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To amend or not to amend – Why Bill C-12 should be passed even though it could be better

The Senate Standing Committee on Energy, Environment and Natural Resources has been considering Bill C-12, the Canadian Net Zero Emissions Accountability Act
June 16, 2021

On June 9th I appeared as a witness before the Senate Energy, Environment and Natural Resource Committee to speak about Bill C-12, the Canadian Net-Zero Emissions Accountability Act. We have been advocating for legislation of this type since before 2015, when West Coast Environmental Law published A Carbon Budget for Canada at the Paris Climate Conference, and we’ve been pressing for Bill C-12 to be strengthened since it was first introduced in November of last year.

I think my testimony went pretty well (feel free to watch and let me know), but at the moment I still feel conflicted about what occurred when the Committee Chair, Senator Paul Massicotte, asked me and the other three witnesses a question:

Most of you are recommending amendments, but if you look at the real-life situation we have, it may very well be that we only get [the Bill] next week. And given that we customarily expect the House of Commons to go on holiday late next week, and they may not be around to look at any amendments, just a quick answer from you: should we therefore wait for the fall to complete our analysis and give the House of Commons time to consider our amendments, or should we hold our nose and accept the Bill as being presented now? Each one of you – would you wait or would you do it?

Ouch. If I was being an idealist, I would have said the Bill falls short of the gold standard and should be strengthened. But instead I said that yes, they should pass the Bill (although I hedged my answer a bit by also asking them to re-evaluate the Act in the near future to see if it’s working).

To understand why I felt conflicted, you need a bit of history.

Climate accountability (or lack thereof) in Canada

In 2008, all of the parties of the United Kingdom Parliament joined together to pass a new Climate Change Act. The Act, which has been administered by both Labour and Conservative governments, has been incredibly effective, with the country’s emissions dropping by 45.2% relative to 1990 levels – carbon pollution levels not seen since the late 1890s.

The Act in essence adopted modified versions of the types of accountability (checks and balances) that we expect for sound financial planning – budgets, audits, generally accepted accounting principles, etc. The British government, having set long-term targets, was required to set three five-year “carbon budgets” stretching five years into the future, with an expert committee charged with both advising government and reporting regularly on the government’s progress towards staying within its ever-shrinking budgets and the long-term target.

At the time, Canada’s Parliament was experimenting with its own versions of climate accountability laws. In 2007, opposition parties teamed up to force through the Kyoto Protocol Implementation Act, introduced by Liberal MP Pablo Rodriguez, which charged government with reporting regularly on its progress to achieving a commitment Canada made in Japan to reduce its greenhouse gas emissions by 6% relative to 1990 levels by 2012.

Steven Harper’s government pushed back on the Act by repeatedly issuing reports admitting that it would not achieve the target, before finally repealing the Act in 2012. This early attempt at climate legislation is a cautionary tale about the limits of climate accountability laws under a government committed to ignoring an Act’s requirements.

Parliament also considered a Climate Change Accountability Act, originally sponsored by NDP Leader Jack Layton, which would have set targets for Canada going beyond 2012. It was passed by the House of Commons (by opposition parties again, with the Conservatives opposed) in 2008, but did not pass the Senate before the 2008 election. It was then passed by the House of Commons again after the election in 2010, but was controversially defeated in the Senate.

With the exception of the ineffective Kyoto Protocol Implementation Act from 2007 to 2012, Canada has not had any legal structures around setting climate targets or plans to achieve them.

In 2015, with a newly elected Liberal government that promised ambitious climate leadership, I tried to re-ignite interest in a Canadian accountability law with our report, A Carbon Budget for Canada: A Collaborative Framework for Federal-Provincial Climate Leadership. I argued that a Canadian climate accountability law based on the UK carbon budget model, as well as the many Canadian laws that facilitate federal-provincial cooperation (ie. laws dealing with health care and endangered species), could create a structure for federal-provincial cooperation aimed at reducing greenhouse gas emissions. Initial interest from some government staff quickly cooled.

However, we joined forces with others in the environmental community to put climate accountability laws back on the political agenda, and in the 2019 election all the major political parties, except for the Conservative Party of Canada, made promises related to climate accountability. Notably, the Liberal Party of Canada committed to set a net-zero-by-2050 target and to “appoint a group of experts to help us chart a path forward, and we’ll legislate five-year targets along the way.”

Since then, our coalition has continued to press the government to live up to its promise of climate action. We released a report, A New Canadian Climate Accountability Act in 2020, and invited our supporters to write to their MPs calling for action on climate change. And we have been successful – sort of.

Is Bill C-12 any good?

When Environment Minister Jonathan Wilkinson introduced Bill C-12 in November 2020, we were pretty excited. But as we read the bill, we lost some of our enthusiasm. As we wrote at the time:

This is the first time that a sitting Canadian government has introduced a law setting out a process to achieve its climate goals. … And that in itself is cause for celebration.

That said, the bill falls short of the five pillars of a leading-edge climate accountability act we identified with environmental groups across the country, calling into question whether Bill C-12 will fully achieve its promise. …In a nutshell, the Canadian bill doesn’t kick into high gear until 2030 and is less science-based and less transparent than similar laws in the UK and New Zealand.

Countless individuals and organizations across Canada pressed the government to improve the Bill, and an agreement reached between the NDP and the Liberals resulted in some very real improvements. When I spoke to the Senate Committee, I compared what Bill C-12 does to the types of financial accountability we expect from our governments:

[Bill] C-12 puts in place regular targets, set ten years in advance. That’s like using budgets to set financial goals.

It requires plans “for achieving” the targets – that’s using budgets to describe a plan of who is responsible for spending. Although I will note that it is less clear in Bill C-12 than in the UK or New Zealand climate laws that the plans actually need to add up to the target – a disturbing weakness of the Bill.

There are clear requirements for the setting of targets and plans. They must be set with the benefit of expert advice and must consider best scientific information. Plans must include a description of measures to be taken and modelling of the reductions they will result in. This is all equivalent to the requirement to follow Generally Accepted Accounting Principles in financial planning.

I do note that we are very disappointed not to see requirements to model the key cooperative provincial measures that the government is relying on to achieve the targets or requirements to release the assumptions and methodology for the modelling that is being done.

We also have regular reporting on progress – although considerably less frequently after 2030 – and regular independent reviews by the Advisory Body and the Commissioner for Environment and Sustainable Development.

As is clear from my testimony, as well as from our written submissions to the Senate Committee, we see much to like in Bill C-12, but also much that could be improved. The glass is fuller than when the Bill was introduced in November 2020, but it still falls short of the mark.

So why recommend that it pass?Andrew Gage appears (via Zoom) before the Senate ENEV Committee

So, given that the Bill could – and should – be stronger, why did I tell Senator Massicotte that the Senate should pass it, if necessary without amendments?

As the Senator noted in his question, we are down to a time crunch. This squeeze is the result of delays in the House of Commons (the reasons for which are not fully clear). The Bill was introduced in November, but languished at second reading for months before finally being referred to the House of Commons Environment Committee in May. As I write this, the Senate is still conducting its pre-study of Bill C-12 and has not yet formally received the Bill from the House of Commons, even though the spring sitting of the Senate will end in a little more than a week.

Theoretically, if the Senate does not vote on Bill C-12 before its summer break, the Bill cannot pass until the Senate resumes sitting in September. If the Senate does vote on C-12 but introduces new amendments, then the House of Commons will need to consider the amendments, which (since it is also about to rise for its summer break) may not happen until the fall.

Perhaps the greatest risk is if the House rejects the Senate’s amendments. If Senators pass amendments to the Bill that MPs think go too far, they can send a message to the Senate saying so. That’s what happened with Bill C-69 in 2019. Every message between the House and the Senate about amendments takes days, maybe even weeks, further delaying the passage of C-12.

In either case, the fact that we have a minority government means that there is a risk of a fall election. Once an election is called, any bill that has not yet passed dies (the official term is “dies on the Order Paper”), meaning that C-12 would also die. A newly elected government, assuming that it supported a climate accountability law, would need to introduce a new bill and start the Parliamentary process all over again. Not only can we not afford to wait to act on climate, but we also have little assurance that a new climate bill would be any stronger than C-12.

Anything less than swift passage of Bill C-12 through the Senate will result in a delay of at least a few months and possibly much longer. While I think it’s possible to oversell the risks of that delay, as I told the Senate Committee:

When you haven’t learned to ride a bike at all, the first step is to get on one and learn how to pedal. The unprecedented climate crisis has been ignored too long, and if trying to make the Bill perfect is going to delay it, that’s time we don’t have.

We made a judgement call that it is more important to get the good elements of Bill C-12 in place and start pushing the government to do them well, than it is to delay the Bill in hopes of getting something closer to perfect.

I feel genuinely conflicted. The reasons for pressing on are clear. On the other hand, calling on the Senate to push the Bill through without amendments makes it appear that the government has passed legislation which satisfies environmental organizations, that it is the “world class” law that we were promised. And maybe a delay of a few months would buy the Senate time to improve Bill C-12 further, enacting a stronger law.

However, by moving ahead we have an opportunity to press the Canadian government to deliver credible climate plans and real accountability, perhaps going beyond what is strictly required by the Bill. Moreover, due to a last-minute amendment introduced by the Bloc Québécois, supported by the Conservative Party and the NDP (and opposed by the Liberals), in five years a committee of Parliament will need to be struck to examine how the Act is working, and what could be done to improve it. By that time, it will hopefully be clear how the Act is and is not working as promised.

In the end, after analyzing Bill C-12 as amended by the House of Commons, we concluded that while it does not guarantee the climate ambition and true accountability Canada needs, the Bill does allow for it. At the end of the day, we know that you cannot legislate political or institutional will, and the success of all our environmental laws depends on strong initial implementation and capacity. So we have chosen to focus our efforts on ensuring that Bill C-12 is implemented in a manner that lives up to its promise.

Conclusion

There’s a joke that press releases by environmental organizations always begin with “A good first step, but …” But I don’t recall ever feeling quite so torn about whether to support a climate law or not. Bill C-12 falls short of its promise, but it does have the potential – the rules, expert advice and accountability – that could see Canada finally meeting its promises on climate change.

Whether Canada delivers on this potential remains to be seen.

Author: 
Andrew Gage - Staff Lawyer