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Ford government bows to Greenpeace lawsuit, undertakes consultation on cap and trade

In Energy
Sep 12th, 2018
Premier Doug Ford

Premier Doug Ford

By Kate Harries AWARE News Network

On September 11 2018, Greenpeace Canada filed suit against the Ford government on the grounds that its cap and trade legislation is illegal because it failed to go through the consultation required under Ontario’s Environmental Bill of Rights.

Later the same day… the Ford government quietly posted a consultation notice on the Environmental Bill of Rights Registry, tacitly admitting that Greenpeace Canada is right – the legislation does require proper consultation and contrary to claims made, an election does not provide an opportunity for the needed detailing of the government’s intention and for serious public feedback.

It’s always regrettable when citizens’ groups have to take legal action to ensure that government actions comply with the law. In this instance at least, the government heeded the advice of its lawyers.

Have your say!  Link to EBR posting 013-3738 Deadline for input is October 11 2018.

Skill-testing question: Who is the Ontario minister of the environment?

Answer: Rod Phillips. Here is a September 7 statement from Phillips, arguing that the cap and trade cancellation was legal:

Statement from the Minister of Environment, Conservation and Parks

Today Minister Phillips issued the following statement in response to the notice of reference regarding the constitutionality of the Federal Greenhouse Gas Pollution Pricing Act:

“The recent election was a decisive referendum on carbon taxation. We heard the people loud and clear: Ontario cannot afford a carbon tax.

“That is why our government took immediate action to introduce the Cap and Trade Cancellation Act which, if passed, will lower the price of gasoline, and save the average family $260 a year.

“Our Government also promised to use every tool at our disposal to challenge the federal government’s authority to impose a carbon tax on the people of Ontario.

“Today marks a milestone in those efforts as Ontarians now have a clear timeline of how the case will proceed before the courts.

“Our government made a promise to the people of Ontario to provide relief, make life more affordable and improve conditions for job-creators in our province. That’s a promise we will keep every step of the way.”

September 12 2018 statement from Greenpeace Canada

Greenpeace declares partial victory for public consultation rights in cap and trade case

Charles Hatt, Ecojustice lawyer and Keith Stewart, Greenpeace Canada senior energy strategist, issued the following statement after the Ontario government decided to consult the public regarding Bill 4, Cap and Trade Cancellation Act, 2018, mere hours after groups filed lawsuit:

Charles Hatt, Ecojustice lawyer said:

“We are happy to see that the Ford government is now doing what the law requires when it comes to public consultation rights on Bill 4 – but it shouldn’t take a lawsuit to get them there. This government will save a lot of headaches and legal bills if it follows the law as a rule, rather than only when sued.

“And no one should forget that the Ford government still must answer in court for its violations of Ontarians’ rights under the Environmental Bill of Rights. We are confident the Court will make a ruling that vindicates these public rights.”

Keith Stewart, Greenpeace senior energy strategist said:

“It is important to stand up to bullies who believe themselves to be above the law. Climate denial and inaction have enormous cost for our economy and environment, which is why Ontario needs a climate plan that is consistent with the Paris climate agreement targets. Greenpeace will be urging scientists, businesses, and member of the public to take advantage of this consultation process to ensure the Government of Ontario protects its citizens and prepares our communities for a green future.”

Yesterday, Ecojustice lawyers, in partnership with the uOttawa-Ecojustice Environmental Law Clinic, filed a lawsuit on behalf of Greenpeace Canada alleging that the Ford government unlawfully failed to provide for public consultation on a regulation that ended Ontario’s cap and trade program and on Bill 4, the Cap and Trade Cancellation Act, 2018. The case also asks the Court to quash the regulation.

Hours after the groups filed the lawsuit, the Ministry of Environment, Conservation and Parks posted a notice on the Environmental Registry of Ontario providing for a 30-day public consultation period for Bill 4, Cap and Trade Cancellation Act, 2018.

… and, for the record, here is the July 25 2018 Rod Phillips statement on the introduction of the legislation:

Ontario Introduces Legislation to End Cap and Trade Carbon Tax Era in Ontario

Eliminating carbon taxes will save the average family $260 per year and help reduce gas prices by 10 cents per litre

The average Ontario family will receive $260 in annual savings thanks to the elimination of the cap-and-trade carbon tax. 

Today Minister of the Environment, Conservation and Parks Rod Phillips announced details of legislation that would, if passed, formally end the cap-and-trade carbon tax era in Ontario.

The orderly wind down of the cap-and-trade carbon tax is a key step towards fulfilling the government’s commitment to reducing gas prices by 10 cents per litre.  In addition to saving families money, the elimination of the cap-and-trade carbon tax will remove a cost burden from Ontario businesses, allowing them to grow, create jobs and compete around the world.

The government’s announced legislation will include a plan to compensate eligible participants of the program, including the development of new regulations. Participants eligible for compensation will be required to meet the following criteria:

  • Participants who were required to participate in the cap and trade program
  • Participants whose accumulated costs are currently above and beyond their assessed emissions
  • Participants who did not pass program costs down to consumers.

The proposed legislation will also include measures to help replace the cap-and-trade carbon tax with a better plan for achieving real environmental goals.

Quick Facts

  • The Province revoked the cap-and-trade carbon tax regulation and prohibited all trading of emission allowances effective July 3, 2018.
  • All programs currently funded through the cap-and-trade carbon tax have been cancelled, including the immediate wind down of the Green Ontario Fund.
  • The average Ontario household will save about $260 a year in energy and fuel costs, and indirect costs from increased prices on goods and services.


….September 11 News release from Greenpeace Canada

Environmental groups take Ontario to court for unlawfully cancelling cap and trade

Environmental groups have launched a lawsuit against the Ford government for denying the rights of Ontarians to be consulted on its wholesale revision of Ontario’s laws for combatting climate change.

Ecojustice lawyers, in partnership with the Ottawa-Ecojustice Environmental Law Clinic, have filed the case on behalf of Greenpeace Canada. The case alleges that the Ford government unlawfully failed to provide for public consultation on a regulation that ended Ontario’s cap and trade program and on Bill 4, the Cap and Trade Cancellation Act, 2018, currently before the legislature. The case also asks the Court to quash the regulation.

Every Ontarian has the right to be consulted on environmentally significant regulations and legislation under the Environmental Bill of Rights (EBR). The EBR is signature environmental legislation unique to the province of Ontario.

“The Ford government’s first action when it stepped into office was to gut a program designed to reduce greenhouse gas pollution, without offering any immediate alternative,” said Charles Hatt, Ecojustice lawyer.

“We’re suing to remind the Premier that winning an election does not give his government carte blanche to ignore the statutory rights of Ontarians to be consulted on major changes to the laws and regulations that protect them from climate change.”

During the 2018 provincial election Premier Ford campaigned on ending Ontario’s “cap and trade carbon tax” as part of his plan to reduce gas prices by 10 cents per litre. Ford’s cabinet filed Ontario Regulation 386/18 (Regulation) at their very first meeting on July 3, essentially gutting the operational elements of Ontario’s cap and trade program in one fell swoop.

The Minister of Environment, Conservation and Parks chose not to consult the public as required under the EBR, claiming instead that the 2018 Ontario election was a process that was “substantially equivalent” to the 30-day consultation process required by law.

On July 25, 2018, the Minister introduced Bill 4 in the legislature, again without having first consulted Ontarians as required by law. Bill 4 would repeal the Climate Change Mitigation and Low-carbon Economy Act, 2016, including Ontario’s legislated targets for reducing greenhouse gas pollution.

“The Progressive Conservative Party of Ontario was higher in the polls in January when their platform included a revenue-neutral carbon tax than they were on election day, so there are no grounds for their claim that the election campaign was a substitute for the legally-required public consultation,” said Keith Stewart, senior energy strategist with Greenpeace Canada. “The Ford government’s shock-and-awe approach to governing is not only an affront to democratic process, it is unlawful. That is why we are asking the court to require the Ford government to listen to the very public it claims to represent, as well as scientists and groups like ours, before gutting the province’s legislative regime for combatting climate change.”

The case is tentatively set for expedited hearing on September 21.

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