Ontario updates: Advisory Panel on Climate Change appointed; Auditor General pans climate policies; Ontario youth launch new lawsuit

Post updated November 6:

In a November 28 press release,  Ontario’s  Minister of the Environment, Conservation and Parks announced the appointment of an Ontario Advisory Panel on Climate Change . The press release quotes the new Chair, Paul Kovacs who states: “The knowledge exists to prevent losses from flooding, wildfire and other climate extremes…. “Members of the advisory panel on climate change look forward to working with the Government of Ontario to champion climate resilience. Working together, we can break the alarming trend of rising severe weather damage to homes, businesses and public infrastructure. Action on climate resilience is a critical element of a comprehensive strategy on climate change.”

Members of the Advisory Panel come from a variety of sectors including non-profits, agriculture, insurance, and reflect the Panel’s focus on adaptation and conservation concerns. Neither green advocacy groups nor workers are represented. The brief bios of panelists are here :  Chair Paul Kovacs is founder and Executive Director of the  Institute for Catastrophic Loss Reduction at Western University; Vice-Chair Lynette Mader is the Manager of Provincial Operations for Ontario for Ducks Unlimited Canada and an expert on species-at-risk.  The other eight Panel members include Blair Feltmate , head of the Intact Centre on Climate Adaptation at the University of Waterloo and Chair of the Government of Canada Expert Panel on Climate Adaptation and Resilience Results.

ontario auditor general 2019The Advisory Panel was announced on the one-year anniversary of the Made-in-Ontario Environment Plan.   On December 4,  that policy initiative was reviewed when the provincial Auditor General tabled her annual report in the Legislature, including  Volume 2:  Reports on the Environment . In 183 pages and three chapters, the report provides an overview of  1. environmental issues in Ontario; 2. Operation of the Environmental Bill of Rights, and 3. Climate Change: Ontario’s plan to reduce Greenhouse Gas Emissions. The report details the government’s performance and finds that it has double-counted emissions reductions in some cases, over-estimated potential impacts of its own policies,  and is nowhere near able to meet its own 2030 emissions reductions targets.   The National Observer summarizes the report in “Ontario Auditor General slams Doug Ford’s climate policies”  and an analysis at the  TVO website tells a similar story in  “Ontario’s Auditor General gives the Tories’ climate plan a failing grade”.  This latest report follows on the previous  highly-critical report of the outgoing Environmental Commissioner,  A Healthy, Happy, Prosperous Ontario: Why we need more energy conservation  (March 2019), and  the Failure to Launch   report in October 2019 by Environmental Defence.

Youth launch lawsuit against Ontario government

All of these negative findings won’t help the government as they prepare to defend themselves against a new  climate change lawsuit by Ontario youth  who claim that the  Ford government’s softening of emissions reductions targets “will lead to widespread illness and death,” and thus has violated their charter rights under Section 7 of the Canadian Charter of Rights and Freedoms.  Seven  applicants from communities across Ontario, ranging in age from 12 to 24, are represented by lawyers from Ecojustice and Stockwoods LLP .  Details are in the Ecojustice  Case Backgrounderan overview of the action appears in the National Observer in  “These Ontario kids are taking climate protest from streets to courthouse” (Nov. 26).

mathur v province of ontario

66 recommendations from Special Advisor in investigation of Ontario’s 2019 record-setting floods

Disastrous and record-setting flooding occurred across the province of Ontario between April and July 2019, with 23 municipalities declaring states of emergencies.  In July 2019, the government appointed Doug McNeil, an experienced public servant from Manitoba, as Special Advisor on Flooding , with a mandate to consider the flood management and land use systems in Ontario.  His report was submitted to the government on October 31 and made public on November 28 – the press release is here. flooding firefighterThe 157-page  Report of an Independent review of the 2019 flood events in Ontario describes in detail the complex administrative and regulatory system which governs the province’s flood management , and  concludes that “the government and its partners were effective at reducing and mitigating flood risks…. the flooding was caused by a combination of weather conditions and found no human error or negligence in the operation  of “water control structures” (translation: dams).

Reaction to the report includes “Doug Ford government ducks fiscal responsibility for severe flooding” in the National Observer  (November 28) – which points out: “The first Ford budget had slashed by 50 per cent the flood management funds given to conservation authorities by his ministry to protect Ontario’s watersheds and canceled tree-planting efforts that limit flood damage.”  A Toronto Globe and Mail article focuses on the home-owners perspective in their overview “Ontario homes at risk of flooding should be made public: report”The Toronto and Region Conservation Authority reacted positively– their press release notes that many of their recommendations and comments about urban flooding were incorporated in the Special Advisor’s recommendations.  It is notable that the Chair of the TRCA was appointed on the same day as a member of Ontario’s new Advisory Panel on Climate Change.

The Special Advisor makes sixty-six recommendations for improved action and coordination by the provincial ministries and conservation authorities, and calls for sustained funding for  budgets related to flood management .  Recommendations include:

  • #3: “That the following be incorporated into the Provincial Policy Statement: • The reference to “impacts of a changing climate” throughout the Provincial Policy Statement helps to bring it to everyone’s attention and should be included in the Preamble as well.”
  • #15: That the Province consider adopting legislation that will require flood risk properties to be identified in some way that is publicly accessible, at the very least on the property title, to ensure that prospective buyers are aware.
  • #16 That municipalities consider utilizing local improvement charges to help finance and install (or upgrade) shoreline protection works, and if necessary, that the Province provide municipalities with enhanced authority to do so.
  • #52: That the Province continue the dialogue with the Insurance Bureau of Canada and the federal government on the steps needed to make flood insurance more available to more Ontarians.
  • #66: That the Province maintain, at a minimum, the current level of funding in departmental budgets and programs related to everything flood (i.e. existing approval processes and associated policies and technical requirements, floodplain mapping, maintenance of flood infrastructure, satellite imagery, etc.).

Calls for improvements to Ontario’s failed climate policies

failure-to-launchEnvironmental Defence released a one-year progress report on the climate change policies of the Ontario government in early October. Failure to Launch   reviews each of the promises/actions proposed by the Conservative government of Doug Ford under its much-citicized “ Made-In-Ontario Environment Plan,  which lowered Ontario’s target for GHG emissions reductions from 37 to 30 per cent below 2005 levels by 2030 and cancelled renewable energy programs.   Environmental Defence finds that the government has not even made sufficient progress in its first year to meet the diminished GHG reduction goals, and makes specific recommendations for accelerated action. A summary appears in the Environmental Defence blog .  Then, on November 7, thirty environmental advocacy groups, including Environmental Defence,  posted an Open Letter to the members of Ontario’s provincial parliament  on November 7, with specific demands which would take serious action on climate change.  This coincides with the recall of the legislature after an historic 4-month recess.

The government led  the new session with its  2019 Economic Outlook and Fiscal Review  under a new banner: “ A Plan to Build Ontario Together”.  Although analysts note many “about face” policy changes to some programs, the climate/environmental file hasn’t benefitted, as described in an article in the National Observer . It notes that there was no mention in the budget of the previously announced Ontario Carbon Trust, a fund of $400 million over four years to support the private sector in developing clean technologies .

Ontario to pursue carbon tax case, and dragging its feet on action

According to analysis of the Economic Outlook from TVO: “Anyone looking for signs of reasonableness from the Tories on carbon pricing will be disappointed: despite the recent federal-election results, the fall economic statement reiterates that the government will keep fighting the federal carbon tax in court. The Supreme Court of Canada is expected to hear the case in March 2020.”

On October 31, this press release  proposes to expand fines for environmental regulations, reinvesting that revenue “to support projects that provide local solutions to environmental issues”. Environmentalists were not impressed.

white pines decomissioningThe White Pines wind farm decommissioning began in October, with the government following through on its 2018 decision to cancel the almost-completed  project, despite an estimated cost to taxpayers of $100 million in costs and penalties.  The local press of Prince Edward County reported on October 31 “ Sadness for green energy supporters as dismantling begins on turbine project” . The National Observer published a related article concerning the costs of cuts to clean energy  programs, including White Pines: “Doug Ford ‘throwing away’ millions to kill Ontario clean energy programs” (Nov. 19). The article cites a cost to the taxpayer of $230 million from killing more than 750 renewable-energy projects.

A government press release on November 7 announced a “Multi-Sector Impact Assessment Will Help Communities Identify Climate Change Risks and Strengthen Resilience”.   Apparently there’s no urgency: the private sector contract for this assessment will be tendered in 2020 for 2 years, producing a final report in 2022.

 

Ontario Court rules that government broke the law by failure to consult on repeal of Cap and Trade regulations

doug ford scrap the taxA suit against the Conservative Ford government of Ontario was dismissed by the Ontario Divisional Court on October 11, but in the decision, a majority of judges wrote that the government breached Ontario’s Environmental Bill of Rights (EBR) by repealing the province’s Cap and Trade regulations without the required public consultation.  The CBC summarizes the decision and the National Observer writes,

“the judges found the Ford government was in “clear breach of the EBR” and that “its apparent efforts to avoid judicial review of this conduct raises serious concerns – not about whether the government had the lawful authority to repeal the Cap and Trade Act, but of its respect for the Rule of Law and the role of the courts, as a branch of government.”

The suit was brought by Greenpeace and Ecojustice in 2018.  The Greenpeace reaction on October 11 states:

“Scrapping cap-and-trade not only undercut a successful program that was helping Ontario reduce climate change-causing greenhouse gas emissions, it also cancelled 227 clean energy programs that would have benefit schools, hospitals, small businesses and public housing projects. It’s especially concerning that the Ford government did this in a way that silenced groups like Greenpeace and Ontario’s youth – who do not have a voice to vote, but stand to lose the most from climate inaction… Ontarians are marching in the streets demanding real action in response to the climate emergency and we call on the Ford government to listen to the people this time, starting with an abandonment of its challenge of the federal carbon tax.”

The Greenpeace statement also refers to Failure to Launch , a progress report on climate action in Ontario released on October 10 by Environmental Defence. A blog summarizes the findings; the full report is here , describing the destruction of climate change policies from the previous Liberal government, and making recommendations for improved future action.

Ontario Court of Appeal rules against the provincial challenge to the federal carbon price – Seven provinces will intervene in the Supreme Court appeal

doug ford scrap the taxOn June 28, the Ontario Court of Appeal issued their Decision , 4 to 1 in favour of the federal government’s right to impose a system of carbon pricing across Canada, under the Greenhouse Gas Pollution Pricing Act.   Some important excerpts from the majority decision:

“Parliament has determined that atmospheric accumulation of greenhouse gases causes climate changes that pose an existential threat to human civilization and the global ecosystem ….The need for a collective approach to a matter of national concern, and the risk of non-participation by one or more provinces, permits Canada to adopt minimum national standards to reduce [greenhouse gas] emissions…

The Act does this and no more. It leaves ample scope for provincial legislation in relation to the environment, climate change, and GHGs, while narrowly constraining federal jurisdiction to address the risk of provincial inaction.

The charges imposed by the Act are themselves constitutional. They are regulatory in nature and connected to the purposes of the Act. They are not taxes.

The Act is the product of extensive efforts – efforts originally endorsed by almost all provinces, including Ontario – to develop a pan-Canadian approach to reducing GHG emissions and mitigating climate change. This, too, reflects the fact that minimum national standards to reduce GHG emissions are of concern to Canada as a whole. The failure of those efforts reflects the reality that one or more dissenting provinces can defeat a national solution to a matter of national concern”

The Ontario government immediately announced that it will appeal the decision to the Supreme Court.  The Premier of Alberta, part of the Canada-wide Conservative opposition to the federal carbon tax, said that Alberta is reviewing the decision in his press release.  Saskatchewan, which lost its own court challenge to the GGPPA  in May 2019, has already filed an appeal in the Supreme Court of Canada, scheduled for December 5 2019 – notably after the coming federal election, in which climate change issues are widely expected to be a top priority for voters.

For a thorough discussion of the decision and compilation of reactions, read: “Doug Ford loses carbon tax battle with Trudeau” in the National Observer .  “Ontario Court of Appeal Upholds Federal Carbon Tax” appeared in The Energy Mix on July 2 and also compiles reaction from many sources. “Federal Carbon Pricing Regime Now Two-for-Two” (July 2) in Lexology offers a more lawyerly perspective.   And for the mood in Ontario, read “Doug Ford’s $30 million carbon tax fight is money down the drain but it keeps his brand afloat” in the Toronto Star (July 3) or in the Globe and Mail, The real carbon tax is the money provinces are spending on lawyers.”

Provinces line up to participate in Supreme Court appeal: ( Updated as of July 10):  As of July 8, seven provinces are  registered as intervenors in the Saskatchewan challenge to the carbon tax, scheduled to be heard by the Supreme Court of Canada in December 2019.  On July 8, CBC reported that  New Brunswick Premier Blaine  Higgs  abandons  planned carbon tax court fight , stating that the province will not waste taxpayers’ money on their own carbon tax court case, but will act as an intervenor in the Saskatchewan’s appeal.  Prince Edward Island is also intervening, as explained in  P.E.I. intervening in Saskatchewan’s carbon tax court challenge” (July 5).  The Premier of PEI states they are “absolutely not” joining the fight against a carbon tax, but are intervening as a way to reserve the right to participate in future. Even more surprisingly, “Quebec intervenes in Saskatchewan’s challenge of carbon tax“, as reported in the Montreal Gazette on July 8.  Quebec has joined the case to ensure its provincial rights are upheld in any court decision, and to protect Quebec’s existing cap and trade system. 

stampede ford 2019Aaron Wherry of CBC posted an analysis of the Conservative premiers’ positions against the federal carbon price in Premiers say they want a ‘co-operative’ approach to climate policy. Are they serious? (July 10).  It discusses the differences amongst  Alberta’s Jason Kenney, Ontario’s Doug Ford, Saskatchewan’s Scott Moe, New Brunswick’s Blaine Higgs and Bob McLeod of the Northwest Territories, who are meeting separately, in advance of the formal Council of the Federation meeting in Saskatoon, July 9 to 11.