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B.C.'s climate laws should not be overseen by courts, claim court documents

In what could turn into a precedent-setting case, government lawyers claim B.C.'s legislature and public should hold the Ministry of Environment and Climate Change Strategy accountable for its emission reduction targets — not the courts.
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A worker welds a section of the Coastal GasLink pipeline near Vanderhoof. An application for judicial review says the B.C. government has not properly laid out how its plan to reduce GHG emissions will account for new natural gas production facilities, like LNG Canada.

The B.C. government is calling on the province’s top court to throw out a case claiming it failed to detail how it will meet its greenhouse gas emissions targets.

The request for judicial review, filed by the Sierra Club in a B.C. Supreme Court on March 30, 2022, alleged the Ministry of Environment and Climate Change Strategy failed in its legal duty to disclose how it planned to reduce emissions 16 per cent below 2007 levels by 2025. 

The Sierra Club's original court filing took aim at the province’s CleanBC Roadmap to 2030, released last year as part of the government's plan to cut emissions by 40 per cent by 2030. It also claimed detailed plans showing how the province hopes to meet its emission reduction targets in 2040 and 2050 are missing.

In a response filed Friday, lawyers from the Attorney General’s office challenged the Sierra Club's claims, saying the court has no role in overseeing its actions to address climate change under the Climate Change Accountability Act.

“The accountability for the government’s plans to address climate change that is contemplated in the Act is accountability to the Legislative Assembly and to the public,” wrote ministry lawyers, “not the courts.”

The government lawyers point to a 2008 federal court case that found it had no role to play in overseeing the “reasonableness” of the government’s response to Canada’s Kyoto commitments. 

In an email, Alan Andrews, climate program director for the law firm Ecojustice, whose lawyers are representing the Sierra Club said access to government transparency and accountability through the courts “is a cornerstone of our democracy.”

“It would be absurd if B.C.’s Climate legislation, enacted specifically to improve accountability, were to avoid scrutiny by the courts,” he added.  

What are B.C.'s greenhouse gas emission reduction targets?

By law, the minister must establish greenhouse gas emissions targets for individual sectors of the economy, including oil and gas, transportation, industry and buildings and communities. That is all meant to add up to a 40 per cent reduction below 2007 levels by 2030. 

But a progress review must be completed by 2025 — when B.C. has ordered emissions must be dropped at least 16 per cent lower than in 2007 — and again once every five years. By 2040, emission reductions are meant to climb to 60 per cent, and by 2050, 80 per cent.

If B.C. fails any interim targets, it risks blowing its entire emissions reduction roadmap to mid-century.

“Obviously, these targets are building on each other,” said the Sierra Club’s Jens Wieting in an interview shortly after the judicial review was filed. 

“Without these targets, we cannot consistently reduce emissions, which is needed based on the science.”

Five months an 'unreasonable delay'

The government also called on the B.C. Supreme Court to dismiss the court action on grounds the Sierra Club waited more than five months to file its application for judicial review — an “unreasonable delay,” as lawyers for the Minister of Environment and Climate Change Strategy put it.

By the time the case is heard, the ministry will have produced the next round of reporting; quashing the 2021 report and remitting it back to the minister, notes the government response, “will have limited, if any utility.”  

Should the Sierra Club win the case, the government argues the biggest consequence will mean a delay in the 2022 reporting cycle, further undermining accountability and transparency under the Climate Change Accountability Act. 

In addition, the government’s legal response claims that over 1,000 pages of exhibits contained in an affidavit filed by lawyers for the Sierra Club contain evidence that was never reviewed by the government and, therefore, should be deemed inadmissible in court. 

Law does not specify quality of climate plan, say government lawyers

The Climate Change Accountability Act says the ministry must report on its plans to reduce emissions, but the quality of that reporting is up to the government, claims the response to the court petition.

“The petitioner cannot credibly argue that there are no plans…” wrote ministry lawyers. “For this basic reason, the petitioner’s challenge is misguided.” 

Last month, Wieting said a lack of detailed plans on how the province would account for emissions from the oil and gas sector was especially worrying. He pointed to the LNG Canada plant in Kitimat, B.C., which, once completed in 2025, will be the province’s biggest facility of its kind, receiving, processing and shipping gas from B.C. northeast to primarily Asian markets. 

“This project alone would significantly increase emissions in the same year when we have to meet this first interim target,” Wieting said at the time. “There's simply no plan in the accountability report that shows how that is even possible.”

In response, government lawyers claimed in the court document that “the gist of the Sierra Club’s complaint is not that there are no plans in the Report at all, but that the plans are insufficiently detailed or precise for the Sierra Club’s liking, particularly with respect to the oil and gas sector target.”

None of the allegations from either side have been tested in court.

A test for B.C.’s climate accountability laws

Andrew Gage — a staff lawyer with West Coast Environmental Law who is not involved in the court action — said the case boils down to a fundamental disagreement over how much detail the B.C. government should offer in laying out its emission reduction plans. 

The Sierra Club, says Gage, takes the view that the government should show its math on how it plans to achieve its emission targets; the government perspective, on the other hand, leans toward 'We have plans. Trust us,’ said the lawyer.

In an email to Glacier Media, a spokesperson for the Ministry of Environment and Climate Change Strategy pointed to the role of the Climate Solutions Council, which as an independent body advises government on plans and actions through “consensus-based feedback.”

“B.C. is the only province that has established climate accountability measures in law, ensuring credibility and transparency. Any future government is legally bound to publicly report on progress to targets,” added the spokesperson.

But Gage said the Climate Solutions Council doesn't have the teeth independent oversight bodies have in other jurisdictions, such as the United Kingdom.

The stakes are high. Other parts of the world with similar climate accountability legislation have reaffirmed the courts' ability to oversee government transparency. 

In 2020, for example, the Irish Supreme Court quashed the national government’s plan to mitigate the effects of climate change, ruling it did not give enough details on how it would reduce emissions. 

The unanimous decision reaffirmed the Irish courts’ role in overseeing government response to reduce harmful greenhouse gas emissions, says Gage.

The case brought by the Sierra Club last month will offer a similar test.  

“If it’s true that B.C.’s climate accountability act isn’t intended to be enforceable before the courts, that means that it’s significantly weaker than other jurisdictions with legislation of this type,” said Gage. 

One danger in selecting what’s reported when comes down to wild-card technologies that haven’t yet proven to reduce emissions at a large scale. 

If you are only focused on 2030, there’s a real risk you’re going to lock into dead-end technology that doesn’t let you get past a certain point, said Gage.

“Really, to work properly, it has to require a high level of transparency,” said Gage.

“You need the checks and balances for when government doesn’t do their job.”

Editor's Note: This story has been updated to include comments from Ecojustice's Alan Andrews.