C-69

Parliamentary Placebos: Laws Intended to Make You Feel Good (that don’t actually do good)

The Canadian Net-Zero Emissions Accountability Act: A Placebo Law?

Note: A fuller, more detailed version of this post will be published in the December issue of the Energy Regulation Quarterly, available here. I thank the editors of the ERQ for their careful editing and assistance with citations. However, any errors in either version of this article remain my responsibility.

Background

With the rise of social media, governments have realized that most journalists read media releases and Twitter, not statutes. And the public reads what journalists write.  This has led to the enactment of some statutes which are more like public relations statements than real laws.

For example, on June 30, 2021, Canada’s Department of Environment and Climate Change issued a news release announcing that Bill C-12, the Canadian Net-Zero Emissions Accountability Act (hereafter, the “Accountability Act”) had become the law in Canada.[1]  The headline of the news release was:

“Government of Canada legislates climate accountability with first net-zero emissions law.” 

The Trend to Feel-Good Laws

More Canadian laws now contain lengthy preambles, vague or circular definitions[2], little substantive content and glowing descriptions in Ministers’ speeches of what these laws are supposed to accomplish.  The strategy is to make the public feel good about the government’s virtuous intentions without arousing too much political resistance.  Such a law is a “feel-good law,” a legislative placebo rather than an effective piece of legislation. 

The well-known placebo effect in drug testing is being copied by politicians in laws designed to create the illusion that essentially symbolic, useless or even harmful laws with nice-sounding language will be a cure for our ills.

The June 30, 2021 News Release on the Accountability Act

After summarizing the targets and commitments in the legislation the government’s news release emphasizes that “The Act also provides accountability and transparency…” in a variety of ways.

The news release quotes the Minister as saying

“We promised to legislate net-zero emissions by 2050 and put in place legally-binding targets, and yesterday we delivered on that promise.…”

But legislating that something should happen doesn’t mean it actually can or will happen.

The Law’s Stated “Purpose” Clause

“The purpose of this Act is to require the setting of national targets for the reduction of greenhouse gas emissions based on the best scientific information available and to promote transparency and accountability in achieving those targets, in support of achieving net-zero-emissions in Canada by 2050 and Canada’s international commitments in respect of mitigating climate change.”[3]

The stated purpose cannot be the real purpose. So what is the real Purpose?

What is the Real Purpose of the Act?

It is Not the Setting of National Targets

The Harper government set greenhouse gas emissions reduction goals for the Paris Agreement as part of government policy, without any legislation.  These goals were, until recently, accepted by the Trudeau government, also without any legislation.  What changed? Why is this legislation being enacted now?  It cannot be because emission reduction targets require legislation. 

It is probably for two political reasons.  First, because the legislation will make it more difficult politically for future governments to reduce, or to fail to meet the legislated goals.  And second, because legislating the target will enable lawsuits to enforce the government’s compliance with its own law.

An increasing number of court cases are brought by environmental advocates, sometimes representing children[4], arguing that challenges to government climate policy are legal questions that should be decided by judges.  These plaintiffs demand that governments carry out the advocates’ proposed climate policies.  If these policies are legislated winning such litigation becomes a lot easier.

Government defendants in such lawsuits may be glad to be sued, and may not defend the suit vigorously.  If the legislated emission targets are not being met this litigation enables the government to justify its actual achievements as realistic compared to the claims in the lawsuits.  It also enables the government to justify settling the litigation by taking legislative action such as increasing the carbon tax.  Given the facilitation of lawsuits, the Accountability Act might well be nicknamed the “Sue Me Please Act.”

It is Not To Promote Transparency and Accountability

The government seeks to sell this law as adding an important element of transparency and accountability to its reporting requirements.  But the government can be, and should always be, transparent and accountable without passing a new law every time they wish to be transparent and accountable.

The federal government is already committed to file reports with the United Nations (UN) every two years on all major climate change measures undertaken by federal and provincial governments.  It is also required to file reports every five years on emissions reduction measures under the 2015 Paris Agreement, to which Canada is a signatory.  These reports are not secret, but publicly available on the website of Environment and Climate Change Canada.  Furthermore, the Commissioner on the Environment and Sustainable Development (a branch of the Office of the Auditor General of Canada) also issues periodic reports on the performance of federal departments and the government as a whole in meeting their program objectives.  Although the new legislation is presented as creating transparency and accountability, that cannot be its real purpose because even without this legislation there is already complete transparency, which creates accountability.

That said, the legally required information will not be transparent on the single most important policy issue: the cost to Canadians. The rate and manner of CO2 reduction will determine the cost to you and me and our children and grandchildren. Without knowing the costs, year by year, there is no way to judge whether the costs are affordable and the benefits are significant. 

The claimed benefits are (i) the reduction in Canada’s greenhouse gas emissions, and (ii) that this domestic reduction will reduce the adverse effects of climate change on the Canadian climate and weather.  However, Canadians have, for almost two centuries, relied on hydrocarbons to eat, heat and light their homes or transport themselves, their children and their food.  To eliminate all of these essential sources of life in under 30 years is unprecedented, with a high risk of failure. Embracing this radical change without disclosing its costs and risks is at best opaque and at worst misleading. It is inconsistent with the professed objectives of greater transparency and accountability.

The rush to achieve net-zero will create winners and losers.  Pursuing the target will make all forms of transportation, home heating, electricity and food much more costly for all Canadians.  This will particularly hurt low income consumers and smaller businesses.  At the international level, as the West reduces its purchases of coal and natural gas, it makes these fuels cheaper for China to purchase, further enhancing China’s international competitive position.  In effect, the developed countries of the West are off-shoring emissions to the developing countries, thereby off-shoring production, jobs and investment, while creating no net CO2 reduction.  In the global economic competition the winners are likely to be the ones who reduce their emissions last and by the least.  The emission reduction leaders will be the losers.

University of Manitoba Professor emeritus Vaclav Smil is a globally recognized energy transitions authority.  In his several books and articles[6] he has shown that the number of years that it has historically taken for new sources of energy to surpass just 25 per cent of energy use in a country is typically 50–70 years.  It takes many more decades to become a dominant energy source. 

Professor Smil recently wrote[7]:

“The most important fact is that during those decades of rising concerns about global warming the world has been running towards fossil carbon, not moving away from it…emissions have nearly tripled in Asia, largely because the Chinese combustion of fossil fuels has almost quadrupled.  As a result, global emissions of CO2 increased by more than 60 per cent since 1992, setting yet another record in 2018. …

Designing hypothetical roadmaps outlining complete elimination of fossil carbon from the global energy supply by 2050 is nothing but an exercise in wishful thinking that ignores fundamental physical realities.…The complete decarbonization of the global energy supply will be an extremely challenging undertaking of an unprecedented scale and complexity that will not be accomplished – even in the case of sustained, dedicated and extraordinarily costly commitment – in a matter of a few decades.”

It is easy for politicians in any country to seek power with promises to fight climate change that cannot be kept until long after they’re out of office.  China has recently said that it will reach net zero by 2060, 40 years from now.  By that date, if he is still alive, President Xi Jinping will be 106 years old.  By the 2050 US and Canadian target dates President Joe Biden would be 107, and Prime Minister Justin Trudeau, 78.  None of them will be leaders of their countries at these times.  If their promises are impossible to keep they will not bear the political consequences.

It is Not to Save the Paris Agreement

Canada has made no Paris Agreement commitment requiring us to legislate for any level of greenhouse gas emissions reductions. The Paris Agreement has been widely misrepresented in the Western media, and therefore, widely misunderstood by Canadians.  It has repeatedly – and wrongly – been described as a top down international agreement to which individual nations have made binding commitments to reduce their emissions, thereby limiting global average temperature increase by 2100 to 2°C, and preferably, 1.5°C.  The Agreement is actually a bottom up agreement that set no requirements for any reductions; it permits each of the 195 country signatories to set its own “nationally determined contribution” (NDC). This “contribution” can be to increase emissions if the country so wishes, and many large emitters have chosen to do so.

The Organization for Economic Co-operation and Development (OECD) countries, mostly of the developed West, represent only approximately one third of global emissions. They have presented various reduction NDCs. But the developing countries, mostly of Asia and Africa, already represent approximately two thirds of global emissions, and rising. Most of these countries have not promised to reduce their emissions because such reductions would jeopardize their efforts to reduce the poverty of their people, many millions of whom still have no access to electricity. Their determination to increase their emissions will, in the aggregate, cancel out the promised decreases.

Since 2010, most of the CO2 emissions growth has occurred in the non-OECD countries.[10] In the plans that the developing countries have submitted to the UN, they have generally conditioned any future emissions reductions (or even reductions in the rate of increase) on massive funding from the OECD countries.  On March 13, 2021, Pakistan’s prime minister warned[11] that developing countries would need about US$400 billion per annum in climate finance support to shift toward low carbon development pathways.  Yet developed countries have thus far failed to deliver, even once, the $100 billion per annum they promised under the Paris Agreement.  Part of the reason for the funding reluctance is the sheer amount demanded, and part is because of skepticism that each of the recipient countries spends its funding to reduce emissions effectively and efficiently. India has called the West’s 2050 net-zero targets “pie-in-the-sky.”  India’s energy minister said that poor nations want to continue using fossil fuels and the rich countries “can’t stop it”.[12]

Here is a simplified analogy to consider.  Assume, hypothetically, that 195 people are gathered in a large room in Paris, for the purpose of fundraising.  The host announces the target to be raised, a painfully large amount for the assembled individuals.  No one is compelled to contribute anything, but everyone is encouraged to make generous pledges.  However, there are two rules. First, anyone can chose whether to put money into the fund or take money out of the fund, as they wish: from each according to their ability, to each according to their needs.  The other rule is that the proceeds will be donated to the needy among the 195 present.   What will the net amount in the fund be when all the pledges are received? Perhaps a lot like the actual result of the Paris Agreement, i.e., almost nothing.

When we add up and net out the nationally determined reductions and increases under the Paris Agreement, even if all of the countries fully comply with their NDCs (which few have done so far), the net impact on global temperature increase by 2100 would be insignificantly small, within the range of measurement error.  The 2°C target is political, not scientific, and the UN adopted it as the aspirational goal of the Agreement.[8] After 2015, as the NDCs were published, it very quickly became obvious, based on what countries actually committed to, that the goal cannot be reached.[9] Too many large countries promised to increase, not decrease their emissions. Thus, there is no real connection between the 2°C goal and NDCs, and therefore, no basis for believing that if all countries comply with the Paris Agreement the global average temperature increase will be limited to 2°C.

There is growing recognition of the huge disconnect between the aspirational 2°C goal and what the 195 signatory nations have actually said they intend to do.  As Nobel prize-winning economist William Nordhaus has written in the American Economic Association Journal of August 2018[13]:

“The reality is that most countries are on a business-as-usual (BAU) trajectory of minimal policies to reduce their emissions.…  The international target for climate change with a limit of 2°C appears to be infeasible with reasonably accessible technologies even with very ambitious abatement strategies.”

Regardless of what Canada does, the Paris Agreement, like its predecessor accord, Kyoto (entered into force on 16 February 2005), is already evidently a failure. And Canada hasn’t been helping.

According to Canada’s 2021 National Inventory Report (NIR) on greenhouse gas emissions submitted to the UN, our national emissions in 1990 were 600 Mt of carbon dioxide equivalent (MtCO2e).  By 2017 they had increased to 716 MtCO2e (+19.3%) and by 2019, to 730 MtCO2e (+21.7%).  Since 1990, in every year but three, Canada’s emissions have increased.  As we emerge from the pandemic lockdowns further increases are likely, added to by population growth.  

What the Accountability Act Does Not Require

The Accountability Act requires the federal government to set targets and report on the extent to which it is meeting those targets.  But it does not require Canada to meet the 2050 target.  Nor is there any penalty set out for failure to do so.

Uncertainty and Confusion in the Federal Media Release

Another federal media release (August 13, 2021), optimistically titled “Net-Zero Emissions by 2050”, announced that in February 2021 Ottawa established an independent advisory group of experts to consult with Canadians and provide the government with advice on the best pathways to achieving net-zero emissions by 2050.  This begs the question: why is the government enshrining in legislation a target that requires an advisory body to show it how to meet?

In explaining what achieving net-zero means, the media release states:

“Achieving net-zero emissions means our economy either emits no greenhouse gas emissions or offsets its emissions, for example, through actions such as tree planting or employing technologies that can capture carbon before it is released into the air.  This is essential to keeping the world safe and livable for our kids and grandkids.”[14]

There are two problems with this paragraph: the first sentence and the second sentence.

As for the first sentence, there is no technology that would enable the entire Canadian economy to emit no CO2.  Today, and for the foreseeable future, there are no battery or hydrogen-powered passenger jet aircraft, oceangoing cargo ships, large transport trucks or farm tractors.  Planting trees is not really a long-term solution because it may take decades for them to grow to a substantial height, and, although they absorb CO2 during their growth period, when they die they decompose, releasing the CO2 they have absorbed.  As for carbon capture, although it is technically feasible and being done, it is not yet economic on anywhere near the scale that would be required to offset Canada’s reasonably foreseeable emissions.[15]   Nor is it possible to capture CO2 “before” is released into the air from the literally millions of sources of CO2 emissions in Canada – every home, every car, every office and factory would need to have some sort of effective carbon capture device. These do not yet exist, even on paper.

The second sentence appears to equate Canada with the entire world.  If Canada achieves net-zero, will that really keep the climate created by the emissions of the entire world safe and livable for our kids and grandkids in Canada?  Of course not.  Canada represents only 1.6  per cent of global CO2 emissions. The remaining 98.4 percent determines the planetary climate. That’s why global climate change it is a collective action problem not an individual nation problem. 

Climate Change is a Collective Action Problem

The media release also seems confused about climate change. The CO2 we emit doesn’t stay above Canada, and the CO2 other nations emit doesn’t stay out of Canada.  There is no CO2 wall around the country.  Therefore, if “keeping the world safe and livable for our kids and grandkids” requires reaching net-zero, that means net-zero for the entire world.  It is ignorant and misleading for our government’s media release to imply that if Canada can achieve net zero that will keep the world safe and livable for our kids and grandkids, regardless of the emissions of all the other 98.4 percent.

Other Examples of Placebo Legislation

The current government in Ottawa is by no means the only one presenting placebo legislation; neither is it limited to climate change.  Placebo legislation has been increasing in frequency since approximately the beginning of this century, both in Canada and elsewhere. Here are just three examples, each of which I have examined in earlier posts.

BC’s “Enshrinement” of UNDRIP into BC Law

In 2019 the BC government announced, to unanimous applause in the BC Legislature, that it was the first Canadian province to enshrine the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) into law.  But BC’s new law didn’t actually do that, for reasons I have explained at the link below. This law makes people feel good but it doesn’t do good – at least not yet. Read the full post here: UNDRIP

Bill C-69, the Canadian Impact Assessment Act (SC 2019, c 28, s 1) (hereafter, the IAA)

In 2012 the Harper government transferred the power to make decisions about pipelines and similar projects from the National Energy Board to the federal cabinet.  Then the expert agency that heard all the evidence decided nothing; it just prepared a report. But those who heard nothing, the cabinet, decided everything.  The IAA, presented as fixing the 2012 law, not only preserved this fatal flaw, it introduced others, as I have explained at the link below. I have suggested in testimony before the Canadian Senate that this legislation might well be called the “No More Pipelines Act.”[16] Read the full post here: Impact Assessment Act.

The Paris Agreement

After the failure of previous international climate agreements the UN decided to try again with Paris.  It will not succeed, for reasons I have explained above, and more fully at the link below. The UN chose to pretend to do the impossible:  limiting global warming to 2°C, with no known means of achieving it. That PR objective is the real purpose of the Paris Agreement.  In effect, the Paris Agreement is an international political placebo. Read the full post here: The Paris Agreement.

Conclusion

Climate change, — the change in the mean global temperature — is a global issue that is neither locally caused nor locally cured.  Canada’s Accountability Act, and the extensive government PR blitz promoting it, wrongly asserts that legislating the target will be a useful and effective new law for making the entire world safe and livable for our children and grandchildren.  Real, useful, transparent laws generally do not say, in effect, “we intend to move towards accomplishing this in under 30 years, but we have no idea how to do it or what the costs will be.”  This is not so much a law as a public relations statement presented as a law. 

Passing legislation about a target assures neither that Canada can attain the net-zero goal in under 29 years nor that the costs and benefits of our attempting to do so are justified.

Don’t get me wrong. I am not saying that Canada should do nothing whatsoever about the effects of climate change. But our government should not embark on a legislated journey to an unreachable destination on an unknown route, with the entire voyage paid for with undisclosed amounts of your and my money.

Does this placebo law make you feel better? It doesn’t do it for me.


[1] Environment and Climate Change Canada, News release, “Government of Canada legislates climate accountability with first net-zero emissions law” (June 30, 2021), online: <www.canada.ca/en/environment-climate-change/news/2021/06/government-of-canada-legislates-climate-accountability-with-first-net-zero-emissions-law.html>

[2] See e.g. Impact Assessment Act, SC 2019, c 28, s 1, which has a preamble of several clauses that merely state what the Government of Canada recognizes, which would not be of any great assistance to a court in statutory interpretation.  It then goes on in the definition section, s 2, to define “Indigenous knowledge”, which is given special statutory status in that Act, as: “Indigenous knowledge means the Indigenous knowledge of the Indigenous peoples of Canada.” How will this help to determine whether the evidence to be presented by an Indigenous group’s witness at a public hearing is or is not Indigenous knowledge in the statutory sense?

[3] Canadian Net-Zero Emissions Accountability Act, SC 2021, c 22, s 4.

[4] See e.g. La Rose v Canada, 2020 FC 1008 (unsuccessful) and Mathur v. Ontario, 2020 ONSC 6918, brought by the environmental law firm Ecojustice, was successful against Ontario’s motion to strike out the case.

[5] See e.g. Vaclav Smil, “It’ll Be Harder Than We Thought to Get the Carbon Out” (June 2018) 55:6 IEEE Spectrum 72, online (pdf): <vaclavsmil.com/wp-content/uploads/2018/09/Smil-Essay-IEEE-Spectrum-June-2018.pdf>. See also Vaclav Smil, “What we need to know about the pace of decarbonization” (2019) 3:2 Substantia (Suppl. 1) 13.

[6] Vaclav Smil, “What we need to know about the pace of decarbonization” (April 2020) at 2, 4, online (pdf): Johnson Shoyama Graduate School of Public Policy <www.schoolofpublicpolicy.sk.ca/documents/research/policy-briefs/jsgs-policybriefs-pace-of-decarbonization_web.pdf>.

[7] Bjorn Lomborg, False Alarm (New York: Basic Books, 2020) at 24–25.

[8] Jeff Tollefson, “The hard truths of climate change – by the numbers”, Nature (18 September 2019), online: <www.nature.com/immersive/d41586-019-02711-4/index.html>.

[9] British Petroleum, “Statistical Review of World Energy, 69th Edition” (2020), online (pdf): <www.bp.com/content/dam/bp/business-sites/en/global/corporate/pdfs/energy-economics/statistical-review/bp-stats-review-2020-full-report.pdf>

[10] See GWPF & BBC News, “Net Zero agenda faltering: ‘Pie in the sky’” (1 April 2021), online: NetZero Watch < https://www.netzerowatch.com/net-zero-agenda-faltering-pie-in-the-sky/&gt;.

[11] Ibid.

[12] William Nordhaus, “Projections and Uncertainties about Climate Change in an Era of Minimal Climate Policies” (2018) 10:3 American Economic J: Economic Policy 333 at 333–34, online (pdf): <pubs.aeaweb.org/doi/pdfplus/10.1257/pol.20170046>.

[13] Ibid.

[14] Jeffrey Rissman & Robbie Orvis, “Carbon Capture and Storage: An Expensive Option for Reducing U.S. CO2 Emissions”, Forbes (3 May 2017), online: <www.forbes.com/sites/energyinnovation/2017/05/03/carbon-capture-and-storage-an-expensive-option-for-reducing-u-s-co2-emissions/?sh=127f85846482>.

[15] Senate, Standing Committee on Energy, the Environment and Natural Resources, Issue No. 58 – Evidence (2 April 2019), online: <sencanada.ca/en/Content/SEN/Committee/421/enev/58ev-54639-e>.

9 replies »

  1. What I find particularly interesting about Andrew Roman’s analysis is that reducing OUR demands on coal and gas lowers the cost of these commodities for developing countries like China, and so serves to increase THEIR consumption of these commodities. So this seemingly altruistic lowering of our demands does nothing to reduce net emissions. Does that mean that all of this reduction-talk has this nothing to do with “saving the planet”, but rather that it’s about redistributing the goodies of life globally in the interim? If so – and I emphasize the ‘if’ here – perhaps we should be translating the discourse into what it’s REALLY all about.

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  2. Income and wealth distribution from OECD countries to China and India and other developing countries is not intended. It is the inadvertent result of eco-panic to “save the planet”, and politicians seeking praise and votes for appearing to fight climate change more aggressively than other politicians.

    China now controls about 75% of wind turbine manufacturing, the same or more share of solar panel manufacturing, and has control over much of the world’s current mining of rare ingredients for batteries for electricity storage.

    So China manufactures and sells us a great many popular goods, plus solar panels, wind turbines and soon, much of the content of electric vehicles, at lower prices than Western countries could set up machinery to manufacture them. The lower prices are from lower wages, economies of scale, laxer environmental laws and the extensive use of coal as the energy source.

    Canadian electricity is quite low emitting, generated largely from hydro and nuclear, as well as some solar and wind. However, as we have shut down coal generation of electricity, prevented pipelines and locked in a lot of domestic oil and gas, our escalating electricity and fuel prices drive the further offshoring of investment and business activity. The result for the planet is a substitution of our relatively clean energy for more coal use in China and other developing countries. So the planet is receiving higher, not lower emissions. But in the international climate change bragging competition Canada can say that we have adopted an aggressive net-zero target.

    And then there are the definitional debates. Biomass is considered renewable. Yet forests are being cut down in parts of the US to make wood pellets that are classified as renewable. These pellets are manufactured with energy, then shipped to ocean ports by rail using diesel locomotives, for transport to the UK by diesel cargo ships, to be burned for heat and electricity.

    Nuclear power advocates are pressing to have nuclear energy classified as renewable so that expenditures on it will be eligible for subsidies and other preferential treatment.

    A key issue is the different ways of attributing emissions. The UN only counts production emissions, i.e., emissions produced within the state’s geographical boundaries. It does not look at consumption emissions, i.e. the emissions caused by a nation’s consumption, wherever produced. This encourages offshoring to developing countries (which have lower per capita emissions), while harming the domestic industries and their workers.

    So finally, to answer your “if”, what it is really all about for developed countries is looking virtuous for national voters. What it is really all about for developing countries is lifting their populations out of poverty. If CO2 is really the Satan of planetary destruction then Satan is the winner and the planet is the loser. If not, we may inadvertently be doing the right thing to alleviate global poverty, but for the wrong reasons.

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  3. Andrew,

    This is a great article and reply.

    I can’t quite get my head around however the suggestion that plaintiffs could use the legislation in litigation. How they would be asking the court to make out of it? Would they be asking the court to order the government to actually meet its targets?

    Is that justiciable? Friends of the Earth, [2009] 3 FCR 201 and the Turp v. Canada, [2012] FC 893, although judicial review cases, speak somewhat to that issue. I know that Lorne Sossin says at p. 247 of Boundaries that the court can issue a declaratory judgment but that has always sounded weak to me. I also note that he has always been a big supporter of climate change litigation.

    Jack

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    • I am familiar with the two cases that you cited, and I would agree that they suggest that this type of issue is not justiciable. However, my impression is that the judicial climate has changed since those cases were decided. The concept of justiciability has narrowed. We see that in one of the two children’s cases that I mentioned. That court refused to strike out the plaintiffs’ case for being non-justiciable.

      If you consider what happened in the Netherlands case, that court actually ordered the government to be more in compliance with its stated targets, without specifying exactly how it was supposed to do this. Presumably that is because the court had no idea of how to prepare a specific plan for reducing emissions that would not require either new legislation or regulatory changes that it could not of ordered. That court issued a judgement that amounts to nothing more than precatory language: “We think you should do this to achieve that result”. Courts should decide cases and then make legally binding orders, not offer unenforceable political advice masquerading as a judgement.

      Theoretically, a Canadian court could issue a declaratory judgement that the legislated target has not been met, but what would that accomplish? The fact that the target has not been met would be all over the media as a matter of public notoriety.

      As you know, the only effective remedy would be an order in the nature of mandamus, compelling the government to meet its target. But such an order would be impractical and unenforceable without detailing exactly how the government was supposed to do this. In the past, courts have been unwilling to make orders that were obviously unenforceable at the time they were made. However, that tradition may also be changing. A moral pronouncement by the judiciary may seem more important today than an enforceable order.

      If a Canadian court today wanted to bestow a moral victory on an environmental NGO suing the federal government for failure to comply with its emissions reduction target our court could follow the Netherlands example by holding that the failure to comply with the target was a failure to comply with a legal duty prescribed by statute. It could then make an order – albeit practically unenforceable – that the government shall over the next X years reduce Canadian emissions by an amount that would bring it into compliance with the legislation’s target.

      This court ruling would put the ball into the government’s court as it would have to respond in some way. Politically, it would be difficult for the government to announce that it was not going to comply because the judges had no business making that order. Rather, it would be pressured to increase the rate of emissions reduction in whatever way it wished. It may still not succeed in reaching the target level, but probably it would come closer to it than without the court order. In that case the litigation would have been a success for the plaintiffs.

      Of course this judgment would reduce the constitutional distance between the judiciary and the elected representatives, as the achievement of the legislated target involves a lot more than simply acting or failing to act. It involves making a large number of economic and environmental trade-offs that the courts have no resources or ability to judge. From a separation of powers constitutional standpoint the better answer would be for the court to conclude, as did the Federal Court in the children’s case, that judges should not be deciding such essentially political issues. But the lid is now coming off the box, if it hasn’t already been lifted entirely, making it difficult to predict what is left of the concept of justiciability.

      If the current government had merely announced net-zero as its political objective the courts would have no basis for overruling, or in any way becoming involved in, adjudicating a political objective that could be reduced or eliminated at any time. However, once it is baked into legislation that makes it to some degree de-politicized, effectively inviting the judiciary to interpret or apply the new law. That is probably the main reason for legislating it.

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  4. Odd that individual Canadians, the ones who actually create the emissions as end users of the products and services we consume, seem willing to have their government legislate targets that they (individual Canadians) have no intention of meeting. Yet they will have to submit to compulsion if the courts order their governments to impose compliance. The compulsive gambler asks the casino to bar him…and then gets upset that the casino won’t let him in when he really really wants to play.

    Is this a case of a special interest group—the truly committed Marxist climate zealots—being able to hijack the apparatus of government to create an outcome that ordinary citizens indicate by their uncompelled actions now that they do not want? The apparatus of government is a “black box” to most of us. Andrew has given us a peak under the lid of that black box to glimpse the machinery inside. Thanks ever so much for doing that.

    Or is it the collective-action problem in the second round of the game? (Recall that big collective-action problems are intractable unless a strong sovereign can compel all players in the game, not just some, to behave collectively.) “OK, the sovereign has imposed limits on how many fish can be caught by Canadians. As a fisherman, I will give lip service to this because I suspect the sovereign cannot know how many fish will actually be caught in the aggregate, nor can he effectively limit the number that I myself catch. The fishermen of other countries are cheating too. And when push comes to shove, we can force our weak sovereign to back down in 2050, especially if the international consensus on fish sustainability breaks down before then, as it seems likely to do next month.” — allegorical reference to COP26.

    Finally, political and social unrest, which we need not go into here, could wreck the ability of governments to impose the targets, court-ordered or not. But it could also wreck the ability of the economy to extract and transport resources, some of which by coincidence have large carbon footprints. In this scenario, Canada’s emissions will fall first from internal energy poverty, and then from actual poverty as it becomes impossible to export fossil fuels to earn foreign exchange, and the knock-on consequences for investment here.

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  5. I don’t see this as related to the essential Marxist idea that the state should own the means of production of all goods. Rather, there is some bad science coming out of the IPCC and other institutions which vastly overestimate both the degree of actual warming and the extreme weather consequences of it. This science is amplified and dramatized by the media to paint a far more dangerous picture than even the scientists have. A good description of the uncertainties and exaggerations in mainstream climate science is presented by the distinguished climate scientist Judith Curry, here:

    https://judithcurry.com/2021/10/22/challenges-of-the-clean-energy-transition/

    The first sentence in your question is what I now wish to address:

    “Odd that individual Canadians, the ones who actually create the emissions as end users of the products and services we consume, seem willing to have their government legislate targets that they (individual Canadians) have no intention of meeting.”

    Individual Canadians are not really “willing” to have their government legislate targets in any meaningful sense. They merely acquiesce passively. They see their government and other Western governments legislating such targets and simply assume that they are necessary and desirable without much thought. As well, individual Canadians see these national targets as targets that somehow Canada as a country, but not they, as individuals, will have to meet. That is because our government has never explained what it will cost each individual household in rising prices and taxes, how many jobs will be lost, how many will be condemned to energy poverty, etc. My sense is that when these costs begin to bite there will be a gradual and strengthening pushback.

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  6. Thanks for the Judith Curie link.
    This fits in with your post about our “Made in China Climate Policy” but perhaps more timely here:

    https://www.msn.com/en-ca/money/topstories/china-says-must-consider-supply-chain-food-and-energy-security-when-curbing-emissions/ar-AAPTmsP?ocid=msedgdhp#comments&commentId=3147b37b-d767-4cdf-80ae-ba7c56c3cae9

    China insists that it is maintaining its goal to reach peak emissions by 2030 and net-zero by 2060. However….
    ‘China should “manage the relationship between pollution reduction and carbon reduction and energy security, industrial supply chain security, food security and normal life of the people,” said a cabinet document published by official media Xinhua. [italics mine]

    ‘It also called for an effective response to the economic risks of green and low-carbon transition, to “prevent overreaction, and ensure safe carbon reduction”.’

    Like

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