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Cap and trade court decision gives both sides something to cheer

by Mark Sabourin
EcoLog, 10/18/2019 12:54:00 PM

Even though it lost the war over cancellation of Ontario’s cap and trade program, Greenpeace Canada pressed on with one symbolic battle and, with a court ruling on October 11, 2019, emerged with a small victory.

In a two-to-one majority decision, the Divisional Court agreed that the Ontario government was wrong to cancel the cap and trade program by regulation as its first order of business without consulting with Ontarians about the plan as required by Ontario’s Environmental Bill of Rights, 1993. The government argued that the election campaign, in which the cancellation of cap and trade figured prominently, was sufficient consultation. The court disagreed.

However, the court refused to grant Greenpeace Canada the relief it sought — a declaration from the court that the province was wrong. Such a declaration would have no effect, the court said, and besides, it was barred by Bill 4, the Cap and Trade Cancellation Act, 2018, which the government passed after it cancelled the program by regulation.

The Cap and Trade Cancellation Act, 2018 was subject to consultation under the Environmental Bill of Rights, 1993 and it repealed the statute that enabled the cap and trade program. The Cap and Trade Cancellation Act, 2018 also effectively insulated the government from all legal action that might arise from its cancellation of the program, including this one.

The decision allowed both sides to declare victory. Environment, Conservation and Parks Minister Jeff Yurek welcomed the court’s decision to dismiss the application for judicial review. In a statement, Greenpeace Canada Energy Strategist Keith Stewart welcomed the precedent the decision may have set.

“This decision should effectively block governments from trying to ram environmental policy changes through immediately post-election as part of a shock-and-awe approach to governing,” Stewart said.

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