PDF version: CCS is now a CDM Project Activity  

Decision commented on: Decision -/CMP.7 Modalities and procedures for carbon dioxide capture and storage in geological formations as clean development mechanism project activities
- adopted in December 2011.

The 17th United Nations Climate Change Conference and the seventh meeting of the parties to the Kyoto Protocol (CMP) took place in Durban in November-December 2011 and brought hope again to the international community fighting climate change. The negotiations were reasonably successful and blended together the implementation of the Convention and the Kyoto Protocol, the Bali Action Plan, and the Cancun Agreements, concluding with a decision adopted by Parties that a universal legal agreement on climate change is to be adopted as soon as possible, but no later than 2015.

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PDF version: Carbon capture and storage in Alberta: draft offset Protocol

Document and regulations commented on: Government of Alberta, Draft Quantification Protocol for the Capture of CO2 and Storage in Deep Saline Aquifers, December 2011 and Specified Gas Emitters Amendment Regulation, Alta Reg 139/2007, Alta Reg 127/2011 at pp. 448 - 451.

While there has been some suggestion that the post-Stelmach provincial government is less enthusiastic than its predecessor about carbon capture and storage (CCS) as a silver bullet to deliver on provincial plans to reduce greenhouse gas emissions, the province will go ahead with at least three of the four short-listed CCS projects that are to receive provincial government financial support: the Alberta Carbon Trunkline Project, Shell’s Quest Project and the Swan Hills Synfuels project. The one outstanding project is TransAlta’s (TAU) Project Pioneer. The province has yet to finalize a deal with TAU (and may never do so) but I gather that this has more to do with problems with the technology that TAU\Alstom has been proposing to use than any provincial cold feet.

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PDF version: Why Canada should not withdraw from the Kyoto Protocol 

Rumour\decision commented on: Canada will withdraw from the Kyoto Protocol

Rumours abound that Canada will withdraw from the Kyoto Protocol later this month. While Canada’s Minister of the Environment, Peter Kent, will not confirm these rumours (Montreal Gazette, November 29, 2011) there is reason for thinking that withdrawal is being actively considered if not already decided on (see “Canada to pull out of Kyoto Protocol next month“?

This post discusses four questions. First, what is the law pertaining to withdrawal from an international environmental agreement (MEA)? Second, why is withdrawal being considered and what other options are available? Third, what might be some of the ramifications of a Canadian withdrawal? And fourth, what is the legal nature of the current commitment: whom does it bind?

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PDF version: Public Interest Standing and a Statutory Right of Appeal

Case Considered: Pembina Institute for Appropriate Development v Alberta (Utilities Commission), 2011 ABCA 302

The Pembina Institute for Appropriate Development (”Pembina”) recently sought leave of the Alberta Court of Appeal to appeal the June 30, 2011 interim decision of the Alberta Utilities Commission (”AUC”) to approve the construction of a coal-fired power generation facility by Maxim Power Corp. (”Maxim”) in Alberta. In Pembina Institute for Appropriate Development v Alberta (Utilities Commission), 2011 ABCA 302, Madam Justice Patricia Rowbotham denies the Pembina application for leave to appeal. However in her reasons for decision, Justice Rowbotham adds to the Alberta jurisprudence on public interest standing. I will first describe the parameters of the leave application before discussing the standing matter.

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PDF version: Bill 16, 2011: Alberta Paves the Way for Cleaner Coal with In Situ Coal Gasification

Legislation commented on: Bill 16 - Energy Statutes Amendment Act, 2011

On 13 May 2011, the Legislative Assembly of Alberta passed the Energy Statutes Amendment Act (”Bill 16, 2011″). Bill 16, 2011 amends the following acts: the Alberta Utilities Commission Act, RSA 2007, c A-37.2, the Coal Conservation Act (CCA), RSA 2000, c C-17, the Electric Utilities Act, RSA 2003, c E-5.1, the Gas Utilities Act, RSA 2000, c G-5, the Oil and Gas Conservation Act (OGCA), RSA 2000, c O-6, the Oil Sands Conservation Act (OSCA), RSA 2000, c O-7, and the Pipeline Act (PA), RSA, c P-15. The amendments entered into force on 13 May 2011.

Bill 16, 2011 implements two central amendments to the regulatory regime of the above mentioned energy laws. The first amendment removes the Industrial Development Permit (IDP) legislation (see ERCB Bulletin 2010-42). In short, section 51 of the CCA, section 111 of the OGCA and section 27 of the OSCA cancel existing IDPs. The general repeal of these provisions makes it unnecessary to apply for an IDP in the future. See previous post by Nigel Bankes here. The second amendment clarifies the ERCB’s authority to regulate in situ coal development and sets out the requirements for in situ coal projects (see ERCB Bulletin 2009-36).

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PDF version: CCS and CDM: the eligibility of carbon capture and storage projects under the clean development mechanism of the Kyoto Protocol - the Cancun Meeting of the Conference of the Parties

Decision commented on: UNFCCC, Kyoto Protocol, CoP\MoP Decision on “Carbon dioxide capture and storage in geological formations as clean development mechanism project activities”

The 16th Meeting of the Conference of the Parties to the United Nations Convention on Climate Change (UNFCCC), and the 7th Meeting of the Parties to the Kyoto Protocol (KP) (CoP\MoP) concluded last week in Cancun. In the assessment of most observers this was a successful meeting but perhaps only because expectations were modest and anything seemed liked progress after the Copenhagen debacle of last year. But there is still much that remains to be done before countries can agree on a successor to the first commitment period of the KP which expires in 2012. Without such agreement the KP will simply die. Some, especially Europe, but also developing countries, want to see a second commitment period. But others, like Canada, point to the lack of inclusiveness of the KP (to say nothing of our own non-compliance which would result in a penalty on Canada during any second commitment period) and want to see an alternative to the KP that imposes emissions reduction obligations not only on the United States (not a party to the KP) but also on the so-called BRIC countries (Brazil, India, China) as well as other developing countries.

The Meeting did make progress on number of larger matters including REDD+ (reduced emissions from deforestation and forest degradation) and on the narrower issue of the eligibility of carbon capture and storage (CCS) projects under the clean development mechanism (CDM) of the KP. The purpose of this note is to provide an update on that debate.

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PDF version: Mutatis Mutandis: The ERCB speaks (in Latin) on the subject of carbon capture and storage

Considered: ERCB Bulletin 2010 - 22, ERCB Processes Related to Carbon Capture and Storage (CCS) Projects, June 29, 2010

After a long period of cogitation the chief energy regulator in the province has finally provided a statement of how it proposes to approach the regulation of carbon capture and storage (CCS) projects. The message is simple: apply the current rules, so far as they are applicable to CCS (the basic idea of mutatis mutandis). The issue is important: several task forces and many commentators have emphasised that the proponents of CCS projects need regulatory certainty if they are to plan and implement commercial scale CCS operations. Whether this ERCB Bulletin provides sufficient guidance to industry and sufficient comfort to the citizens of the province that CCS projects will be handled safely remains to be seen.

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PDF version:   Climate Change Legislation – Waiting for Obama; or Just Waiting

Shaun Fluker’s environmental law non-event of the past decade  focused on case law (or lack thereof). My review of climate change legislation continues Shaun’s theme. We waited for federal legislation. Then we waited for the Obama climate change legislation. Now with the President’s Senate majority gone, how long can Canada continue to wait?

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Document considered: Meeting of the parties to the 1973 Agreement on the Conservation of Polar Bears, Tromsø, Norway, 17 - 19 March 2009 Outcome of Meeting

PDF Version: The Tromsø meeting of the parties to the 1973 Agreement on the Conservation of Polar Bears: a comment on three aspects of the meeting report

A few weeks ago (March 17 - 19, 2009) the parties to the 1973 Polar Bear Agreement met in Tromsø to consider the further implementation of the Agreement. This is a significant breakthrough. Apart from a meeting of the parties back in 1981 when the Parties decided to continue the Agreement in force as contemplated by Article X(6) of the Agreement and in informal meeting of the range states in 2007, the parties have never considered the further implementation of this Agreement.

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Considered: Accelerating Carbon Capture and Storage in Alberta, dated September 30, 2008, released October 22, 2008

PDF Version: Comments on the Interim Report of the Alberta Carbon Capture and Storage Development Council, Accelerating Carbon Capture and Storage in Alberta

In these comments we focus on three aspects of the interim report: (1) the treatment of the ownership of pore space, (2) the design of a provincial tenure system for geological sequestration, and (3) the treatment of liability issues. In each case we provide our understanding of what it is that the Council proposes and then we provide our comments. While we welcome the report and agree with the need to accelerate the adoption of Carbon Capture and Storage (CCS) in Alberta, we think that these sections of the report require further clarification before the Council issues its final report. In particular, we think that the report needs to do a much better job of, identifying the problems and providing reasoned arguments for the solutions that it advances.

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