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Hill Dispatches: Surprise! Canada's Kyoto Implementation Act is still the law!

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Scott Vaughan, the Commissioner of the Environment and Sustainable Development, has a matter-of-fact, self-effacing manner. He doesn't seek to attract attention to himself. But he's getting a lot of attention, right now, for warning us all about those many large vehicles on our roads that carry dangerous substances.

Don't assume those trucks were adequately inspected, Vaughan says, because we have no way of knowing they were. Even when Transport Canada's inspectors tell companies they are not complying with the safety rules, in the vast majority of cases there is no follow-up to make sure the violators take corrective action.

Canadian lives are at risk

The Commissioner issued his December 2011 report to Parliament yesterday. During a news conference in Ottawa he shared one story about a company that loaded sulfuric acid onto a truck that was not designed to carry it. In Vaughn's words, "The truck literally dissolved."

That is just one of the two "incidents" per week involving dangerous substances that take place annually in Canada.

And the report was equally withering about Canada's aging pipeline network -- some of it going back 60 years.

The National Energy Board (NEB) is mandated to inspect pipelines and Vaughn says, bluntly, it is not up to the task. He points out that there are only 68 inspectors for over 75,000 kilometres of pipeline.

Do the math, the Commissioner advises.

"Each inspector is responsible for over 1,000 kilometres of pipeline, and those pipelines often travel through difficult and environmentally sensitive terrain," the Commissioner says. "The NEB cannot properly inspect all of that. It is overstretched."

Failure to enforce Canada's key environmental legislation

Although it has attracted less attention, the government's lax and almost incompetent enforcement of what the Commissioner calls "Canada's principal federal environmental statute" is even more worrisome.

The statute in question is the Canadian Environmental Protection Act of 1999 (CEPA 1999). That Act governs everything from toxic substances to cross-border air and water pollution to waste disposal. Environment Canada has an Enforcement Directorate that is supposed to see to it that companies and individuals comply with the Act's provisions.

This enforcement is necessary because, as Environment Canada itself states, "laws alone are not enough to guarantee a cleaner, better environment. These laws need to be enforced."

But when it comes to on-the-ground enforcement, the Commissioner gives the government a failing grade.

"The enforcement program has not been well managed to adequately enforce compliance with CEPA 1999," the report says. "The Enforcement Directorate lacks key information on regulated individuals, companies and government agencies to know whether it is targeting ... the highest risk violators."

And it continues: " ... some regulations are excluded from being priorities due to lack of adequate training for enforcement officers or lack of laboratory testing... "

Finally, the report goes on to point out that the Department of the Environment does not measure the results of enforcement activities and actions.

Where are the additional inspectors?

In the Commons, Environment Minister Peter Kent retorted that the government had hired additional inspectors, starting in 2007. The Commissioner's report does acknowledge that, in 2007, there was money to hire 68 enforcement officers and that these additional resources were supposed to lead to an increase in the number of inspections.

But here's the rub.

The number of inspections has not gone up. In fact, that number was lower in 2010-11 than it was in 2006-07!

And Vaughan pointedly states that the Environment Department "was unable to tell us how many of the 40 full-time equivalent positions added since 2007 are environmental protection officers."

As the Commissioner summed it up, in his news conference, enforcement of Canada's key environmental law is plagued by: "lack of training, lack of labs, lack of risk evaluations, lack of follow-up, and" -- perhaps most damning -- "deficiencies of leadership."

The bad news for the environment just keeps coming

In commenting on the report, the NDP's Environment Critic Megan Leslie said she "would like to go 24 hours" where she "was not before the media on a bad news story for the environment."

This report comes, after all, just one day after Minister Kent officially announced Canada's withdrawal from Kyoto -- a move, by the way, that creates a serious problem for the Environment Commissioner; (more on that below).

What really worries Leslie, more than the grave management deficiencies the Commissioner detected, is the fact that there will likely be significant cuts to the Environment Department in the coming year.

"The government will be eliminating thousands of jobs," she says. "What will those cuts be based upon? It is particularly worrisome when you consider that some programs are managed by a single person. What happens when that person gets cut?"

To the NDP's critic it all forms a troubling pattern: muzzling scientists, failing to provide proper and well-managed resources for enforcement, and, then, dropping out of Kyoto, without a clear commitment as to what sort of greenhouse gas emissions rules will replace it.

The Kyoto rules are still the law of the land!

And Commissioner Scott Vaughan put the cat among the pigeons when he pointed out that his duties are not necessarily changed by Kent's Kyoto announcement.

"The Kyoto Protocol Implementation Act of 2007 is still the law of the land," Vaughn emphasized, even if Canada says it will not comply with the requirements of the treaty.

That 2007 Act requires the Commissioner to report on the government's effectiveness in achieving its targets. And, in fact, the Commissioner's staff is currently hard at work on the next report, focused precisely on how well Canada is meeting its Kyoto commitment, due in the spring of 2012.

But will that report ever see the light of day?

Vaughan quite frankly admits he does not know exactly what his legal responsibilities are, after Kent's Kyoto withdrawal announcement. Lawyers in the Commissioner's office are looking into it, he says.

The Kyoto Implementation Act of 2007 was a private member's bill, proposed by Liberal Pablo Rodriguez from Montreal. The Conservatives opposed it, but in those days of minority government it passed nonetheless.

Harper and his colleagues had mostly been climate-change deniers up to that point. They turned on a dime when they discovered that most Canadians -- Rex Murphy notwithstanding -- did not agree with them. Their new stance was not exactly to embrace climate science, but to focus on the fact that the Liberals did not get the job done.

And although the Conservatives did not support the Kyoto Act, once it was passed the government and various government bodies such as the National Roundtable on the Environment and the Economy accepted it as law and acted accordingly.

You can find reference to the Act on the Environment Canada section of the current Government of Canada website. Here is the link:

http://www.climatechange.gc.ca/default.asp?lang=En&n=7F9841C4-1

The Act is, in essence, a commitment by the government to take serious measures of various kinds to reduce Canada's greenhouse gas emissions, and to report on the net effect of these measures.

Did the Conservatives ever intend to do anything about greenhouse gas emissions?

It is now clear that Harper had his hand behind his back with his fingers crossed when he signaled that his government would comply with the 2007 Act.

He and his party never really meant to do anything about meeting the Kyoto commitments. They were just engaging in a bit of political manoeuvring and waiting for the day when they had a majority and could openly pursue their real agenda.

But the law is the law and that 2007 Kyoto Protocol Implementation Act is still in force.

That is what creates such a conundrum for a straight arrow officer of Parliament such as Scott Vaughan. He is legally bound by the Act to report on Canada's greenhouse gas emission reductions in 2012. Until the law changes he has no other legal option.

What will the government do now?

Will it try to instruct the Commissioner to cease and desist, regardless of his legal obligation?

Will it bring in new, post-Kyoto greenhouse gas legislation?

Or, will the government simply chose to ignore a law that is still on the books?

In the case of the Wheat Board, the Conservatives point out that they are changing the law and so are not bound by the consultation provisions of the existing law that was passed by a previous government.

What will they say about the 2007 Kyoto law, which passed - on their watch - just a little more than four years ago?

 

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