Federal Court Leaves Kyoto Compliance To Parliament

On 20 October 2008 the Federal Court dismissed three

applications for judicial review that had been brought by Friends

of the Earth against the federal government for non-compliance with

the Kyoto Protocol Implementation Act. The Canadian decision is

important because it provides guidance on the circumstances in

which a court will find breaches of climate change regulations.

FACTS

On 22 June 2007 the Kyoto Protocol Implementation Act (the

"Act"), introduced by Liberal MP Pablo Rodriguez, became

law. It passed in both the House of Commons and the Senate without

the support of the Government. Section 5(1) of the Act calls for

the Minister of the Environment to prepare, on a fixed timeline, a

Climate Change Plan that includes a description of measures to be

taken to ensure Canada meets its Kyoto commitments. Section 7 calls

for the Governor-in-Council to make, amend or repeal regulations to

ensure that Canada meets its Kyoto commitments. Section 8 calls for

such regulations to be published in the Canada Gazette for

consultation purposes. Section 9 calls for the Minister to publish

the greenhouse gas reductions anticipated from such

regulations.

The Minister published a Climate Change Plan on 21 August 2007.

The Climate Change Plan "makes it very clear that the

Government of Canada has no present intention to meet its Kyoto

Protocol commitments."1 The Climate Change Plan

states that for Canada to meet its Kyoto commitments would cause a

6.5% reduction in GDP and that, by comparison, the Great Depression

involved a reduction in GDP of 4.9%.2 As required by the

legislation, the National Roundtable on the Environment and the

Economy analyzed the Plan and concluded that Canada's emissions

would exceed those permitted by Kyoto by 34%.3 Further,

the Governor-in-Council did not proceed with any regulatory action

contemplated by Sections 7 through 9 of the Act.

ISSUES

The Court considered the following three issues:

Whether Friends of the Earth had standing;

Whether Section 5 of the Act imposes a justiciable duty upon

the Minister to prepare and table a Climate Change Plan that is

Kyoto-compliant; and

Whether Sections 7 through 9 impose justiciable duties upon the

Governor-in-Council to make, amend or repeal environmental

regulations with the timelines stated therein.4

ANALYSIS

1. Whether Friends of the Earth had standing

The Court held that Friends of the Earth met the requirements

for public interest standing.

2. Whether Section 5 imposes a...