Ontario’s Cap and Trade Cancellation Act: Recommendations to the Minister of Environment, Conservation and Parks

Introduction

This article provides an overview of the limitations of the Cap and Trade Cancellation Act, 2018 (the “CTCA”) and recommendations for its implementation in 2019 and beyond. It discusses the public consultation process leading to the enacted CTCA as well as the Ministry of Environment, Conservation and Parks’ compliance with the Environmental Bill of Rights (the “EBR”). 

A. Limited EBR Consultation in the Repeal of Existing Cap and Trade Regulation and Enactment of the CTCA

In early July 2018, the Minister of Environment, Conservation and Parks (the “Minister”) repealed the central regulation of the Climate Change Mitigation and Low Carbon Economy Act, 2016 (O. Reg. 144/16 the Cap and Trade Program Regulation) without providing an opportunity for public comment on this regulatory change.  In repealing the regulation, the Minister relied on the EBR Section 30 exception, arguing that “the electoral process is substantially equivalent to the public comment process under the EBR.”  The EBR’s Section 30 exception, however, requires that "the environmentally significant aspects of a proposal for … a regulation… have already been considered in a process of public participation” that was substantially equivalent to the process required” (emphasis added).[3] Participating in a provincial election is not substantially the same as participating in an EBR public participation process[4], and the spring 2018 election was not a referendum on Ontario’s climate change laws and policies.  Further, although some of the political and financial impacts of eliminating the Cap and Trade Program may have been considered in the provincial election, it is unclear whether the environmentally significant aspects of repealing the Program were considered, as required by the EBR. Thus, in repealing the Cap and Trade Program regulation, the Minister did not provide the opportunity for public participation required by the EBR.

Through additional subsequent actions, the Minister delayed and limited the opportunity for public consultation leading up to the enactment of the CTCA.  On July 25^th, 2018, the Minister presented Bill 4, proposing the Cap and Trade Cancellation Act for a First Reading in the Ontario Legislature but did not simultaneously post the proposed legislation on the Environmental Registry.  On September 11, forty-eight days after the First Reading, the government posted Bill 4 on the Environmental Registry. Then, despite the significance of climate change[5]and the impact of the Bill to repeal the main mechanism to implement reductions in greenhouse gas emissions in Ontario (the Cap and Trade Program), the bill was only posted for the minimum 30-day comment period required by the EBR.[6]

This delayed and minimal comment period on Bill 4 is not consistent with the purposes, goals and legal provisions of the EBR which codify and legally guarantee the public’s right to participate “in the making of environmentally significant decisions by the Government of Ontario.”[7]