The Federal Court has ruled that it cannot compel the federal Minister of the Environment to submit a Climate Change Plan or make regulations under the Kyoto Implementation Act, 2007 to ensure that Canada will meet its obligations under the Kyoto Protocol (Kyoto). This decision confirms the intent in enacting the legislation was to make the Plan and regulations non-justiciable in the courts and subject only to parliamentary review.
On October 20, 2008, the Federal Court dismissed three judicial review applications brought by Friends of the Earth - Les Ami(e)s de la Terre (FOTE). The applications sought to compel the federal government to comply with Canada's Kyoto obligations to reduce greenhouse gas emissions to below 1990 base levels. The court's decision means that environmental groups cannot use the provisions of the Kyoto Protocol Implementation Act, 2007 (KPIA) to compel the government, through the courts, to adopt a particular Climate Change Plan (Plan) or make any climate change regulations. The decision confirms that the Governor in Council (GIC) retains the discretion to decide the manner and extent to which Canada complies with Kyoto.
In June 2007, the KPIA was passed into law by the opposition parties and the majority of the Canadian Senate. The KPIA requires the federal Environment Minister to file a Plan and issue draft and final regulations that would meet Canada's obligations under Article 3, paragraph 1 of Kyoto. The federal government subsequently filed a Plan that, on its face, acknowledged that it would not achieve compliance with Kyoto and, in fact, admitted that the government had no intention of meeting Kyoto's requirements. The Plan expressly stated that strict adherence to Kyoto's emission reduction target for Canada would cause a recession in Canada - an outcome which the government wanted to avoid.
FOTE commenced three judicial review applications seeking declarations that the federal government's Plan fails to comply with the requirements of sections 5, 7, 8, and 9 of KPIA and mandamus orders to force the government to comply. The federal government argued (and the court generally accepted) that the KPIA imposed no justiciable obligations on the government. In its decision, the court considered two questions:
- whether section 5 of the KPIA imposed a justiciable duty on the Minister to prepare and table a Plan that was Kyoto-compliant. The court interpreted this question to mean, "[D]oes the KPIA contemplate judicial review ... where the government declares to Parliament and to Canadians that it will not, for reasons of public policy, meet or attempt to meet the emissions targets established by the Kyoto Protocol?"
- whether sections 7, 8 and 9 of the KPIA impose justiciable duties on the GIC to make, amend or repeal environmental regulations within the stated timelines. The court answered "no" to both questions. Looking at the entire statutory context for these sections of the KPIA and the legal principle of justiciability, the court concluded that Parliament did not intend the "obligations" imposed by sections 5, 7, 8 and 9 of the KPIA to be enforceable by the court.
Section 5 the KPIA - which set out the contents of a Plan - involves a variety of government policy judgments (e.g., the government is required to protect workers in transition and to provide for an equitable distribution of reduction levels) which are so "policy-laden" that they defy an assessment of non-compliance by a court. Moreover, the ongoing review and adjustment of the Plan for scientific and political reasons, the required cooperation with third parties such as provincial authorities and industry (over which the federal government may not have complete control), and the statutory provisions requiring the government to report on the extent to which the Plan is not achieved in any given year, all implicitly acknowledge that Parliament did not intend for the court to adjudicate the content of any Plan.
Similarly, the language of section 7 of the KPIA, imposing a 180-day timeframe for implementing regulations, is permissive, not mandatory. Given that the court cannot dictate the content of any implementing regulation, it is highly unlikely that Parliament intended for the 180-day timeframe to be mandatory and justiciable. Equally, if section 7 of the KPIA does not create a mandatory duty to regulate, it necessarily follows that the government cannot be required to carry out the "ancillary duties of publishing, reporting or consulting on the efficacy of such measures" under sections 8 and 9 of the KPIA.
More generally, the court found that under the scheme of the KPIA, Parliament intended "Parliamentary and public accountability" rather than judicial accountability. The court noted the requirement under the KPIA to "ensure" Kyoto compliance, is achieved through scientific review and reporting to the public and to Parliament, and these are processes which are "mostly not amenable or suited to judicial scrutiny."
Although the court conceded that it may have a limited oversight role in the enforcement of clearly mandatory requirements of the KPIA (e.g., the government's obligation to publish some kind of Plan, but not the Plan's content), this issue was not raised in this case.
Significance for Canadian Industry
This decision is important to Canadian industry because it confirms the discretion of the federal government to make policy on climate change and greenhouse gas emissions which falls short of implementing Canada's Kyoto requirements. Presumably, if the leading Canadian government policy on the implementation of Kyoto – the Plan – can refuse to implement Kyoto without judicial sanction, then so too can all other federal legislative and policy initiatives.
Jack Coop is a partner in the Litigation Department in the firm's Toronto office. The focus of his practice is environmental litigation. Radha Curpen is a partner in the Litigation Department of Osler, Hoskin & Harcourt LLP. She specializes in environmental and regulatory matters. Dan Kirby is a partner in the firm's Environmental Law Group.
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