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May 2021

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MECP Proposes Amendments to the Emissions Performance Standards

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The Ontario Ministry of the Environment, Conservation and Parks (MECP) has announced proposed amendments to the Emissions Performance Standards program (EPS) under the Environmental Protection Act (read our earlier bulletin on the EPS here). The proposed amendments announced yesterday do not include changes to the EPS to allow for the use of carbon offsets for the purposes of compliance. This bulletin briefly summarizes the proposed amendments, which are in three key areas: Supporting a partial year coverage of emissions. MECP is proposing the following amendments in support of partial year coverage, including calculations that facilities are to use for determining the following prorated amounts: -Verification amount (emissions); -Production parameters; -Emissions limits. In addition, these amounts will be used to determine the: -facility’s compliance obligation (equal to the amount that emissions are higher than the facility’s emissions limit), or -number of emissions performance units (EPUs) to be distributed to the facility’s account (equal to the amount that emissions are lower than the facility’s emissions limit). Treatment of new facilities. MECP is proposing to align the EPS with federal policy for the registration of new facilities. To be eligible, new facilities must: -be engaged in an industrial activity identified in Schedule 2 of the EPS regulation (which sets out various activities that are covered by the regulation); and -provide estimates that demonstrate the facility is projected to emit at least 10,000 tonnes of carbon dioxide equivalent (CO2e) or more per year in any of the three calendar years from the date of first production. Other administrative, technical and clarifying amendments. MECP is proposing the following amendments to support compliance, enforcement and administration of the EPS and support the transition from the federal Output-Based Pricing System (read our earlier bulletin on the transition announcement here), including: -clarifying rules for transferring compliance instruments; -aligning the performance standard…

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Shareholders Vote to Support Climate Action at ExxonMobil and Chevron

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Shareholders and investors at two of the largest oil companies in the U.S. have voted to support increased climate action during recent shareholder meetings.   Led by activist investors and hedge funds, shareholders at ExxonMobil’s annual shareholder meeting voted to replace at least two board members with individuals perceived to be supportive of firmer action on climate change and CO2 emissions reductions. Similarly, shareholders at Chevron voted 61% in support of a resolution to “substantially reduce” Scope 3 emissions from Chevron’s energy products, which account for over 90% of its carbon emissions. Management at both Exxon and Chevron unsuccessfully came out against the respective votes.    Hedge fund Engine No.1 was behind the vote to replace board members at Exxon with individuals more aligned with taking increased climate action. Engine No.1 was able to gain the backing of institutional investors (including BlackRock) that want firmer commitments to act on reducing emissions and taking climate change into account as part of a broader investment and carbon transition strategy.   These developments follow last month’s vote at ConocoPhillips, advanced by activist shareholder group Follow This, in favour of setting Scope 1, 2, and 3 emissions reduction targets, which 58% of shareholder supported. Please contact Lisa DeMarco at lisa@resilientllp.com should you wish to discuss the contents of this bulletin.

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Dutch Court Orders Shell to Reduce Emissions

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A Hague District Court today ordered Royal Dutch Shell (Shell) to reduce the CO2 emissions of the Shell group by net 45% in 2030, compared to 2019 levels, through the Shell group’s corporate policy. The lawsuit was brought by Milieudefensie/Friends of the Earth Netherlands on behalf of 17,000 plaintiffs and alleged that Shell has a duty of care to reduce GHG emissions in line with the Paris Agreement. The plaintiffs alleged that Shell’s current policy, which seeks to achieve carbon neutrality by 2050 and reduce emissions by 20% by 2030, is inadequate to meet the necessary emissions reductions. The decision today, supporting the plaintiffs’ position, is said to be the first example of a court requiring a company to reduce its emissions and follows Urgenda v The Netherlands, a similarly successful case brought against the Dutch government for its own insufficient GHG reduction plan. The Court found that Shell bears individual responsibility for limiting climate change and ordered that Shell, inclusive of all the company’s legal entities forming the Shell group, must reduce the aggregate annual volume of all Scope 1, 2, and 3 CO2 emissions in its entire energy portfolio that are a result of its business operations, including all “energy-carrying” consumer products, by a minimum of 45% by 2030 relative to its 2019 levels. The Court determined that such reductions must be achieved through Shell’s own corporate policy, to be developed and designed by Shell. In addition, the Court made clear that the reductions with respect to Shell’s own emissions are an “obligation of result”, whereas reductions as they relate to the business relations of the Shell group including end-users are a “best-effort obligation”. With respect to end-users, the Court noted that Shell may be expected to take the necessary steps to remove or prevent serious climate-related risks associated with CO2 emissions and that…

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CCLI Releases New Opinion on Legal Implications of Climate Change For Pension Plans

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The Canadian Climate Law Initiative today released a new opinion by pensions lawyer Randy Bauslaugh, titled Climate Change: Legal Implications for Canadian Pension Plan Fiduciaries and Policy-Makers (the Opinion). The Opinion makes clear that (i) pension fund fiduciaries have a duty to consider climate-related financial risks and opportunities and (ii) failing to do so may lead to personal liability for economic, reputational, or organizational loss. This bulletin briefly summarizes the key findings of the Opinion: Legal responsibilities of plan fiduciaries. Climate change poses immediate and long-term economic and portfolio risks and opportunities that result in the need to take a multi-generational oversight approach. In addition, flowing from the fiduciary’s standard of care and duty of loyalty, climate change is a primary consideration of fiduciaries in advancing the primary purpose of plan fiduciaries: providing periodic payments to individuals after retirement and until death in respect of their service as employees. The financial relevance of climate change to fiduciary investment responsibilities. The financial relevance of climate change is supported by its acceptance by the financial services sector, including bankers, accountants, insurers, investment managers, securities regulators, academics, and public sector organizations, as well as the unequivocal acceptance of the causes and impacts of climate change by all parties in the recent Supreme Court of Canada decision upholding the federal Greenhouse Gas Pollution Pricing Act (read our earlier bulletin here). Must plan fiduciaries consider implications of climate change? The Opinion notes that with the growing consensus around the materiality of climate-related risks and opportunities, failure to take climate change into account may result in a fiduciary facing:  -removal;  -court-ordered disclosure of information related to climate change-related risks;  -fines and penalties under pension standards legislation; and -personal financial responsibility for investment underperformance or loss resulting from failure to properly manage climate change risks and opportunities, including equitable compensation or exemplary damages Please contact Lisa DeMarco at lisa@resilientllp.com should…

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Taskforce on Scaling Voluntary Carbon Markets Launches Public Consultation

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The Taskforce on Scaling Voluntary Carbon Markets (the TSVCM) today released its Phase 2 Public Consultation Report (the Report). The Report provides background on TSVCM activities and current thinking in support of consultations launched today to help inform and provide stakeholder feedback for the Phase 2 Final Report, to be published in July (read our previous bulletin on the TSVCM’s Phase 1 Final Report on creating large-scale carbon credit trading markets here). The TSVCM is conducting public consultation between May 21 and June 21, 2021 on the proposed governance design and preliminary recommendation guidelines from interested parties, particularly those interested in being a Founding Sponsor, Independent Board Member, Expert Panel Member or Executive Secretariat Host for the new governance body. Interested parties are encouraged to contact Lisa DeMarco at lisa@resilientllp.com to discuss opportunities for engagement with the TSVCM. Background. The TSVCM was launched in 2020 by Mark Carney, UN Special Envoy for Climate Action and Finance and former governor of both the Bank of Canada and the Bank of England, and is chaired by Bill Winters, Group Chief Executive, Standard Chartered, and sponsored by the Institute of International Finance (IIF) through the leadership of Tim Adams, President and CEO, with Annette Nazareth, former Commissioner of the US Securities and Exchange Commission, serving as TSVCM’s Operating Lead. Objectives and focus of the TSVCM. The Report provides the objectives and focus of the TSVCM, which include increasing public awareness of the climate and co-benefits associated with voluntary carbon markets (VCM). In addition, the TSVCM focuses on: High-integrity carbon credits and robust, transparent, and liquid markets; Addressing the oversight needs for an at-scale market; Legal principles and contracts through harmonization and liquidity by streamlining standard Terms of Use and developing general trading terms; Credit level integrity with respect to Core Carbon Principles (CCPs)…

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