Greenpeace heads to court to save cap and trade

An environmental advocacy group is turning to the courts in an effort to halt the Ontario government’s plan to scrap the province’s cap-and-trade system, alleging the lack of consultation on the issue violated rights entrenched in law.

A legal challenge filed on behalf of Greenpeace Canada on Tuesday alleges Premier Doug Ford and his Progressive Conservative government failed to consult the public on a regulation ending Ontario’s cap-and-trade program and a proposed bill that would alter the province’s legislative regime for tackling climate change.

The group said the Environmental Bill of Rights, legislation unique to Ontario, states that the province’s residents have the right to a 30-day consultation process on environmentally significant regulations and legislation.

In its application for judicial review, the group alleged the province’s decision to bypass mandatory notice and consultation was “unreasonable and incorrect, procedurally unfair, and therefore unlawful.”

“Basically, any policy, regulation or legislation that affects the environment has to be go through the EBR consultation process, and they ’ve tried to skip that saying the election campaign constituted equivalent consultation,” Keith Stewart, a senior energy strategist with Greenpeace Canada, said in an email.

Greenpeace said it has obtained an expedited hearing, tentatively scheduled for Sept. 21, so that the case can be heard before the government’s legislation on tackling climate change passes. The group said it is also seeking to have the regulation that scrapped cap and trade revoked.

The province did not immediately respond to a request for comment on the legal action, which contains unproven allegations. The Ford government is facing other legal challenges on controversial moves such as the scrapping of a modernized sex-ed curriculum.

It has also been engaged in a legal battle over the size of Toronto’s city council. Legislation to slash Toronto’s council nearly in half in the middle of the municipal election campaign was struck down by the courts this week after a judge found it violated the right to freedom of expression for both candidates and voters. But the premier has said he will invoke a rarely used charter provision known as the notwithstanding clause to push ahead with his plan, and is expected to recall the legislature Wednesday to do so. Stewart said the notwithstanding clause could not be used in Greenpeace’s legal challenge because the case relies on procedural rights under the Environmental Bill of Rights, not charter rights. Ontario’s cap-and-trade system aimed to lower greenhouse gas emissions by putting caps on the amount of pollution companies in certain industries could emit. If companies exceeded those limits they had to buy allowances at quarterly auctions or from other companies that came in under their limits.

The province made close to $3 billion in a series of cap-and-trade auctions since the system was introduced by the Liberals last year. Ford vowed to eliminate the system and fight Ottawa’s carbon pricing plan during the spring election campaign.

His government has since introduced legislation to scrap cap and trade and cancel programs financed through its revenues, which include rebates for energyefficient renovations, transit projects and a fund for school repairs. Ontario also announced this summer it was launching a legal battle against Ottawa over its carbon tax plan, saying the provincial government received a clear mandate during the spring election to fight the federal tax for provinces that don’t have their own carbon pricing system.

The federal carbon tax is scheduled to kick in on Jan. 1.