As an environmental law professor, my teaching and research focus is on Canada’s climate and sustainability policies. So it may surprise you that I completely agree with the “Kill Bill C-69” campaign of “Suits and Boots,” mounted by self-appointed defenders of Canada’s nonrenewable resources sector.
It certainly surprises me. Bill C-69 would create a new environmental assessment process for our largest natural resource projects, such as new oil pipelines and mining operations. But after two years of analyzing its twists and turns, I’ve reached the same conclusion as Suits and Boots — the Senate should kill Bill C-69.
My reasons for opposing the bill, however, couldn’t be more different. The claims put forward by the Suits and Boots are just as outlandish — and fictional — as the popular movie the campaign puns.
But here’s the thing: The arguments made by Bill C-69’s defenders are just as misleading.
The dangers of discretion
Suits and Boots argues that Bill C-69 gives the minister of environment and climate change too much discretionary power to reject projects. The bill’s defenders counter that the current regime is even more discretionary, but that under Bill C-69’s Impact Assessment Act the government will have to give “detailed reasons” for its decisions.
This “detailed reasons” defence isn’t entirely true. The bill’s defenders imply the government can be held accountable if its reasons for approving or rejecting a project aren’t detailed enough.
In reality, the government merely has to show it gave some consideration to the bill’s mandatory public interest factors, including sustainability, the rights of Indigenous peoples and Canada’s climate commitments. So long as it ticks those boxes, the courts will defer to the government’s judgment.
Suits and Boots also argues that Bill C-69 is suspect because it was introduced by the minister of environment and climate change, when it should have been led by the minister of natural resources. The bill’s defenders counter that the minister of natural resources has been deeply involved throughout, and the bill reflects the results of two years of extensive engagement.
But this isn’t entirely true either. While Bill C-69 emerged after nearly two years of stakeholder engagement, it doesn’t reflect that engagement.
After the government’s own expert panel on environmental assessment processes issued its comprehensive report based on extensive, coast-to-coast stakeholder engagement, the government immediately distanced itself from the panel’s report in response to industry criticism. The expert panel’s recommendations are barely recognizable in Bill C-69.
The dangers of incremental climate action
Finally, Suits and Boots argues that Bill C-69 transforms Canada’s voluntary climate commitments into legal obligations that our trading partners could use against us.
The bill’s defenders point out, however, that its transitional provisions pose no litigation threat to the Trans Mountain pipeline expansion project, and that the requirement to consider — but not necessarily comply with — Canada’s climate commitments is “wobbly” at best. The bill’s defenders conclude that Bill C-69 introduces incremental — not radical — changes to the present environmental assessment regime.
The trouble with this defence is that it’s entirely true. Bill C-69 does allow the government to continue approving projects like Trans Mountain that undermine our efforts to reduce GHG emissions and transition to a decarbonized economy.
As the UN Intergovernmental Panel on Climate Change’s (IPCC) latest report makes clearer than ever before, we’re running out of time to change our policies and regulations to prevent catastrophic climate change. According to the IPCC, we need to make rapid, unprecedented and systemic changes in how governments, industries and societies function.
Bill C-69 is not up to this admittedly daunting task. While the bill pays laudable lip service to the imperatives of mitigating climate change, respecting the rights of Indigenous peoples and promoting sustainability, the bill is a missed opportunity to base economic project assessments on those imperatives.
The dangers of stranded assets
Now, to give credit where credit is due, Suits and Boots is right that Bill C-69 will heighten uncertainty among company managers, project developers and investors. The bill’s defenders don’t have a response to this. But neither does Suits and Boots. Say the Senate does kill Bill C-69, then what?
Canada should assess all economic projects on the cumulative basis of a “net contribution to sustainability test.” If a proposed project doesn’t make an overall contribution to sustainability and decarbonization, then it doesn’t proceed. Period. Seems like certainty enough for industry proponents and investors.
Still unconvinced? Still think “rip and ship” extractivism trumps environmental protection? Like Prime Minister Justin Trudeau, do you agree that no country would find 173 billion barrels of oil in the ground and just leave them there? Then consider a recent macroeconomic analysis of the risks of “stranded” fossil fuels assets. Limiting global warming to 1.5℃ above the pre-industrial norm requires that we leave — essentially strand — a large proportion of fossil fuel reserves in the ground.
Canada is jeopardizing its economic future by subsidizing oil and gas extraction while underinvesting in renewable energy production and transmission. Even if countries like China and the United States don’t adopt stringent climate policies, ongoing advances in renewable energy generation, transport fuel efficiency and transport electrification are projected to lower demand for fossil fuels and reduce the GDP and employment levels of oil and gas exporters like Canada.
Neither the detractors nor the defenders of Bill C-69 appear to grasp the urgency of radically reorienting our assessment processes toward sustainability. It’s time to change the conversation.