On the Road to 2050: The Canadian Net-Zero Emissions Accountability Act

14 Jul On the Road to 2050: The Canadian Net-Zero Emissions Accountability Act

On the Road to 2050:
The Canadian Net-Zero Emissions Accountability Act

 

On June 29, 2021, more than 7 months after first reading, Bill C-12 or the Canadian Net-Zero Emissions Accountability Act received royal assent (“Bill C-12”).[1] This Act sets national targets for reducing greenhouse gas (“GHG”) emissions which includes a planning, reporting, and assessment process with the aim of net-zero emissions by 2050.[2] It has been lauded as a major step that further clarifies our plans to fight climate change. It is not, however, the first time that Canada has set such targets at the international level. In fact, Canada has a history of missing our emissions reductions targets under the United Nations Framework Convention on Climate Change (“UNFCC”). For example, neither the targets set under the 2009 Copenhagen Accord nor the 1997 Kyoto Protocol have been met.[3]

It is also not the first time a Bill of this nature has been introduced at the federal level. The Kyoto Protocol Implementation Act was passed by the federal government in 2007 and set out targets to ensure that Canada met its global climate change obligations under the Kyoto Protocol.[4] However, it was repealed in 2012. Again, in early 2020, Bill C-232 An Act respecting a Climate Emergency Action Framework, a private members’ bill, was put forward for first reading.[5] This Bill proposed targets to ensure that Canada meet its 2030 emissions reductions targets under the UNFCC and do so while upholding the United Nations Declaration of the Rights of Indigenous Peoples (“UNDRIP”). However, it was defeated at second reading. Bill C-12 is also not the first of its kind among common-law jurisdictions. Canada follows both the United Kingdom (“UK”) and New Zealand (“NZ”) who passed legislative GHG emissions reductions in 2008 and 2019 respectively, both of which are discussed below.

Even if it is not as groundbreaking as appears at first look, Bill C-12 does represent a step forward in Canada’s GHG emissions reduction plan. It was also passed with multi-partisan support, with the Liberals, New Democrats and Green Party all voting to pass this statute before Parliament adjourned for the summer. This post will describe some of the important provisions included in the final version of Bill C-12, compare it with the international versions from both the UK and NZ, and, finally, identify some of the ways in which it is lacking.

 

Let’s dive in…

 

The specific purpose of Bill C-12 is to set targets to reduce GHG emissions and create a process for planning and assessing the federal government’s progress towards those targets.[6] The ultimate goal is for Canada to have net-zero emissions by 2050.[7] Notably, net-zero is defined as “a balance between emissions that are produced and those that are taken out of the atmosphere” and does not require a zero emissions scenario.[8] This path to net-zero is then divided into milestone years, being 2030, 2035, 2040, and 2045.[9]

The designated Minister, along with an advisory body, is responsible for setting GHG emissions targets for each milestone year with each target representing a progression from the last.[10] Due dates are also incorporated into the Bill with the 2035 target due by December 1, 2024, the 2040 target by December 1, 2029, and the 2045 target by December 1, 2034.[11] Targets must be based on:[12]

• the best scientific information available;
• Canada’s international commitments with respect to climate change;
• Indigenous knowledge; and
• submissions provided by the appointed advisory body.

Further, to achieve each target, the Minister must prepare a GHG emissions reduction plan which must be released at least five years prior to the year to which it relates.[13] These plans must contain:[14]

• the GHG emissions target for the relevant year;
• a summary of the most recent official GHG emissions inventory and information relevant to Canada’s international commitments;
• a description of key emissions reduction measures the government intends to take to achieve the target;
• a description of how international commitments are being taken into account;
• a description of any relevant sectoral strategies;
• a description of emissions reduction strategies for federal government operations;
• a projected timetable for implementation;
• projections of the annual GHG emission reductions resulting from these plans; and
• a summary of key cooperative measures or agreements with provinces and other governments in Canada.

When setting targets, the Minister must consult with the provinces, Indigenous peoples of Canada, the advisory body, and other interested persons.[15]

In order to track progress towards 2050, Bill C-12 requires that progress reports are completed at least two years prior to the start of each milestone year and the long-term target of 2050.[16] These reports must summarize: [17]

• any progress the government has made towards achieving the relevant target;
• the most recent published GHG emissions projections for the next milestone year;
• a summary of the most recent GHG emissions inventory;
• an update on the implementation of the federal measures, sectoral strategies, federal government operations strategies, and any updated projections;
• an update on the implementation of key cooperative measures or agreements with provinces and other governments in Canada;
• if projections indicate that a target will not be met, details about additional measures that can be taken; and
• any other information the Minister considers appropriate.

The Minister must also prepare an assessment report after each milestone year summarizing Canada’s GHG emissions for that year and stating whether Canada has achieved its emissions target, including any measures the government took to achieve the target or could be taking to achieve future targets.[18] If Canada fails to achieve an emissions target for a given year, the assessment report must also explain the reasons for the failure and how the government plans to address the same.[19]

 

Climate Accountability Acts around the World

 

Before Bill C-12, the UK and NZ had both passed climate accountability legislation tracking their progress to the net-zero by 2050 goal. In this section we will take a look at both of these Acts and highlight some of the similarities and differences between them and the Canadian version.

United Kingdom

 

The UK Climate Change Act, passed in 2008, establishes legally binding targets intended to help the UK achieve net-zero GHG emissions by 2050.[20] To do so, it creates ‘carbon budgets’ each of which applies to a 5 year period and which sets out the amount of CO₂ that can be ‘spent’ during that period.[21] To ensure that these budgets are kept on track, the Act requires that three budgets are set at a time with the first three running from 2008-2012, 2013-2017, and 2018-2022, all of which were set in 2009.[22] The most recent budget, the sixth, which applies to the years 2033-2037 was passed in June 2021.[23] This most recent budget is also the first time that the budget includes the UK’s share of international aviation and shipping emissions.[24]  Figure 1 summarizes the budgets as they have been passed thus far.

Figure 1: UK Climate Change Act 5-year carbon budgets[25]

Budgetary Period	Years Covered	Carbon Budget	Average annual reduction
1	2008-2012	3,018	-23%
2	2013-2017	2,782	-29%
3	2018-2022	2,544	-35%
4	2023-2027	1,950	-50%
5	2028-2032	1,765	-57%
6	2033-2037	965	-78%
…	2050	159	-80%

 

In setting each carbon budget, the Committee on Climate Change and the Secretary of State must take into account:[26]

1. scientific knowledge about climate change;
2. technology relevant to climate change;
3. economic circumstances, and in particular the likely impact of the decision on the economy and the competitiveness of particular sectors of the economy;
4. fiscal circumstances, and in particular the likely impact of the decision on taxation, public spending and public borrowing;
5. social circumstances, and in particular the likely impact of the decision on fuel poverty;
6. energy policy, and in particular the likely impact of the decision on energy supplies and the carbon and energy intensity of the economy;
7. differences in circumstances between England, Wales, Scotland and Northern Ireland;
8. circumstances at the European and international level;
9. the estimated amount of reportable emissions from international aviation and international shipping for the budgetary period or periods in question.

Budgets also allow for some carryover. If the total emissions during a budget period are lower than the set budget for that period, the excess reduction can be carried forward and in turn, if the total amount ‘spent’ is greater than permitted, up to 1% of the next budget can be held back.[27] The Secretary of State must also report on the policies that are being implemented to meet these carbon budgets and present to Parliament an annual statement of emissions including whether the relevant period’s emissions represent an increase or decrease from the last.[28] Thus far, the UK has met its first two budgets for the years 2008-2012 and 2013-2017.[29]

Finally, after the year 2050, the government must release a final statement outlining whether the net-zero goal has been accomplished, and if not, why, to be published by 2052.[30]

 

New Zealand

 

In 2019, about a decade after the UK Act was passed, NZ passed their Climate Change Response (Zero Carbon) Amendment Act and in many ways the NZ Act mirrors the UK version.[31] It is also based on five year carbon budgets intended to help the country reach net-zero by 2050.[32] Under this Act, the carbon budget is considered the maximum cumulative quantity of GHGs that may be emitted over a given period.

Specifically, the Act dictates that starting on December 31, 2021, the first budgets must be set, requiring 3 consecutive budgets to be in place at any time.[33] Similar to the UK, carry over is allowed and if the total emissions during a budget period are lower than the set budget for that period, the excess reduction can be carried forward and in turn, if the total amount ‘spent’ is greater than permitted, up to 1% of the next budget can be held back.[34]

Once a target is set for each budget period, the government must release a plan detailing how the emissions budget will be met, including minimum sector-specific policies, multi-sector strategies, adaptation policies, and strategies for minimizing impacts on workers, employers, regions, and communities.[35] A national climate change risk assessment is also required every 6 years which should address and identify the risks to NZ associated with a changing climate and followed by a national adaptation plan.[36] Additionally, two years after each budget, a progress report outlining emissions reductions must be published.[37]

Despite the comprehensive plans required to ensure progress is made, the Act also states that “no remedy or relief is available for failure to meet the 2050 target or an emissions budget, and the 2050 target and the emissions budgets are not enforceable in a court of law.” According to the NZ Law Society, this means that “a court may only make a declaration that the target or a budget has not been met and award costs.”[38]

There are a few unique aspects to this Act including provisions relating to methane emissions. Specifically, the Act requires a 10% reduction in methane emissions from 2017 levels by 2030 and a reduction of between 24% and 47% below 2017 levels by 2050.[39] The NZ Act also includes reference to the importance of the relationship with the Māori peoples and government and requires adequate consultation with Māori peoples and recognition of the Treaty of Waitangi throughout.[40]

 

What did Bill C-12 miss?

 

Despite these targets in the Act, there are still pieces missing from Bill C-12, particularly when compared to some of its international counterparts. At the outset, one of the most glaring omissions is the lack of carbon budgets. Unlike the UK and NZ, Bill C-12 does not set out specific carbon budgets applicable to each 5 year period. Carbon budgets are important because they set out specific near-term planning and provide accountability and specific numbers that will help achieve the goal of net-zero.[41]

Another critique is that the reporting requirements and milestone years are too few and far between and, particularly, that the first milestone in 2030 is still nearly a decade away.[42] Regular reporting and early and ambitious targets would help to ensure that Canada starts on the right track sooner rather than later and a clear 2025 target would mean earlier progress and help set the stage for future plans. Early progress is important because, although the Bill claims to bind the government, it only binds the current government – and even that is questionable. As noted by David Wright in ABlawg, the principle of parliamentary sovereignty, as reflected in section 42(1) of the Interpretation Act, means that future governments could simply repeal the Act and be rid of any associated obligations.[43] The sooner we start along the path to net-zero, the more socially and politically unacceptable it may become to rescind the Act and accompanying targets.

The next gap arises in the event that a target, including the final 2050 target, is not met. If a target is missed, there is little to no ability to require any further specific action. Additionally, similar to the UK and NZ acts, there are no built in consequences if the government fails to meet the net-zero target. In the event that an individual brought the federal government to court for a failure under this Act, it is likely that the only relief available would be declaratory. This would look like a declaration from the Court highlighting the failures of the federal government. While this may apply political pressure, it would not provide the parties bringing the complaint any specific legal relief.

Further, unlike the UK version, which includes a definition of GHGs and the NZ version which includes specific provisions for methane, Bill C-12 does not distinguish or define what is meant by GHGs.[44] The inclusion of a definition of GHGs in the Act would provide more of a framework for future targets and would leave less information up to the supplementary documents. Notably, it may be that the targets will use the definition of GHGs as set out in the Greenhouse Gas Pollution Pricing Act but this has yet to be confirmed.[45] Ideally, whether in the Act or in the accompanying reports, there will be a fulsome approach to GHG emission types.[46]

Bill C-12 also includes limited focus on the rights of, and cooperation with, Indigenous Peoples and unlike Bill C-232 does not make specific reference to UNDRIP. There is, similarly, very little discussion of provincial cooperation which will likely limit the ability of the federal government to achieve the stated goals. Although the Supreme Court’s decision in the Reference re Greenhouse Gas Pollution Pricing Act opened the door for the federal government to set minimum national standards of GHG price stringency to reduce GHG emissions, Bill C-12 will still need to contend with the challenges of federalism.[47] Such issues could form the basis of an entire set of blog posts (and legal challenges) on their own, so in the interest of time and space, we are simply identifying and highlighting them as issues of concern.

Finally, just a few weeks after this Bill was passed, the federal Minister for the Environment submitted new GHG emissions targets to the United Nations.[48] These targets formally commit Canada to reduce GHG emissions by 40-45% below 2005 levels by 2030.[49] Following this announcement, Bill C-12 allows the Minister six months to release a plan to achieve this target.[50] Overall, Bill C-12 and announcements like this represent a step forward in our plans to achieve GHG emissions reductions and combat climate change. However, with these evident holes, we will have to wait to see how the Act is implemented.  At the very least Bill C-12 brings a level of transparency and accountability for emissions reduction efforts, something that the Government of Canada has avoided since the early days of Kyoto.

 

[1] Bill C-12, An Act respecting transparency and accountability in Canada’s efforts to achieve net-zero greenhouse gas emissions by the year 2050, 2nd Sess, 43rd Parl, 2021 (as passed by the House of Commons 29 June 2021) [Bill C-12].

[2] Ross Linden-Fraser, “Bill C-12: An Act Respecting Transparency and Accountability in Canada’s Efforts to Achieve Net-Zero Greenhouse Gas Emissions by the Year 2050” (7 May 2021) Parliamentary Information, Education and Research Services at 1 online: https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/43-2/43-2-C12-E.pdf [Ross Linden-Fraser].

[3] Ibid at 2.

[4] Kyoto Protocol Implementation Act, SC 2007, c 30 [since repealed].

[5] Bill C-232, An Act respecting a Climate Emergency Action Framework, 1st Sess, 43rd Parl, 2020 (first reading 26 February 2020).

[6] Bill C-12, supra note 1, s 4.

[7] Ibid, s 6.

[8] Ross Linden-Fraser, supra note 2 at 2.

[9] Bill C-12, supra note 1, s 2.

[10] Ibid, ss 7(1), 7(1.1) & 20.

[11] Ibid, s 7(4).

[12] Ibid, s 8.

[13] Ibid, ss 9(1) & (4).

[14] Ibid, s 10.

[15] Ibid, s 13.

[16] Ibid, s 14(1)

[17] Ibid, s 14(2).

[18] Ibid, s 15.

[19] Ibid, s 16.

[20] Climate Change Act 2008 (UK), c 27, s 1 [Climate Change Act 2008].

[21] Ibid, s 5.

[22] Grantham Research Institute on Climate Change and the Environment, “Climate Change Act” London School of Economics online: https://climate-laws.org/geographies/united-kingdom/laws/climate-change-act-34405aa9-396e-4a78-a662-20cad9696365.

[23] Government of the United Kingdom, Press Release, “UK enshrines new target in law to slash emissions by 78% by 2035” (20 April 2021) online: https://www.gov.uk/government/news/uk-enshrines-new-target-in-law-to-slash-emissions-by-78-by-2035; Climate Change Committee, “Sixth Carbon Budget” (9 December 2020) online: https://www.theccc.org.uk/publication/sixth-carbon-budget/.

[24] Climate Change Act 2008, supra note 20, s 30.

[25] ClientEarth Communications, “What is the Climate Change Act?” (7 October 2016) online: https://www.clientearth.org/latest/latest-updates/stories/what-is-the-climate-change-act/.

[26] Climate Change Act 2008, supra note 20, s 10.

[27] Ibid, s 17.

[28] Ibid, ss 14 & 16.

[29] Climate Change Committee, “The benefits of the Climate Change Act” online: https://www.theccc.org.uk/about/our-expertise/the-benefits-of-the-climate-change-act/.

[30] Ibid, s 20.

[31] Climate Change Response (Zero Carbon) Amendment Act 2019 (NZ), 2019/61 [Climate Change Response (Zero Carbon) Amendment Act].

[32] Ibid, s 5Q(1)(a).

[33] Ibid, s 5X.

[34] Ibid, s 5ZF.

[35] Ibid, s 5ZG.

[36] Ibid, ss 5ZP, 5ZQ & 5ZS.

[37] Ibid, ss 5ZL.

[38] Canadian Institute for Climate Choices, “Climate Legislation in Aotearoa/New Zealand” (June 2020) online: https://climatechoices.ca/publications/climate-legislation-in-aotearoa-new-zealand/.

[39] Climate Change Response (Zero Carbon) Amendment Act, supra note 31, s 5Q(1)(b).

[40] Ibid, ss 3A & 5M.

[41] Canada Climate Action Network, “High-Level Recommendations for Bill C-12, the Net-Zero Emissions Accountability Act” (25 November 2020) online: https://climateactionnetwork.ca/2020/11/25/technical-recommendations-for-bill-c-12-the-net-zero-emissions-accountability-act/.

[42] West Coast Environmental Law, “Canada’s climate bill (Bill C-12) needs work – and now’s the time to fix it” (18 May 2021) online: https://www.wcel.org/blog/canadas-climate-bill-bill-c-12-needs-work-and-nows-time-fix-it.

[43] David V Wright, “Bill C-12, Canadian Net-Zero Emissions Accountability Act: A Preliminary Review” (23 November 2020) ABlawg online: https://ablawg.ca/2020/11/23/bill-c-12-canadian-net-zero-emissions-accountability-act-a-preliminary-review/;  Interpretation Act, RSC 1985, c I-21.

[44] Climate Change Act 2008, supra note 20, s 92.

[45] Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186.

[46] Kelly Levin et al., “What Does “Net-Zero Emissions” Mean? 8 Common Questions, Answered” (17 September 2019) World Resources Institute online: https://www.wri.org/insights/net-zero-ghg-emissions-questions-answered.

[47] Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11.

[48] Environment and Climate Change Canada, News Release, “Government of Canada confirms ambitious new greenhouse gas emissions reduction target” (12 July 2021) Government of Canada online: https://www.canada.ca/en/environment-climate-change/news/2021/07/government-of-canada-confirms-ambitious-new-greenhouse-gas-emissions-reduction-target.html.

[49] Ibid.

[50] Bill C-12, supra note 1, s 8(2).

 

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