Counterpoint: The case against the proposed CBA resolution for “climate justice”

A "climate justice" resolution was recently proposed to the Canadian Bar Association at its Annual General Meeting. I oppose this and was invited to elaborate as to my reasons why.

I have two children and am concerned about the health of our one, and only, planet. However, and I say this respectfully, if ever a resolution was ill-timed, it is this one. Not only was it wrong to propose it before the COVID-19 outbreak; it is absolutely tone-deaf now.

What does "climate justice" mean? Ask ten lawyers this question, and you will probably get ten different answers. The proponents have expressed their lengthy definition of it below, the components of which could also be defined in a multitude of ways:

To ensure communities, individuals and governments have substantive legal and procedural rights relating to the enjoyment of a safe, clean, healthy and sustainable environment and the means to take or cause measures to be taken within their national legislative and judicial systems and, where necessary, at regional and international levels, to mitigate sources of climate change and provide for adaptation to its effects in a manner that respects human rights and Indigenous rights.

[Emphasis added.]

Indeed, the meaning and interpretation of every single word of this definition are debatable, if not controversial (I have underlined those which would be most obvious to me). Alas, since I have a word limit for this piece, I cannot delve into all these potential meanings. Nor, in my view, should the CBA.

To certain lawyers, "climate justice" may really mean "leaving all fossil fuels in the ground" and interpreting any pro-energy development as something against which to rally, legislate, rule, and if the Resolution passes, then also enlisting the CBA to advocate such an agenda.

To others, "climate justice" actually means something at the opposite end of the spectrum, that is doing everything possible to facilitate getting Canadian oil and natural gas to the rest of Canada and specifically, to tidewater to ultimately replace the (higher emission) coal-burning in China. After all, global CO2 emissions know no border. 

It is not my purpose here to extensively debate the merits of the Paris Accord (mentioned in the resolution's preambles). Suffice to say, the Paris Accord has numerous critics, many of whom also agree with the eventual de-carbonization of our atmosphere. One drawback is that numerous carbon-emitting countries are not part of it (either refusing to ratify like Iran or withdrawing from it like the U.S.), and yet we all share the globe's atmosphere. Another flaw is that it only counts emissions produced, but not consumed, in a country. This incentivizes a phenomenon known as "carbon leakage," where any emission reductions made by reducing local outputs are simply replaced (or exceeded) globally, as other countries then increase their outputs to meet the demand with no change in consumption. Perversely, this means if we stop producing in Canada and buy everything from China, (whose exported outputs would then be exempt from the Canadian calculations), we would meet our country's climate goals, even though this would likely cause greater global climate damage. How is that a good thing? Canadians ought to be encouraging fairer-minded solutions to global emissions, rather than being beholden to the Paris Accord, which rewards the shifting of emissions.

My main point is this: the subject area of climate is complicated, nuanced, and political. The CBA is supposed to speak for all of its members, and a single definition of "climate justice" cannot capture all of its members' perspectives on this challenging issue. Nor should it try. If justice is supposed to be blind, then we should not be trying to politicize the law. Yet, the resolution proposes to do just that.

I confess much of my motivation to oppose the resolution is based on the assumption that, after years of damage created by the largely foreign-funded environmental movement, the term "climate justice" really just means "kill Canadian oil and gas." Let me be transparent: my opposition is also motivated by my wish to defend Canadian energy from yet another attack, this time from our very own law industry association, the CBA.

Let's revisit the discussion before the COVID-19 pandemic (which now seems like eons ago):

• We are globally facing the "7 to 9 challenge" — referring to the expected growth in billions of the planet's population over the next 30 years who will also be desperate to escape poverty and enjoy the standard of living of developed nations, all of which points to increasing energy demand. No reputable source counters this prediction. I argue that the last energy molecule ought to be supplied by Canada.
• While it is a worthy goal to reduce GHG emissions and whatever human-made climate change these cause, it is imperative to have a functioning economy while also protecting the environment. The two cannot be mutually exclusive (it seems the resolution's proponents and I may agree on this); the COVID-19 pandemic proves this to be the case.
• While it would be wonderful if all of our energy supply was immediately renewable and we could boast of zero (or even negative) net emissions, the full transition to solar, wind, tidal, thermal, hydro, and nuclear energy will realistically take decades and must be funded in the interim by an incentivized oil and gas industry. Some previously-lauded alternatives may now also be losing some of their luster, such as biomass production with its related deforestation and solar power requiring quartz-mining for panels.
• Canadian energy companies have already been the ones leading the innovation charge towards net-zero emissions, which is the goal most believe to be desirable while still maintaining a robust economy that allows us to pay the bills and survive. Canadian Natural Resources Ltd., Cenovus, Shell Canada and MEG Energy, to name a few, have been investing substantial funds into research and development towards things like carbon-capture technologies in the extraction process and "BBC" (Beyond Bitumen Combustion). BBC would allow the capture and conversion of asphaltene that makes bitumen heavy into carbon fibre, thereby ultimately reducing emissions per barrel and replacing steel for greater longevity across a wider range of products, all of which is good for the global carbon footprint. This could be our global "game-changer," making the world a better place while simultaneously generating wealth for, and improving the lives of, Canadians. The more detailed explanation of this exciting new BBC technology is an easy read.
• Moving capital away from Canadian energy companies, for example through divesture of the endowment funds of various universities or depriving them of government recovery and assistance, makes their cost of obtaining money higher (re: higher interest charges), and thereby causes a disincentive to pursue these new innovative avenues when they must take the knife to the bottom-line for their shareholders. Endowment divesture and economic deprivation would consequently only hinder, not help, Canada and the planet achieving lower GHG emissions.
• Canadian energy companies are also leading the charge on Indigenous partnering (as true equity partners), such as Canadian Utilities partnering with seven Indigenous Nations in December 2019 for co-ownership of the massive Alberta Power Line, with the result that Indigenous Nations now own 40 per cent of that project. It is the projected return from these partnerships, and not government subsidies, which are going to help Indigenous Peoples finally escape poverty (and its related ills) and truly lead to the nation's goal of Reconciliation. The fact is the majority of Indigenous Peoples and their leaders (both elected and hereditary) want Canadian energy development, as well as the opportunities it provides to their communities. Just ask Stephen Buffalo, who has become a beacon of the pro-energy Indigenous movement. The best way to empower Indigenous communities is for them to be real partners in exporting Canadian energy to the planet.
• Not only does investing in Canadian energy provide jobs and wages for both Indigenous and non-Indigenous Canadians, but it also generates taxes for all levels of government — which in turn are then used to fund education, health, social programs, infrastructure, and debt repayment. Post the COVID-19 pandemic, an estimated additional debt of $300-$500 billion promised by Canada's federal and provincial governments to bolster the economy and provide citizens and businesses with various emergency funds and subsidies, will have to be repaid somehow.
• Shutting-in the Canadian energy industry, as some environmentalists would have it, would not further the "ESG" mantra, as other oil and gas supplying countries like Venezuela, Saudi Arabia, Nigeria, Russia, and China will quickly fill any void of Canada's relatively minuscule 1.6 per cent of global GHG emissions. These other nations' records on human rights, gender equality, occupational safety, democracy, and the freedom of the press do not compare to ours. The Resolution ought to be defeated on these grounds alone. Our dependence upon other countries for our various supply chains is frightening (for example, the provision of reliable Personal Protective Equipment); shudder to think if we also had to rely on foreign suppliers for most of our energy, when it is beneath our very feet.
• Supporting the Canadian energy industry is better for Canadian unity. This engine of our Canadian standard of living, envied around the world, has been shamefully abandoned by certain Canadians who are unaware of how ubiquitous petroleum and hydrocarbons are to their everyday lives, as well as what funds our overall standard of living and generous social safety net. Without them, for example, most of the products and equipment in our hospitals and homes would not exist. Imagine fighting the COVID 19 pandemic without them.

The world, and its well-intentioned people, need more Canadian energy. They also need more information, like that above.

I personally suspect "climate justice" is just code for being "Anti-Canadian Energy." Going further down this "rabbit hole" is not a wise use of the CBA's limited time and resources, particularly as we must emerge from the damage caused by the COVID-19 pandemic. 

Just because certain other law industry associations in the U.S. and other Commonwealth nations may have allowed themselves to be hijacked in recent years by special interest groups like those seeking "climate justice," the CBA must be wary of falling prey to such ideological pursuits. Anecdotally, many of my colleagues who are current CBA members were frustrated to see the resolution was before the organization. Others explained they had already quit their CBA Membership because of efforts like this in the past.

The CBA's core mandate is to educate and advocate on subjects that matter to lawyers as lawyers and not as partisans on highly debatable social topics. Simply put, this kind of motion is divisive and not in the fundamental interest of the CBA.

The resolution ought to be resoundingly rejected by CBA members.