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DT Vollmer

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The Court of Appeal for Ontario (ONCA) today released its unanimous decision (the Decision) on an appeal of the dismissal of a youth-led constitutional challenge of Ontario’s emissions target (see our earlier bulletin here). The ONCA allowed the appeal, determining that the Ontario Superior Court (ONSC) application judge erred in characterizing the case as a positive rights case and remitted it to the ONSC for reconsideration. The case is the first in Canada to consider whether a government’s approach to climate change can violate the Canadian Charter of Rights and Freedoms (the Charter). This bulletin briefly provides key background details of the case and the main findings of the Decision.   Background. The appellants, seven Ontario youths, some of whom are Indigenous, brought an application for (i) a declaration that Ontario’s 30% reduction of greenhouse gas (GHG) emissions target (the Target) under section 3(1) of the Cap and Trade Cancellation Act, 2018 (the CTCA) – implemented through Ontario’s “A Made-in-Ontario Environmental Plan” (the Plan) – and section 16 of the CTCA, repealing Ontario’s Cap-and-Trade system, were unconstitutional as they violated their rights under sections 7 and 15 of the Charter, and (ii) an order declaring their Charter rights have been violated and requiring Ontario to set a science-based emissions reduction target and to revise the Plan in accordance with international standards. The application judge dismissed the application. While the judge found the issue of the appellants’ sections 7 and 15 Charter rights justiciable, she characterized it as a positive rights claim and concluded that any deprivation of life or security of the person under section 7 was not contrary to fundamental justice, and that section 15 did not impose a positive duty on Ontario to act against climate change.   The Decision. The following is a brief overview of the ONCA’s main findings: The application judge erred in her analysis of the case as…

The Article 6.4 Supervisory Body (the SB) this week agreed on mandatory environmental and human rights safeguards for the Article 6.4 carbon crediting mechanism (A6.4 Mechanism) established under the Paris Agreement. The SB is tasked with developing and supervising the requirements and processes needed to operationalize the A6.4 Mechanism. The safeguards will be implemented through the mandatory Sustainable Development Tool (SDT) that assesses and monitors project impacts throughout their lifespan (SDT text available here).    This bulletin briefly summarizes the SDT criteria for the environmental and social safeguards.   Environmental. The SDT will require those participating in the A6.4 Mechanism to identify, evaluate, avoid, minimize and mitigate the following environmental safeguards associated with projects: Energy. The A 6.4 activity ensures sustainable use of energy. Air, land and water. The A6.4 activity avoids releasing pollutants into the air, land, or water, including hazardous and/or non-hazardous pollutants in solid, liquid, or gaseous phases. Ecology and natural resources. The A6.4 activity avoids adverse direct, indirect and cumulative impacts on habitats and the biodiversity they support. Social. The SDT will require those participating in the A6.4 Mechanism to identify, evaluate, avoid, minimize and mitigate the following social safeguards associated with projects: Human rights. Project activities must be compliant with human rights obligations. Labour. The A6.4 activity supports employment creation and income generation in the pursuit of poverty reduction and inclusive economic growth, while activity participants of the A6.4 activity are to ensure safe and healthy working conditions. Health and safety. The A6.4 activity avoids adverse impacts on the health and safety of the community during its implementation, including those who, because of their circumstances, may be vulnerable. Gender equality. The A6.4 activity avoids potential gender-based risks and impacts by implementing effective measures to prevent, eliminate or mitigate such risks and impacts, thereby eliminating the possibility of reinforcing pre-existing inequalities…

Anita Anand, President of the Treasury Board and Minister of Transport (the Minister), yesterday announced the federal government’s commitment to purchase carbon dioxide removal (CDR) services as part of the Greening Government Strategy (the Strategy). The Minister indicated that the federal government will purchase at least $10M in CDR services by 2030 to help reach the Strategy’s goal of net-zero emissions in government operations by 2050. The CDR services will be purchased through the Low-Carbon Fuel Procurement Program (LCFPP), an eight-year, $134.9M initiative to reduce emissions from federal air and marine operations. This investment follows the Budget 2024 decision to expand the LCFPP to include the procurement of CDR services in addition to low-carbon intensity fuels. The Minister also announced the federal government’s intention to work with public and private leaders to advance the development and responsible deployment of CDR solutions in Canada.   The Minister made the announcements at Carbon Removal Canada’s “Procuring with Purpose: Canada’s Opportunity to Shape the Carbon Removal Market” report launch event. The report seeks to recommend design elements to help maximize the positive impact of CDRs in Canada. For further information or to discuss the contents of this bulletin, please contact Lisa DeMarco at lisa@resilientllp.com.

Chrystia Freeland, Deputy Prime Minister and Minister of Finance, this evening at the Principles for Responsible Investment conference in Toronto announced: A plan to advance a “Made-in-Canada” sustainable investment taxonomy (backgrounder); and Mandatory climate-related financial disclosures for large, federally-incorporated private companies. This bulletin briefly summarizes the two announcements, the implementation of which is very likely to be contingent on the outcome of the next federal election (which must take place on or before October 20, 2025). Sustainable investment taxonomy. The Government of Canada committed, in the 2023 Fall Economic Statement (see our bulletin here) and Budget 2024, to develop a sustainable finance taxonomy identifying “green” and “transition” investments. The taxonomy builds on the work of the Sustainable Finance Action Council’s (SFAC’s) Taxonomy Roadmap Report, which was released in September 2022. The taxonomy, which will be voluntary, is intended to categorize investments based on scientifically determined eligibility criteria that are consistent with the goal of reaching net-zero emissions by 2050 and limiting global temperature rise to 1.5°C above pre-industrial levels. It is also importantly intended to establish a “transition” category to identify, and increase funding for, scientifically credible pathways to rapidly decarbonize Canada’s emissions-intensive sectors. A third-party, arm’s-length organization (or organizations) will further develop and implement the taxonomy. The development of the voluntary taxonomy would first focus on the following sectors for the Canadian economy: electricity, transportation, buildings, agriculture and forestry, manufacturing, and extractives, including mineral extraction and processing, and natural gas. The government intends for a taxonomy for two to three priority sectors to be released within 12 months of the arm’s-length, third-party organization beginning its work. Mandatory climate-related financial disclosures. The government also intends to bring forward amendments to the Canada Business Corporations Act that will require large, federally incorporated private companies to make mandatory climate-related financial disclosures. The government will launch a regulatory process to determine the substance of…

The U.S. Department of Agriculture (USDA) yesterday announced that it intends to establish an Advisory Council (the Council) for the Greenhouse Gas (GHG) Technical Assistance Provider and Third-Party Verifier Program (the Program). The Council is authorized by the Growing Climate Solutions Act which directs the Secretary of Agriculture (the Secretary) to establish the Council to facilitate participation in voluntary environmental credit markets. The USDA is now seeking nominations for Council membership. This bulletin briefly summarizes key information related to the Council and sets out important dates. Purpose. The Council will support the USDA and the Program to facilitate the participation of farmers, ranchers, and private forest landowners, including beginning, socially disadvantaged, limited resource, and veteran farmers, in voluntary environmental credit markets. The Council will also support the Biden-Harris Administration’s Principles for Responsible Participation in Voluntary Carbon Markets (the Principles) (see our earlier bulletin here). Council activities: The Council will submit an initial assessment to Congress about the Program and will consult with the Secretary regarding subsequent periodic assessments. Key activities of the Council include: Periodically reviewing and recommending changes to: the list of protocols recognized for generating environmental credits; required qualifications for entities providing technical assistance; and activities for which technical assistance providers and third-party verifiers may register to provide services under the Program that prevent, reduce, or mitigate GHGs. Advising the Secretary on: current methods for quantifying and verifying greenhouse gas emissions prevention, reduction, or mitigation in voluntary environmental credit markets; ways to reduce barriers to entry and transaction costs in these markets; and strengthening markets to align with the Principles. Council membership details. Members will serve two-year terms, with the initial slate serving staggered terms of one to three years, and may serve up to four additional two-year terms. The Secretary will appoint members to the Council as follows:…