for diesel fuel and heating oil, provided that the blended fuels can be demonstrated to be technically feasible in the range of Canadian conditions.

For further information on the current regulations, please see Environment Canada's press release.


Ontario proposes amendments to GHG reporting regulations

On September 10, 2010, the Ontario Ministry of the Environment (MOE) posted for comment amendments to O. Reg. 452/09 (Greenhouse Gas Emissions Reporting) that would simplify the province's reporting requirements and align them with those adopted by the WCI. In particular, the proposed amendments would add nitrogen trifluoride to the list of reportable emissions; allow facilities to omit all emissions from biomass combustion when determining whether they exceed the province's annual reporting threshold; clarify the process by which independent third parties verify a facility's emissions; and allow the MOE Director to request emissions data from facilities that have historically reported to the federal government.

The MOE is accepting comments on the proposal until October 25, 2010. For further information, please see the regulatory proposal.

Ontario to consolidate ozone-depleting substance regulations

On September 10, 2010, the MOE proposed consolidating Ontario's five regulations governing the use, release and disposal of ozone-depleting substances (ODS) into one new regulation under the Environmental Protection Act. The new regulation would revoke and replace the existing O. Reg. 356/90 (Ozone Depleting Substances – General), O. Reg. 189/94 (Refrigerants), O. Reg. 413/94 (Halon Fire Extinguishing Equipment), O. Reg. 717/94 (Solvents) and O. Reg. 718/94 (Sterilants).

The new regulation would also harmonize the provincial ODS requirements with those in the National Action Plan for the Environmental Control of Ozone-Depleting Substances and their Halocarbon Alternatives. Notably, this harmonization would restrict the refilling of halon fire extinguishers, effectively requiring their eventual replacement.

The MOE is accepting comments on the proposal until October 25, 2010. For further information, please see the regulatory proposal.

United States

Solicitor General files brief in climate change nuisance suit

On August 24, the Solicitor General of the United States filed a brief in the U.S. Supreme Court asserting that a decision by the Second Circuit Court of Appeals to recognize a claim of public nuisance caused by the GHG emissions of six electrical utilities should be vacated and remanded for further consideration. The Solicitor General submitted the brief on behalf of the Tennessee Valley Authority, which was a defendant in the Second Circuit case, Connecticut v. American Electric Power Co. The brief contends that, as a matter of judicial self-restraint, federal courts should decline to hear cases alleging that global warming creates a common law nuisance because, without legislative guidance, courts are not well-suited to balance the various interests of the many entities, groups and sectors that are affected by climate change. The brief also asserts that the predicate for the Second Circuit's decision – that common law nuisance claims had not been displaced by U.S. Environmental Protection Agency (EPA) action – is "no longer true" because EPA has now taken action that, beginning on January 2, 2011, will phase in GHG permitting requirements for large final emitters under the Clean Air Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.