It is a saga. A story of love and betrayal; of heroics and scandal; of a fight to the death for the future of the planet. It is at least the story of an overwrought and oversold piece of legislation called Bill C-30, The Clean Air Act.
The Harper government came to power pledging to give priority to five things. Its demi-decimal determination did not include any actions for the environment. Nothing was said that suggested the Harper government would do more than allow its first environment minister, the bright and badly used Rona Ambrose, to try to dance fast enough that no one would notice that Canada’s commitment to action on climate change was a thing of the past.
The climate issue had been invisible in the 2006 election campaign. The announcement by Stephen Harper that a future Conservative government would feel free to ignore legally binding targets in the Kyoto Protocol was made late in the campaign, in an offhand way to a French-language reporter for Canadian Press in Halifax. It was virtually ignored by the major national newspapers. (Only the Toronto Star gave it a front-page reference. It was invisible in the Globe and Mail, not even rating a mention in the Globe’s summary of environmental positions of all major parties published the Saturday before election day.) Sixty-four per- cent of Canadians voted for parties that supported Kyoto, and no doubt many of those who voted Conservative did so even though they also favoured implementation of Kyoto.
Learning from 2004, the Conservative statements were murky on the party’s commitment to action on climate change. Lacking any media scrutiny or traction in the cam- paign, the difference between supporting a ”œmade-in- Canada plan for greenhouse gas emission reductions” and pursuing Kyoto was far too nuanced for voters who support- ed Harper to be dubbed anti-Kyoto.
Ambrose kept up a steady stream of deeply opaque rhet- oric. On CTV’s Question Period on May 21, 2006, Ambrose’s tap-dancing performance included the following mind- numbing monologue:
Our strategy is to help the international community to reach a consensus on climate change. We want to see everyone at the table. It’s a crucial time in the talks in Bonn right now. It’s a crucial time for climate change, the climate change international debate, and Canada has come to the table with a belief and a position that we need to see everyone at the table. We need to emerge from these talks with a comprehen- sive and an inclusive approach that includes all countries. That is what that document shows, and actually that docu- ment, Jane, was a draft docu- ment that ended up being our public document that’s posted on the United Nations website. So we’ve always been transpar- ent about how we feel. The Prime Minister has been clear that we feel very strongly that all countries have to contribute to this global problem. And Canada’s ready to contribute and we want to see all coun- tries at the table.
Deciphering the above requires recourse to the ultimate authori- ty in bafflegab and nonsense, Lewis Carroll. For a plain explanation of Harper’s climate policy, viewers might as well have heard ”œTwas brillig and the slithy toves did gyre and gimble in the wabe.”
The public was not deluded by the doublespeak, and Prime Minister Harper and his inner team realized an environmental initiative was required. By summer, the Harper government was making noises about a new initia- tive to tackle clean air. The first touted effort was described as ”œGreen Plan 2.” This raised hopes of a serious follow-up to the Mulroney Green Plan of the early 1990s. Revisiting the Green Plan, brought forward by then environment minister Jean Charest, would have been a good foundation for Harper’s environ- mental policy. Much that was good in that plan had been lost through Liberal budget cut-backs and neglect.
For example, the cancellation of the State of the Environment report, launched by the Mulroney government and cancelled by the Chrétien govern- ment, reduced fundamental informa- tion that guided policy. This report relied on solid data collection, much of which has also been cancelled, to pull together an authoritative, publicly accessible report on Canadian progress in meeting environmental indicators. When it was cancelled, Alberta com- mentator Andrew Nikiforuk compared it to a blind man selling his guide dog as a cost-cutting measure.
That said, it must be noted that the Mulroney Green Plan has increased in lustre particularly in hind- sight due to the poor performance of governments since. The reality is that the first Green Plan was more a fund than a plan.
A revised and updated Green Plan 2 would have been a sensible approach, but as the weeks wore by, Ambrose, appearing before a parliamentary com- mittee, began the process of lowering expectations. It would not, she said, be as much a ”œplan” as an ”œapproach.”
In Vancouver, in early October, the Prime Minister assembled a photo op in which he announced that a new bill would emerge soon. The Prime Minister promised a Clean Air Act, but provided no details. He took a swipe at Kyoto, bragging that his new plan was not developed in an ”œexotic location.” He dragged Environment Minister Rona Ambrose, Natural Resources Minister Gary Lunn and Health Minister Tony Clement to Vancouver, where they par- ticipated in the press confer- ence without being allowed to speak. As Don Martin quipped in the National Post, they filled the role usu- ally played by potted palms, arrayed in a tasteful semi- circle behind their boss.
By the time Minister Ambrose announced the Clean Air Act, at a briefing interrupted by a fire alarm in Centre Block, allowing reporters a breath of actual fresh air as Ambrose stumbled through her pres- entation, it was the most overhyped legislation in Canadian environmental law history. This alone is really quite an accomplishment, Canadian green rhetoric usually exceeding substance.
Rather than being a new Act, it was, in fact, a set of amendments to Canada’s existing Canadian Environmental Protection Act. That Act had in 1986, when first unveiled, been described by the environ- ment minister as the strongest environ- mental law in the Western hemisphere. It wasn’t, but it was surely more than ade- quate, without amendment, to meet the stated goals of Minister Ambrose and Prime Minister Harper.
When revealed, Bill C-30 was cer- tainly underwhelming. It was, as noted, not a new piece of legisla- tion, but a set of amendments to the existing CEPA.
In addition to the legislative amendments, there was also a notice of intent to regulate. It was in the notice of intent that the Harper government’s first and, to this date, only greenhouse gas reduction target was revealed. While Kyoto targets are set against a 1990 base- line of emissions, the Harper government moved into a unique stance, gauging emissions reductions against 2003 levels. With this deft sleight of hand, its goals started against a base- line 20 percent higher than that of any other government in the world. While Kyoto pledges reductions of 6 percent below 1990 levels and scientists urge reductions of 30 percent below 1990 by 2020, leading to 80 percent below 1990 by 2050, the Harper target was 45 to 65 percent below 2003 levels by 2050. Many in the media latched on to the absurdity of the year 2050 as the target. However, what was far more worrying was that the 2050 goal when translated into the base year used by the rest of the world became a goal for massive sea level rise and dangerous climate instability. By 2050, Harper’s government would have had us achieve the levels of reductions now under- stood to be urgent by 2020.
The Bill itself, as it stood on first reading, represented a sub- stantial threat to the federal government’s ability to regulate greenhouse gases and air pollu- tion. That reality was entirely missed by media coverage, and requires some explanation.
The existing CEPA contained all the legislative powers required by a government to meet the goals of reducing air pollution and meet- ing Kyoto targets. What is more, the existing legislation has already faced a constitutional challenge that went all the way to the Supreme Court of Canada. Hydro-Québec had challenged the con- stitutional purview of the federal govern- ment to regulate toxic substances in the face of a federal regulation within CEPA to control PCBs. In the majority opinion, Justice Gerald LaForest had ruled that the concern for toxic substances was a legiti- mate matter of national concern, and the law withstood the challenge. Part 5 of the Act allowed for ”œtoxic” to be defined in a fashion well beyond a lay understanding of something poisonous. It also included any substance that, when released into the environment in sufficient quantities, could cause serious or irreversible environmental damage. In that context, greenhouse gases met the definition of ”œCEPA toxic.”
The use of the word ”œtoxic” to describe greenhouse gases had proven controversial and delayed action in the previous government. As then Conservative environment critic Bob Mills had argued, babies exhale carbon dioxide. ”œAre we to conclude that baby’s breath is toxic?” Industry groups had long lobbied to change the nomenclature for fear that otherwise non-toxic regulated substances would be labelled ”œtoxic,” which would hurt their trade in commerce.
In the spring of 2005, Environment Minister Stéphane Dion had decided to regulate GHGs using CEPA. In order to avoid the perception problem around the word ”œtoxic,” the government of the day attached the permission to reg- ulate GHGs under CEPA, while amend- ing the Act to remove the word ”œtoxic,” to the budget implementation bill. It was audacious and designed to get reg- ulations in place for greenhouse gases. And it nearly brought down Paul Martin’s minority government.
The leader of the official opposi- tion, Stephen Harper, savaged the tying of amending CEPA and regulating GHGs to a budget implementation bill. And, in a strange twist, the media reported he was aided by environmental groups.
The environmental movement had split over the proposal. Those groups focusing their work on climate change thought the approach was acceptable and that anything that moved GHGs to speedy regulation was a good idea. Those groups working on toxic chemical regulation were out- raged, believing that any effort to remove the word ”œtoxic” was part of an industry plot and must be vigorously opposed. As head of the Sierra Club at the time, I wrote to the Globe and Mail and suggested that the environmental groups’ criticism constituted ”œfriendly fire” and should not be lumped in with Harper’s efforts to block action to regu- late GHGs. Sadly, the effort to regulate within the budget implementation bill was stillborn. As the budget implemen- tation bill was clearly a ”œmoney bill,” the vote would be one of confidence, and its defeat would have brought down the government. The GHG regulation and CEPA amendment sections were removed.
As regulations of GHGs for those large industries strangely known in the governmental lexicon as ”œlarge final emitters” was a part of Dion’s ”œProject Green” (a belated and weak cli- mate plan that was the best thing offered in a dozen years of non-plans), Dion resolved to move ahead with regulations, regardless of the presence of the word ”œtoxic” in the definition.
In the fall of 2005, Dion succeed- ed in taking the first step to regulate GHGs in Canada. He added the six GHG chemicals to schedule A of CEPA. As CEPA works one chemical at a time, through scheduling and then regulat- ing, the Act was completely primed to enforce binding reductions on GHG at the very moment the Martin government fell.
In order to regulate GHGs, no new legislative powers were required. There was no need for a new Act.
Strangely, the new Act removed air pollution and GHGs from the safe, pre- tested, Supreme-Court-approved part 5 of the Act, and added a part 5.1, dump- ing all air pollutants and GHGs in the new section and absurdly referring to a new part 5.1 as a ”œclean air act.”
The new Act was further vulnerable to a future court challenge through its poor drafting. The definition section split GHGs apart from air pollution, clearly defining ”œair pollution” so as not to include ”œgreenhouse gases” (GHGs). It was all rather odd, unless it was delib- erate. The ”œpurpose” section of 5.1 then went on to assert that the goal of the new Clean Air Act was to reduce ”œair pol- lution,” with no reference to green- house gases or climate change. Needless to say, the word ”œKyoto” did not appear anywhere in the Act.
The whole GHG section of the Act appeared designed to fail.
In addition to the strange and weakened air quality and greenhouse gas sections of Bill C-30, there were a few useful new tools. They would usu- ally have been referred to as ”œhouse- keeping measures.” Previous regula- tions had not allowed governmental control of products that create emis- sions, like wood stoves. Previous regulations had failed to have sufficient flexibility for the blending of ethanol fuels. These items were tidied up.
The only useful and innovative things in C-30 were a passage enabling the creation of National Air Quality Objectives, the inclusion of ”œindoor air quality” and the resuscitation of the long-comatose Canadian Motor Vehicle Fuel Consumption Standards Act.
The regulation of vehicle emissions was announced in general in Harper’s Vancouver photo op. In the context of this article’s undercurrent of over- hyped environmental laws and weak delivery, the vehicle fuel regulatory scheme is likely the champ of all time.
In 1981 the Parliament of Canada passed the Motor Vehicle Fuel Consumption Standards Act. Carmakers, in a panic, went to Prime Minister Trudeau and begged for the Act to be scrapped. Regulations to deliver fuel economy had been passed in the United States, where they were known as Corporate Average Fleet Economy (or CAFE), but Canadian carmakers (being American carmakers) lobbied hard against anything but volun- tary measures. The Bill was never pro- claimed. The threat of this law was the basis of a voluntary agreement between carmakers and the government in the early 1980s. That voluntary agreement was the source of Canada’s CAFE stan- dards for about 20 years. The agreement required the same standards in Canada as in the United States. It was successful until Canada expressed a desire to go beyond US law and establish a Canadian standard in Prime Minister Chretien’s first Kyoto plan in 2000. Nevertheless, the Canadian government persisted in wanting a voluntary agreement. However, this time, unlike the 1980s, there would be no US law forcing the manufacturers to improve efficiency.
Ultimately, a new voluntary approach was negotiated and signed in the spring of 2005. In it the carmakers pledged to reduce green- house gases by the equivalent of 25 per- cent, or 5.3 megatonnes, by 2010. Before the ink on the agreement was dry, carmakers had begun to find loop holes. Meanwhile, in the process of lob- bying and pressuring the carmakers, the long-ignored Motor Vehicle Fuel Consumption Standards Act was resur- rected " not as law, but as threat.
By October 2004, Dion was making frequent public threats to regulate the car industry. In the first week of November, he was at the table when the presidents of the five Canadian manufacturers (GM, Ford, DaimlerChrysler, Toyota and Honda) met with the Minister of Natural Resources. His presence at this meeting gave a clear message to the industry for the first time. The industry was now aware that the government was serious. Still, the government blinked. With the industry pushing back and mobilizing in vote-rich southern Ontario, the govern- ment moved from the threat of regula- tions to another voluntary agreement.
The irony that the Harper government was willing to bring in a law passed by a Liberal majority government and ignored by successive Liberal and Conservative governments over a period of a quarter-century is the oddest piece of the tangled web of C-30. That effort was foreshadowed by the last federal government. The threat might have crystallized by 2010 when the memorandum of under- standing runs out, but there was no guarantee of that outcome.
Initial reaction to Bill C-30 was swift and merciless. The opposition parties in the House announced within 24 hours that they would all vote against it. As the new leader of the Green Party, I identified the few useful bits, but stressed that none of them required a new law. Media coverage focused on the least dangerous but easily identifiable weaknesses of the Bill and the intent to regulate. Rona Ambrose continued to claim it was the best thing since sliced bread, but no one seemed to believe her.
It was widely anticipated that the Bill would die at the first call for approval to go to committee.
Then, in the last week of October, Jack Layton saved the Bill. Some specu- lated he wanted to be able to campaign in the London North Centre by-election as having won some green ground from Harper. (As the Green candidate in that by-election, I was not the one who orig- inated this theory, but it gained credibil- ity as NDP candidate Megan Walker mentioned at every venue that Jack Layton had forced C-30 to a special committee.) Conservative insiders con- fided that the Harper inner circle figured that Layton would want a reward for helping them save the Bill. They won- dered what he would demand in return for helping get the Bill to committee. Instead, Layton simply asked to see the Bill move to a special legislative com- mittee, unfettered by approval in princi- ple at second reading. In the London North Centre campaign, I would refer to Layton’s rescue of the Bill as an early Christmas present to Mr. Harper.
Just before the Christmas holidays, Stephen Harper in a CBC radio inter- view referred to the ”œso-called green- house gases.” There was no sense that he had popped the DVD of An Inconvenient Truth (an actual present from Jack Layton of many months earli- er) into the player for a review of the sci- ence. In fact, the Hill Times reported that the Prime Minister had not had any sci- entific briefing on climate change.
Nevertheless, by early January, the Prime Minister emerged with a New Year’s resolution to ”œdo more” in deal- ing with the climate issue, which he said he realized was serious. To signal his new resolve, on January 4, he shuf- fled his cabinet and placed one of his favourite cabinet members into the environment portfolio. He chose Ottawa area MP John Baird, a career Conservative politician, with experi- ence in the cabinets of Ontario pre- miers Mike Harris and Ernie Eves, removing Rona Ambrose and leaving her as the scapegoat.
The hearings on C-30 began after the Christmas recess before a new all- party committee. Rather than the Standing Committee on the Environment, which normally would have had carriage of the Act, the new C- 30 committee was chaired by Conservative Laurie Hahn and was both all-party and all-male. Its hearings were the most fractious, partisan, unpleasant and unruly I have ever witnessed. (Speaking of ”œwitnessed,” my efforts to appear as a witness were rejected.)
The committee heard from a vast number of witnesses. All of those with environmental law background con- firmed that the new law offered no new required tools to achieve the govern- ment’s stated goals. Even the Forest Products Association of Canada urged the committee to get on with meeting Kyoto targets and endorsed the environmental coalition proposals. Many witnesses expressed the view that meeting Kyoto targets purely through domestic action was no longer possible. Some urged a new focus on technology. Many urged that the most effective step would be a carbon tax. Others focused solely on the weakness of th Bill in dealing with air pollution.
The most pugnacious witness was the new environment minister, John Baird. He appeared with a single slide on his PowerPoint. It was a graph of increas- ing GHG emissions with a solid line to 2007 and then a dotted line thereafter, one that continued to climb into the future. No one asked him why his gov- ernment’s intentions and new plans would allow emissions to rise. He had a fancy laser pointer that kept going to the place when Stéphane Dion was elected or when Stéphane Dion became environ- ment minister. His heated exchanges with the equally pugnacious David McGuinty brought parliamentary com- mittee hearings to a new low. As Aaron Freeman commented in a Hill Times arti- cle, the C-30 committee clearly needed ”œadult supervision.”
The clause-by-clause review of amendments may have been the most childish and nasty part of the hear- ings. Last-minute Liberal amendments were met with frustration and feigned disbelief from the NDP and the Conservatives. Watching the process, the only party that always seemed to keep its eye on the ball and climate as an issue was, perhaps surprisingly, the Bloc and its exceptional environment critic, Bernard Bigras, although indi- vidual MPs did shine brighter than their caucuses " gold stars to NDP MP Dennis Bevington and Liberals John Godfrey and Francis Scarpelligia.
By the end, the Bill was unrecog- nizable. The bad sections had been uprooted. The constitutional vulnerabilities had been fixed. The new Liberal carbon budget had been added. New sections calling for meeting Kyoto between 2008 and 2012, with mid-term targets at 2020, 2030 and 2050, were in place, and they were the right targets.
Nathan Cullen, the NDP environment critic, brought in champagne and cake. Conservatives refused either. What was there to celebrate? Brian Jean, Conservative MP from Fort McMurray, whose prosecutor skills were used to cross-examine witnesses until they said the opposite of what they had intended, said that he didn’t drink champagne at a funeral.
Was the Bill dead?
The saga of Bill C-30 is a long way from resolved. At this writing, it has not been brought to the House of Commons. It has had a complete over- haul with no sign the government will accept what has been done to its Bill at first reading. The only intriguing hint was an interview with John Baird on CBC Radio’s The House. Strangely, in describing the C-30 process, Minister Baird went out of his way to say sever- al times how helpful the NDP mem- bers had been. This was certainly not apparent in the hearings. The eviscera- tion of the Bill appeared equally con- certed from all three opposition par- ties. The only difference was that the NDP generally could not resist asking witnesses, including John Baird, if they did not agree that the Liberals had been really dreadful. Conservatives seemed almost embarrassed by the silliness of the question and I won- dered often how Nathan Cullen could bring himself to keep asking it.
Here are the options and where the Baird hints lead me.
One option is, of course, that the Harper government will allow the Bill to die. It will blame the opposition parties for stopping action to clean the air and reduce GHGs. It can campaign on how it needs a majority to stop these obstruc- tionist opposition parties from blocking ”œaction.” This strategy might work as long as the public can be kept from under- standing how dangerous the Bill actually was.
Another option would be to call the Bill a confi- dence vote and bring back the original Bill, or one so little changed that it would fail, trigger- ing an election. At this point blaming of the opposition parties for thwarting action would still be the likely scenario.
The third, and I will now lay bets that it is the most likely, is that the Bill will come back to the House, rewritten so that only the NDP can support it. Both Harper and Layton could take credit for progress, praising their ability to work with each other. After all, this is precisely how Baird, in his previous role as president of Treasury Board, got the Accountability Act through the House. The likely scenario: the new Bill would strip out Liberal amendments for the carbon budget, take out the 2012 Kyoto target but keep an appropriate target for 2050, put the air pollution and GHG sections back where they belong in part 5, and move from intensity targets in the short term (the only kind yet accepted by the Harper government) to hard caps in the future.
Bottom line: the bill without Kyoto is not acceptable. But will a Harper-Layton partnership obscure this to the voter?
Climate is very likely to remain an election issue, whenever that may come.