On 20 October 2008 the Federal Court dismissed three applications for judicial review that had been brought by Friends of the Earth against the federal government for non-compliance with the Kyoto Protocol Implementation Act. The Canadian decision is important because it provides guidance on the circumstances in which a court will find breaches of climate change regulations.

FACTS

On 22 June 2007 the Kyoto Protocol Implementation Act (the “Act”), introduced by Liberal MP Pablo Rodriguez, became law. It passed in both the House of Commons and the Senate without the support of the Government. Section 5(1) of the Act calls for the Minister of the Environment to prepare, on a fixed timeline, a Climate Change Plan that includes a description of measures to be taken to ensure Canada meets its Kyoto commitments. Section 7 calls for the Governor-in-Council to make, amend or repeal regulations to ensure that Canada meets its Kyoto commitments. Section 8 calls for such regulations to be published in the Canada Gazette for consultation purposes. Section 9 calls for the Minister to publish the greenhouse gas reductions anticipated from such regulations.

The Minister published a Climate Change Plan on 21 August 2007. The Climate Change Plan “makes it very clear that the Government of Canada has no present intention to meet its Kyoto Protocol commitments.”1 The Climate Change Plan states that for Canada to meet its Kyoto commitments would cause a 6.5% reduction in GDP and that, by comparison, the Great Depression involved a reduction in GDP of 4.9%.2 As required by the legislation, the National Roundtable on the Environment and the Economy analyzed the Plan and concluded that Canada’s emissions would exceed those permitted by Kyoto by 34%.3 Further, the Governor-in-Council did not proceed with any regulatory action contemplated by Sections 7 through 9 of the Act.

ISSUES

The Court considered the following three issues:

1. Whether Friends of the Earth had standing;

2. Whether Section 5 of the Act imposes a justiciable duty upon the Minister to prepare and table a Climate Change Plan that is Kyoto-compliant; and

3. Whether Sections 7 through 9 impose justiciable duties upon the Governor-in-Council to make, amend or repeal environmental regulations with the timelines stated therein.4

ANALYSIS

1. Whether Friends of the Earth had standing

The Court held that Friends of the Earth met the requirements for public interest standing.

2. Whether Section 5 imposes a justiciable duty on the Minister to formulate a Kyoto-compliant plan

The Court began by noting that Parliament has the power to reserve for itself the sole enforcement role, and that such Parliamentary intent is to be derived through statutory interpretation.5 The Court then began down the path of declining judicial review:

If the intent of s. 5 of the Act was to ensure that the Government of Canada strictly complied with Canada’s Kyoto obligations, the approach taken was unduly cumbersome. Indeed, a simple and unequivocal statement of such an intent would not have been difficult to draft. Instead s. 5 couples the responsibility of ensuring Kyoto compliance with a series of stated measures some of which are well outside of the proper realm of judicial review.6

The Court points to language in Section 5 of the Act requiring the design of measures to ensure a just transition for affected workers and an equitable distribution of reduction levels as mired in policy-laden considerations unsuitable for judicial review.7 In short, “while the failure of the Minister to prepare a Climate Change Plan may well be justiciable, an evaluation of its content is not.”8 The Court placed much emphasis on the frequent use of the word “ensure,” rather than “shall,” throughout the Act, noting the former is not commonly used to indicate the imperative.9

3. Whether Sections 7-9 impose a justiciable duty on the Governor-in-Council to make, amend, or repeal regulations

While conceding that the Court cannot dictate what would be contained in regulations promulgated by the Governor-in-Council under the Act, Friends of the Earth nevertheless argued that the Court could order that some sort of regulations be made. The Court dismissed this argument noting that “the enactment of regulations must be seen as primarily the performance of a political duty which is not judicially enforceable.”10

Further, noting the Act’s extensive consultation and parliamentary reporting requirements, the Court found that Parliament had, with the Act, “created a comprehensive system of public and Parliamentary accountability as a substitute for judicial review.”11 The Court noted, as importing ambiguity, the Act’s frequent use of “ensure” rather than “shall” in connection with compliance obligations.12 Finally, it noted that Section 6 of the Act provides only that the Governor-in-Council may make regulations.13

CONCLUSION

The applications for judicial review hence failed for a number of reasons including

  • the drafters commingled mandatory language with permissive language;
  • the Act called for policy decisions unsuitable for judicial review; and
  • the Act calls for parliamentary accountability rather than judicial review.

With federal cap-and-trade regulations on the horizon, the decision suggests that any complaints of federal environmental (in)action will need to be taken up with the electorate rather than with the judiciary.