Ontario never promised to prevent a climate disaster: government lawyer

By Alan S. Hale January 16, 2024

The cover page of the PC government’s 2018 environmental plan.

Ministry of the Attorney General lawyers attempted to persuade the Ontario Court of Appeal this week not to overturn a lower court ruling by arguing the provincial government never promised to cut emissions to help keep the world’s average temperature from increasing by more than 1.5 C.

Judges also heard arguments from lawyers representing a group of young people who, backed by Ecojustice, sued the province over its greenhouse gas emissions targets, which they do not believe go far enough to prevent a climate disaster that younger generations will be forced to deal with for the rest of their lives.

This, they argue, violates young people’s rights to the security of a person and amounts to age discrimination under the Charter of Rights and Freedoms. A lower court judge ruled against the group last April, determining that while it was clear that Ontario’s climate change policy “falls severely short,” the courts do not have the capabilities required to fairly judge the government’s policy.

At Monday’s hearing, lawyers for the young people — along with several intervenors representing civil liberties groups and First Nations — argued there is a way around this problem.

They said the PC government has publicly promised to do its “fair share” to reduce greenhouse gases in line with the 2015 Paris Accord.

The appellants argued the phrase “fair share” can be used to effectively evaluate whether the government’s environmental policy truly is inadequate.

“We are seeking an order requiring Ontario to set its targets consistent with science-based targets that are consistent with its share of greenhouse gas production necessary to limit climate change to the Paris Accord standard,” said lawyer Justin Safayeni. The accord aims to prevent the world’s climate from increasing by more than 1.5 C.

‘The government is the judge’

But the government’s lawyers said what counts as Ontario’s “fair share” is up to Queen’s Park to determine.

“The government is the judge of the sufficiency or the adequacy of it,” said government attorney Zachary Green, who argued that the lower court justice was right to decide that the courts were ill-equipped to second guess the government, a question he noted is inherently subjective and could be calculated in a myriad of different ways.

Green agreed Ontario’s current emissions targets are likely inadequate to prevent the worst impacts of climate change but argued the province never promised they would be.

“[The government] is fighting climate change. It isn’t sufficient to avoid all the bad impacts of climate change — that may be the case,” he told the court.

“Neither the plan nor the targets say that Ontario’s cut to emissions is sufficient to meet Canada’s nationally determined climate goals.”

The province has already decided what it believes its “part” is when it comes to addressing climate change, Green said, and that does not have to be in line with federal targets.

“If the federal government has any concerns about whether Ontario is doing its part, they have their own compulsory scheme of legislation to reduce Ontario’s emissions to meet that target,” he said. “There is no suggestion that Ontario has the ability to stop the federal government from achieving its climate goals.”

The same goes for the Paris Accords, which Green argued only applies to Canada’s national greenhouse gas reduction targets.

Voters can have their say

If Ontarians do not like how the government is handling climate change policy, then they can vote it out of office, the lawyer said.

“When the Government of Ontario says ‘This is what we wish to achieve, these are our aspirations,’ people in Ontario are then free to say ‘I disagree with your aspirations, I don’t think you’ve gone far enough.’ They can vote for parties that share their aspirations and protest,” said Green, while insisting the government has been “transparent” about its climate policy.

Justice Lois Roberts was skeptical of that last point, noting the language of Ontario’s environmental plan “gives the impression that what Ontario is doing is adequate to meeting the Paris Accord goals.”

“When you talk about democratic values and you talk about how [the environment plan] allows people to understand the government’s goals … I read this, and I don’t get the impression it is being very frank,” she said.

The court’s decision will likely be released sometime in the next few months.