Category Archives: Climate Change

In the Growing Wave of Climate Litigation, Could the Automobile Industry be Next?

By: Martin Olszynski

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Litigation Commented On: County of San Mateo v Chevron Corp., Docket number(s): 3:17-cv-04929-MEJ; County of Marin v Chevron Corp., Docket number(s): 3:17-cv-04935; City of Imperial Beach v Chevron Corp., Docket number(s): 4:17-cv-04934; People of State of California v BP p.l.c., No CGC-17-561370 (Cal Super Ct, filed Sept 19, 2017); People of State of California v BP p.l.c., No RG17875889 (Cal Super Ct, filed Sept 19, 2017)

Over the course of the summer, five California municipalities (San Mateo County, Marin County, and the City of Imperial Beach as a first group, San Francisco and Oakland as a second) filed statements of claim against many of the world’s largest oil and gas companies – including Exxon Mobil, Chevron, BP, Shell, and Canada’s own Encana – claiming that these companies should be liable for the current and future costs incurred by these municipalities as a result of climate change, and especially those associated with rising sea levels. In this post, I consider whether the world’s top automobile manufacturers could be next in the defendant line. I’ve been thinking about automobile manufacturers’ potential liability for a while now, having first considered the issue in a recent article co-authored with Professors Sharon Mascher and Meinhard Doelle (which we blogged about here). This post’s focus on car manufacturers has been motivated by two separate but related developments in particular: (i) the automobile manufacturers’ December 2016 letter to Scott Pruitt, the then-new head of the United States’ Environmental Protection Agency (EPA), requesting that he reconsider the “strict” fuel efficiency standards for cars and light trucks established by the Obama administration; and (ii) the industry’s response to a potential zero emission vehicle (ZEV) mandate currently being considered here in Canada, and especially the industry’s suggestion that it “can’t control consumer tastes”. Continue reading →

Recommendations on Implementing the Oil Sands Emission Limit

By: Nigel Bankes

PDF Version: Recommendations on Implementing the Oil Sands Emission Limit

Report Commented On: Oil Sands Advisory Group (OSAG), Recommendations on Implementation of the Oil Sands Emissions Limit Established by the Alberta Climate Leadership Plan, dated May 8, 2017, released to the public June 16, 2017 with related news release

One of the planks of Alberta’s Climate Leadership Plan (CLP) is the adoption of a 100 Megatonne (Mt) cap on greenhouse gas emissions for the oil sands sector. The government introduced and passed the Oil Sands Emissions Limit Act, SA 2016 c. O-7.5 (OSELA) to give effect to this commitment. I commented on the Act as it was introduced as Bill 25 here. While OSELA provides the necessary legal authorization for the cap, many of the details still need to be worked out and then implemented through the regulation-making power in s 3 of OSELA (and see in particular s 3(h)). Recognizing the need for advice on this set of issues Minister Phillips established the Oil Sands Advisory Group (OSAG) in July 2016. The terms of reference are available here along with two mandate letters from Premier Notley here and here. Continue reading →

Do Comparisons Between Tobacco and Climate Change Liability Withstand Scrutiny?

By: Martin Olszynski, Sharon Mascher, and Meinhard Doelle

PDF Version: Do Comparisons Between Tobacco and Climate Change Liability Withstand Scrutiny?

Research Commented On: “From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability” (2017) Geo Envtl L Rev (forthcoming)

A few years ago, the Canadian Press reported that environmental groups were “taking inspiration from the legal fight against tobacco to fire warning shots at major energy companies over their alleged role in funding climate change denial and blocking climate-friendly legislation.” The next day, an editorial in the Calgary Herald suggested that “the comparison doesn’t stand up to even cursory examination. One is a product that is always hazardous to human health when consumed, the other is a staple of the modern world.” Setting aside for a moment the fact that tobacco wasn’t always understood as hazardous to human health (back in the 1950s, almost one in every two Americans smoked, and cigarettes were ubiquitous in homes, places of work, universities, restaurants and bars), the past few years have seen an increasing number of comparisons made between the fossil-fuel industry’s potential liability for climate change and “Big Tobacco’s” liability for tobacco-related disease. Very few of these comparisons, however, have considered the legally relevant similarities and differences between these two contexts in detail. In our most recent paper, recently accepted for publication in the Georgetown Environmental Law Review, we set out to do just that.

Continue reading →

The Efficiency Plank in Alberta’s Climate Leadership Plan

By: Nigel Bankes

PDF Version: The Efficiency Plank in Alberta’s Climate Leadership Plan

Report Commented On: Getting it Right: A More Energy Efficient Alberta, Final Report of the Alberta Energy Efficiency Advisory Panel, released 23 January 2017 and related press release

As reported in previous posts, Alberta’s Climate Leadership Plan (CLP) released in November 2015 following receipt of the Leach Report has four key planks: (1) phasing out emissions from coal-generated electricity and developing more renewable energy, (2) implementing a new carbon price on greenhouse gas emissions, (3) a legislated oil sands emission limit, and (4) employing a new methane emission reduction plan.

The government introduced legislation to implement an economy-wide carbon price in June 2016 (the Climate Leadership Implementation Act) with the results of that in the form of the carbon levy coming into force on January 1 of this year (2017). The fall session of the legislature (2016) saw the introduction and passage of Bill 25, The Oil Sands Emission Limit Act to implement the third objective, a legislated oil sands emission limit (I commented on Bill 25 here) and followed this up with Bill 27, the Renewable Electricity Act to implement the second half of the first plank – developing more renewable energy. I commented on Bill 27 here. Then there were subsequent developments with respect to transforming Alberta’s “energy only” market which I commented on here. This last post also commented on the first half of the first plank of the CLP, i.e. the agreement between the province and the owners on the phase-out of coal generating facilities and the level of compensation payable.

As part of the plan to replace coal generation the province has also been looking at energy efficiency policies and micro or distributed generation. Although energy efficiency measures do not result in more generation they do suppress load and avoid (or at least postpone) the need to build or run new generation. While energy efficiency has a lower public profile than new generation, most commentators suggest that energy efficiency and demand side management policies are usually among the most cost effective measures for meeting load and for reducing greenhouse gas emissions – especially where the current energy mix, as in Alberta, is carbon intensive. Continue reading →

Finally, a Plan (albeit drip-by-drip) to Phase Out Coal and Keep the Lights On

By: Nigel Bankes

PDF Version: Finally, a Plan (albeit drip-by-drip) to Phase Out Coal and Keep the Lights On

Documents and press releases commented on:
(1) Press Release, Electricity Price Protection, November 22, 2016;
(2) AESO, Alberta’s Wholesale Electricity Market Transmission Recommendation, dated October 3, 2016, released November 23, 2106, accepted by the Province;
(3) Press Release: Alberta Announces Coal Transition Action, November 24, 2016 and related letter from Terry Boston to the Premier of Alberta (dated September 30, 2016, released November 24, 2016).

The week of November 21, 2016 will go down as a significant week in the evolution of Alberta’s electricity market. Having introduced Bill 27, the Renewable Electricity Act on November 3, 2016 (see post here) the provincial government followed that up this last week with a number of significant initiatives.

First there was the announcement on Tuesday November 22 that the province was going to cap electricity prices in the retail market. Second, on Wednesday November 23, the province announced that it planned to accept the recommendations of the Alberta Electric System Operator (AESO) to introduce a capacity market in Alberta to supplement the existing energy only market and then, third, on Thursday November 24 there was the announcement that the province had reached a settlement with the owners of the six coal generating facilities with useful lives beyond 2030 who will be required to cease burning coal at those facilities by then. And later that same day, the province announced tentative settlements with most of the parties affected by the province’s efforts to question the ability of the buyers under power purchase arrangements (PPAs) to turn responsibility for those arrangements over to the Balancing Pool. “Black” Friday was almost quiet, except for the morning’s announcement that, as of January 1, 2017, the province would “prohibit unsolicited door-to-door selling of energy products to protect people from misleading high-pressure sales tactics.”

This is a very positive package of measures. It offers comfort to consumers that they will be protected at least in the short term from excessive price volatility on the upside. It offers a realistic strategy for obtaining the investment that the province needs to build combined cycle gas generation to replace the coal fleet and thus addresses potentially very serious energy security concerns. It offers comfort to coal generators that they are being treated fairly in relation to stranded assets and gives them both the wherewithal and reason to invest in the construction of new generation. And finally it splits the difference between the province and the PPA buyers in their dispute on the terms of the PPAs. This was an important package to put together. Without it the transition from coal would be more risky (in energy security terms) and likely more expensive (increased cost of capital). While a significant change in market structure such as this is not without its own risks (a perception of continuing change will deter investors) most agreed that an energy only market was not going to deliver on the energy security front. Continue reading →