Canadian Energy Law : Lawyers & Attorneys for Environmental Energy Law

Alix d'Anglejan-Chatillon and Jason Streicher

On November 23, 2009, Québec's Minister of Sustainable Development, Environment and Parks announced Québec's target to reduce greenhouse gas emissions (GHG) by 20% below 1990 levels by the year 2020. The Minister elaborated that "the reduction target will show flexibility from one economic activity sector to another in accordance with the reduction potential of each, international competitiveness, available technology and required transition measures."

In order to achieve the announced reduction target, the Minister suggested that Québec will make major investments in mass transit and will establish means to encourage the increased use of intermodal transportation of goods. This initiative is in addition to the previously announced introduction of a GHG emission standard for light-duty vehicles, equivalent to the California standard, and investments to encourage the use and development of Québec's expertise in the electric vehicles sector. Lastly, the Québec government has stated that in order to achieve its reduction target, a GHG cap and trade system will need to be implemented in 2012 and, to this end, Québec expects to participate in establishing the largest GHG cap and trade system in North America in conjunction with its partners in the Western Climate Initiative.

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Ruth Elnekave and Cora Zeeman

In an earlier Securities Law Update we reported that against the backdrop of investors' concerns regarding climate change considerations and increasing regulation to combat greenhouse gas (GHG) emissions, the Ontario Securities Commission (OSC) released Staff Notice 51-716 - Environmental Reporting in February 2008, outlining the results of a targeted review to determine the degree to which reporting issuers were adequately disclosing "environmental matters". Similarly, in our September 2009 Emissions Trading & Climate Change Update we reviewed the escalating significance of such considerations in light of numerous mandatory GHG reporting regimes that have recently been announced across North America.

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Cora Zeeman

On December 1, 2009, the government of Ontario introduced a key regulation in support of the implementation of a cap-and-trade program in the province. The Greenhouse Gas Emissions Reporting Regulation (O.Reg. 452/09) will assist the development of this program by providing for the collection of accurate greenhouse gas (GHG) emission data. It is also aimed at aligning Ontario's cap-and-trade program with those being developed across North America. To this end, where viable, the province intends to work with other provinces and the federal government to harmonize GHG reporting requirements, as well as with its Western Climate Initiative partners, to harmonize with U.S. EPA reporting requirements. The regulation follows the introduction of Bill 185 on May 27, 2009, an act designed to implement Ontario's cap-and-trade program through amendments to the Environmental Protection Act, which bill passed its third reading on December 3, 2009.

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Phil G. Griffin

On November 25, 2009, the Minister of Environment announced the approval of the Reporting Regulation under British Columbia's Greenhouse Gas Reduction (Cap and Trade) Act. The new regulation, which becomes effective on January 1, 2010, requires the operators of facilities that emit more than 10,000 metric tonnes of carbon dioxide equivalent (C02e) annually to report those emissions to the Ministry of Environment. The regulation requires the reporting of all six main types of greenhouse gases (GHG) and prescribes the types of facilities for which reports are required. Commencing with the report for 2010, annual emission reports are required to be filed by March 31 of the following year. In the case of facilities that emitted more than 20,000 tonnes of C02e in any year between 2006 and 2009, the report submitted for 2010 must also include the emissions in any year in the 2006-to-2009 period in which the 20,000-tonne threshold was exceeded. The quantification methods established by the Western Climate Initiative (WCI) are required to be used by facility operators for reporting purposes. Where WCI quantification methods do not exist, the methods to be used will be those specified by the Ministry of Environment. For the purposes of the reporting requirements, emissions from wood biomass or wood-biomass components of mixed fuels are excluded in determining the reporting thresholds.

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Bradley B. Grant and Matthew Synnott

As we move towards the United Nations conference on climate change in Copenhagen, Denmark from December 7 to 18, 2009, Canada is still without a definitive climate-change strategy. The Government of Canada has stated that the solution in Canada will ultimately depend on the approach taken in the U.S. Similarly, the approach adopted in Canada will impact those currently being implemented in Canadian provinces.

While no definitive federal policies are in place in the U.S. or in Canada, both governments appear to be looking to carbon capture and storage (CCS)-a process that captures carbon dioxide (CO₂) emissions before they are released into the atmosphere and stores them in geological formations kilometres deep inside the earth-as an important part of the solution to the problem of reducing greenhouse gas (GHG) emissions. Canadian provinces (in particular, Alberta and Saskatchewan) are also investing heavily in CCS.

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Kerry-Boxer Bill Introduced in the Senate

Jason Kroft, Ruth Elnekave and Michael Lees

On September 30, 2009, Senators John Kerry (D-MA), Chairman of the Committee on Foreign Relations, and Barbara Boxer (D-CA), Chairman of the Committee on Environment and Public Works, introduced the Clean Energy Jobs and American Power Act ("Kerry-Boxer", or the "Bill"). The stated purpose of the Bill is to "create clean energy jobs, promote energy independence, reduce global warming pollution, and transition to a clean energy economy." The Bill, the main feature of which is an economy-wide cap-and-trade regime to reduce greenhouse gas (GHG) creation, is closely modelled on its House of Representatives predecessor, the American Clean Energy and Security Act (ACES), which was passed on June 26, 2009.¹

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Douglas Richardson and Julie D'Avignon

With the development of cap-and-trade regimes and the recent attention given to them in North America and abroad, the issues arising in this context have come under careful consideration by environmental and commercial lawyers for some time. However, the national and international tax consequences of trading in emission allowances (or tradable permits) have been largely ignored in the analysis and the political developments that have preceded the United Nations Conference on Climate Change in Copenhagen from December 7 - 18, 2009. The importance of these consequences should not be underestimated, since any tax regime that results in "tax friction" costs may impede the efficacy of a domestic cap-and-trade system and negate the natural flow of such instruments across international borders. These issues and others were recently identified and addressed in submissions made by the Business and Industry Advisory Council (BIAC) of the Organisation for Economic Co-operation and Development (OECD).

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Matthew Synnott

The Alberta Land Stewardship Act (ALSA) was proclaimed on September 1, 2009. The ALSA is part of the Land-Use Framework (LUF), the Government of Alberta's initiative to transform Alberta's approach to land-use planning.

The land-use framework

The LUF was finalized in December 2008 after two years of consultation with representatives of the public, municipalities, Aboriginal peoples, industry and environmental groups. Directed at managing growth in a way that balances economic, social and environmental interests in public and private lands, the LUF provides a blueprint for land-use management and decision-making within Alberta. Specifically, the LUF incorporates seven strategies to improve land-use decision-making:

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Alison Forbes

Since its release of the Feed-In Tariff (FIT) program on September 30, 2009, the Ontario Power Authority (OPA) has faced both commendation and criticism. Throughout the Launch Period, ending November 30, 2009, the OPA has released several clarifications and amendments to the initial FIT program. The following is a summary of the key announcements made throughout the past two months and some of the issues that remain outstanding.

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