Josephine V. Yam

Josephine Yam Selected as Energy Futures Lab Fellow

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Josephine Victoria Yam, the Executive Director of the Environmental Law Centre (Alberta), has been selected as one of 40 Energy Futures Lab Fellows.

These Fellows are leaders from across Alberta’s energy system who are charting the course towards shaping a new energy future for Alberta. Each of the Fellows brings a particular viewpoint representing a diverse set of interests including government, ENGOs, energy industry, academia, First Nations and community groups. What unites these leaders is an understanding of the need to move towards a new energy system for Alberta characterized by sustainability, resilience and innovation.

As Josephine notes…

"For many decades, Alberta has been a major engine of economic growth for Canada. Central to this growth is Alberta's carbon-intensive oil and gas and oil sands resources. Alberta should recognize these carbon-rich resources as opportunities - not barriers - that can help its successful transition to a carbon-constrained world".

"Alberta has a vast abundance of clean energy resources - - - solar, wind, geothermal and biomass. It can use its world-class research and innovation and its entrepreneurial spirit to develop these low carbon resources in cutting-edge, innovative ways as it did with oil and gas and oil sands many decades ago".

Want to learn more about Josephine's work with the Energy Futures Lab? Connect with Josephine via LinkedIn

Do Courts Take Judicial Notice of Climate Change?

At the recent 2015 Canadian Bar Association Symposium on “Environment in the Courtroom” in Calgary, I delivered a presentation on the topic “Judicial Notice of Climate Change”.  The presentation focused on the question of whether or not courts have accepted climate change as a scientific fact so that no further proof of its existence or cause would be required in courtrooms.

This question is quite interesting on many fronts. In the arena of public opinion, as reported in a 
2014 Forum Poll survey, while 81% of Canadians believe in climate change, there are still many who deny its existence.  According to the survey, climate denial generally emanated from the following groups: Generation X (18%), males (17%), midā€income groups (18%), Atlantic Canada (19%), Alberta (20%), Conservative voters (29%), least educated (17%), and Evangelical Christians (32%).

In the arena of politics, there are some very high-profile politicians who also deny the existence of climate change. A couple of months ago, 
The Washington Post reported that U.S. Senate James Inhofe, who is Chair of the Environmental & Public Works Committee, went on the Senate floor to bring his “proof” that climate change is the “greatest hoax ever perpetrated on the American people”. On the palm of his hand was his piece of evidence: a perfectly round snowball which he later tossed out to an unsuspecting Senate colleague.

Meanwhile, in the academic arena, there are also some very prominent scientists who still deny that climate change is caused by human activities.  The 
New York Times recently reported that Willie Soon, a scientist at the Harvard-Smithsonian Centre for Astrophysics in Boston, claimed that the variations in the sun’s energy are the cause of climate change and that greenhouse gases cause little risk to humanity. Through the Freedom of Information Act, documents revealed that he received $1.2M from fossil fuel companies for his scientific papers. The article noted that some environmental groups deemed this revelation as clear evidence of “the continuation of a long-term campaign by specific fossil-fuel companies and interests to undermine the scientific consensus on climate change”.

While many public debates continue to rage on whether or not climate change really exists, those debates are interestingly not taking place in the courtroom. As climate change science has developed, courts have increasingly taken judicial notice of it. What is judicial notice? 
Chief Justice McLachlin in R. v Find,  (2001 SCC 32)  explained that “judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute”. Thus, whenever a fact is judicially noticed, it is not subject to the ordinary procedural processes for testing evidence such as oaths and cross-examination.

So you may ask, where can the scientific consensus on climate change be found? It is found within the confines of the reports created by the 
United Nations-endorsed Intergovernmental Panel on Climate Change (IPCC). These reports provide rigorous and balanced scientific information to decision-makers. They are written by hundreds of leading scientists and reviewed by thousands of experts. They provide full scientific, technical and socio-economic assessments on climate change. And what have these reports concluded? That warming of the climate is undeniably happening, that human-caused greenhouse gas emissions are likely causing the climate to warm, and that adverse climate-related impacts are presently occurring and are expected to increase in the future unless significant reductions of greenhouse gas emissions are achieved.

In the landmark case for judicial notice of climate science,  the 
U.S. Supreme Court in Massachusetts vs EPA (2007) stated that: “[a] well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere.  Respected scientists believe the two trends are related.” It also stated that “[t]he harms associated with climate change are serious and well recognized”.

Indeed, U.S. courts have heavily relied on IPCC reports because they have various indicia of reliability favoured by the U.S. laws of evidence. They are also backed by highly credentialed organizations and scientists. An American Bar Association article noted that in fact, no judge, except in one dissent, has expressed skepticism about the science underlying climate change. In a survey of the more than 400 climate change litigation cases that have been launched in the U.S., it was noted that the debate on climate change in courts is 
neither based on its existence nor its cause. Rather the debate is based on its detrimental impacts and to whom those impacts can be attributed.

In Canada, the court in 
Syncrude vs Canada (2014 FC 776) likewise took judicial notice of climate change. As Justice Zinn declared:  “The evil of global climate change and the apprehension of harm resulting from the enabling of climate change through the combustion of fossil fuels has been widely discussed and debated by leaders on the international stage.” Thus, he noted that “[c]ontrary to Syncrude’s submission, this is a real, measured evil, and the harm has been well documented”.

Nevertheless, the success of any climate change litigation will turn on the factual basis that is established by the plaintiffs. Indeed, despite the scientific consensus that greenhouse gas emissions cause climate change, it is difficult to prove the contribution of specific defendants to the problem in a specific location. It cannot be denied however that climate change litigation performs several functions: to keep the pressure on fossil fuel companies and other large emitters, to keep the issue live in the public mind, and to send a strong message to the legislature that comprehensive climate legislation is needed because current statutes are inadequate to address it.

At the end of the day, while courts have taken judicial notice of climate change, the future of climate change litigation is less certain. This is because it hinges on the strong political will and ambition of governments to establish, implement and strongly enforce climate change legislation.

Is Canada Ready for the 2015 Paris Climate Change Conference?

At the 2015 Canadian Association of Environmental Law Societies Conference held at the University of Calgary last week, I presented a brief overview of global, Canadian and provincial developments in carbon pricing and greenhouse gas reduction policies.  One of the questions I sought to address was whether Canada can be expected to have a strong, ambitious national carbon pricing policy in time for the Paris climate change conference in December 2015.

Indeed, the Paris climate conference has been touted as the "world’s last best chance to reach an agreement on cutting carbon emissions."  As successor to the Kyoto Protocol, the international climate change treaty that emerges from Paris will consolidate all the Intended Nationally Determined Contributions (INDCs) of more than 190 developed and developing countries.  The INDCs are countries’ plans that articulate their greenhouse gas (GHGs) reduction targets and how these will be achieved, including the possible use of market-based mechanisms such as emissions trading and carbon taxes.

“Ambitious but achievable” are adjectives that the 
Guardian used to describe the upcoming Paris international climate treaty. Why? Last November 2014 in China, U.S. President. Barack Obama & China President Xi Jinping forged a historic deal that their countries, the two largest emitters in the world, would commit to significantly reduce their GHGs. For the U.S., Obama committed to cutting its GHGs between 26% and 28% by 2025 over the 2005 baseline period. For China, Xi Jinping committed to peaking its GHG emissions by 2030. China is also poised to officially launch a national emissions trading market in 2016. Not to be outdone, the European Union, which has the largest emissions trading scheme in the world with 30 countries participating, also committed to cutting its GHGs by 40% by the year 2030 using a 1990 baseline. Interestingly, even Pope Francis is scheduled to issue an encyclical this year to encourage his 1.2 billion Catholic followers to take action on climate change because it is a moral responsibility.

With bold, significant steps by the U.S., China and the European Union, the question arises: Will Canada follow suit and forge ahead with a strong, ambitious national climate policy in time for the Paris climate conference?  To address this question, it may be helpful to recall Canada’s historical record on the climate file.

In 1997, Canada made a binding commitment under the Kyoto Protocol to reduce its GHGs by 6% below 1990 levels by 2012. In 2011, Canada withdrew from the Kyoto Protocol because it had already emitted 30% more above its Kyoto obligation.  If Canada fulfilled its Kyoto obligation, the government claimed that it would cost Canada $14 billion or about $1,600 for every Canadian family.

Because the federal government knew that Canada would fail in its 2012 Kyoto obligation, as early as 2009, it committed the country to a non-binding commitment to reduce its GHGs by 17% below 2005 levels under the Copenhagen Accord.  As of 2014, however, Canada has already missed its Copenhagen target by 122 megatonnes of CO2e.

Given Canada’s dismal record of keeping its climate reduction obligations, it appears that Canada is not poised to emerge with a strong, ambitious national carbon pricing policy at the Paris climate conference. This conclusion is buttressed by Prime Minister Stephen Harper who 
avowed: “It’s not that we don’t seek to deal with climate change, but we seek to deal with it in a way that will protect and enhance our ability to create jobs and growth, not destroy jobs and growth.”

To fill in this void on federal climate policy, several provinces have gone ahead and established their own carbon pricing schemes. Alberta has its emissions intensity trading scheme, being the first jurisdiction to legislate on reducing GHGs in North America. British Columbia has a revenue-neutral carbon tax scheme, which has won praise from the OECD and the World Bank. Quebec has a cap-and-trade scheme which is linked with California’s scheme through the Western Climate Initiative. Ontario has cut its emissions by 6% below 1990 levels and will soon be implementing either a cap-and-trade scheme or a carbon tax this year.

But there is still time for Canada to act. It should seize this rare opportunity to repair its poor climate change reputation by joining the 
74 national governments that the World Bank has reported as supporting a strong carbon price. In doing so, Canada can manifest its climate leadership in time for the Paris climate conference. However, this can only happen if the Canadian government can muster within itself the strong political will and courage to do so.

By 2023, a Changed World in Energy

“When it comes to energy, the rule of the game is to expect the unexpected,” observed energy historian Daniel Yergin in the New York Times article, “By 2023, a Changed World in Energy”.

Yergin noted: “So much effort is going into research, development and innovation all across the energy spectrum, 10 years from now we may well see the next game changer.”

Writer Clifford Krauss recalls that, in 2003, American natural gas fields were thought to be depleting rapidly such that expensive terminals for natural gas importation, not exportation, were being built. U.S. oil production was likewise declining at rapid rates.

Now, ten years later, the U.S. is well on its way to become energy independent, thanks in no small part to new drilling technology that has made its oil and natural gas fields much more productive. In fact, in its latest World Energy Outlook, the International Energy Agency (IEA) reported that the U.S. will overtake Saudi Arabia and Russia as the world's top oil producer by 2017. This will have massive geopolitical consequences, as the U.S. will no longer depend on undemocratic regimes like Venezuela or Nigeria for obtaining its oil supply.

So what will the energy world look like in 2023? It will be a different energy world where there will be widespread adoption of electric cars, solar panels by business and households and trains and trucks guzzling on natural gas. It will be a world where renewable energy sources will become dominant, accounting "for 32 percent of the overall growth in electricity generation through 2040.”

According to the IEA, the emerging market economies, like China, will still be reliant on fossil fuels through 2035. Yet, it reports that China’s new government has committed to investing more than $70 billion a year in clean energy projects, in recognition of the imperative sustainability path that it must undertake to quench its still growing energy appetite.

“Much of the future of energy will depend on government policy, of course,” noted Krauss. And indeed, a clean energy world will only be possible if governments around the globe arm themselves with the solid political will and foresight to bravely implement policies that support sustainable growth that is so crucial in this carbon-constrained decade.

Sustainable Development: Intersection of Economy & Environment

It is crucial that you get the attention of the "people who hold the purse strings", namely Finance Ministers, if you want countries to strategically move towards sustainable development, said Rachel Kyte, World Bank VP for Sustainable Development, In her blog "Why Finance Ministers Care About Climate Change & Sustainable Development",

She said that climate change was front and centre of discussions among the world's Finance Ministers at their annual World Bank/IMF Spring Meeting in Washington this weekend. Climate change "isn’t just an environmental challenge, it’s a fundamental threat to economic development and the fight against poverty... If the world does not take bold action now, a disastrously warming planet threatens to put prosperity out of reach for millions and roll back decades of development."

Fortunately, there has been great progress around the world in the fight against climate change. For example, an increasing number of countries have or are in the process of establishing their carbon markets to link with each other and put a price on carbon. This market-based approach will effectively help drive greenhouse gas emissions (GHGs) down and spur clean energy investments. Through the Partnership for Market Readiness (PMR) established by the World Bank, countries around the world explore innovative and cost-efficient ways to drive down GHGs while building financial flows.

Indeed, it is crucial to have had that discussion among the Finance Ministers, to discuss with them that the fight against climate change is a win-win proposition for both their countries' valuable environments and value-based economies.

U.S., China Forge Historic Deal on Climate Change

"Groundbreaking" is the appropriate word to describe the United States - China deal recently forged to jointly combat climate change. Being the world’s two biggest economies and greenhouse gas (GHG) emitters, their monumental “call to action” to reduce GHGs will be undertaken "by advancing cooperation on technology, research, conservation, and alternative and renewable energy."

The National Post article reported that this deal was reached during U.S. Secretary of State John Kerry's visit to China this weekend. Kerry is known to be a staunch advocate for advancing U.S. policies on GHG reduction and climate change.

The U.S.-China joint statement forcefully enunciated that both countries “consider that the overwhelming scientific consensus regarding climate change constitutes a compelling call to action crucial to having a global impact on climate change.” Moreover, they recognize that an “urgent need to intensify global efforts to reduce greenhouse gas emissions… is more critical than ever” and believe that “such action is crucial both to contain climate change and to set the kind of powerful example that can inspire the world.”

Noted Alden Meyer, representative for the Union of Concerned Scientist in the United States: By “pledging to set the kind of powerful example that can inspire the world," both countries "raise expectations" that they "will move more forcefully to confront the threat of climate change."

Yet, as we all know, the devil will surely be in the details. So we wait in anticipation as the U.S. and China discuss the details of this historic deal in an upcoming Strategic and Economic Dialogue meeting later this July.

The Accelerated Growth of Carbon Markets

"Right now, the carbon markets of the future are under construction in all corners of the world", enthused Rachel Kyte, Vice President of Sustainable Development at the World Bank, in a recent Huffington Post article.

According to Kyte, at least 35 countries, 18 sub-national jurisdictions in the U.S. and Canada, and 7 Chinese cities and provinces will eventually be launching their own carbon markets to reduce their greenhouse gas emissions (GHG).

For example, China has vocally expressed its resolute determination to use the "magic of the market" of emissions trading as a way of greening its robust economy. The Chinese government believes that the creation of its own national carbon emissions market will serve as a very efficient strategy to achieving a sustainable green economy.

The linking of carbon markets with one another is crucial to achieving cost efficiencies in reaching a global carbon price for carbon credits. To this end, the World Bank established the Partnership for Market Readiness (PMR) in 2011, which has brought together over 30 developed and developing countries to consolidate their efforts in creating market-based instruments for GHG emissions reduction, including the creation of emissions trading schemes. Indeed, this bottom-up approach may prove to be a more effective way to successfully combat climate change.

Time to Confront Climate Change

The New York Times editorial “Time to Confront Climate Change” recalls that during his first term, President Obama described climate change as one of humanity’s most pressing challenges. He pledged an all-out effort to pass a cap-and-trade bill that would limit greenhouse gas (GHG) emissions. Unfortunately, during that period, many political obstacles blocked Mr. Obama’s administration from successfully passing a cap-and-trade bill.

Since his re-election in November 2012, President Obama identified climate change as one of his top priorities in his second term. In his interview for TIME’s Person of the Year award, he cited the economy, immigration, climate change and energy at the top of his agenda for the next four years.

The article then raised a very important question: Will President Obama bring the powers of the presidency to bear on the climate change problem?

President Obama has strategic “weapons” within his reach to tackle climate change and reduce emissions while reasserting America’s global leadership, the article notes.

One weapon he has is to ensure that natural gas, which is hugely abundant in the U.S., is extracted without risk to drinking water or the atmosphere. Indeed, the U.S. has natural gas in abundance, a boon considering that it emits only half the GHG emissions as coal does. This can be undertaken by the Obama administration through national legislation to replace the inconsistent, patch-work requirements of various state regulations.

Another weapon President Obama has is to enact and implement policies both in well-known clean energy technologies (i.e. wind power and solar power) as well as in basic research, next-generation nuclear plants and promising technologies that could lead to a low-carbon economy.

Moreover, another weapon within President Obama’s arsenal is to call on the Environmental Protection Agency (EPA)’s authority under the Clean Air Act to limit emissions from stationary sources, mainly coal-fired power plants. The EPA has already proposed strict emission standards for new power plants that can only be built when they have installed carbon capture and sequestration technologies. The problem that the EPA will need to deal with is what to do with existing coal-fired power plants, which still generate about 40% of U.S. electricity power.

At the Copenhagen climate meeting back in 2009, President Obama committed that the U.S. would reduce its GHG emissions by 17% below 2005 levels by 2020. With the abundant supply and strong demand for cheap natural gas as well as the EPA’s newly established fuel standards and mercury rules, among others, the U.S. is now on its way to achieving a 10% GHG reduction by 2020.

Thus, it appears that reaching President Obama’s 17% goal is within the realm of the possible after all. That is, if he courageously uses the powers of his presidency to wield the strategic weapons he has to tackle climate change.

5 Steps for Business-friendly Climate Agenda

Eric Pooley provides five steps that President Obama should take to address climate change in his second term. In his Harvard Business Review article, “A Business-Friendly Climate Agenda for Obama's Second Term”, Pooley outlines how the president can fulfill his promise to ensure that America "isn't threatened by the destructive power of a warming planet". He emphasizes that the following 5 steps can only be successful with the active support and participation of private industry.

1. Feed the conversation. President Obama can start by simply by talking about the issue and helping Americans see the relationship between emissions, climate change and extreme weather. This conversation is crucial as it engages the voices from private industry, including insurance companies, pension funds, banks and small business. To be politically viable, climate solutions must be economically sustainable.

2. Reduce climate accelerants. President Obama can take immediate steps to reduce potent greenhouse gases other than carbon, such as methane and fluorinated gases used in refrigerants and industrial applications. Although carbon is most ubiquitous, these substances are "climate accelerants", which means that they accelerate global warming the same way gasoline fuels a fire.

3. Start a clean energy race. President Obama can reduce subsidies for fossil fuels, continue tax credits for renewable energy while increasing R&D funding. Congress should pass national clean energy standards, which would require states to get more energy from renewables. Obama should also encourage private capital to invest in low-carbon energy by removing barriers to investments in efficiency and renewables.

4. Use the Clean Air Act. President Obama should use the Clean Air Act to reduce greenhouse gas emissions, under authority confirmed by the U.S. Supreme Court in Massachusetts v. EPA. This means vigorously defending the clean-air rules that his administration has already put in place, including the historic higher fuel economy standards for new cars and trucks and restrictions on the emission of mercury and other toxic air pollution for power plants. His administration should also set CO2 emission standards for new and existing power plants through flexible and economically efficient approaches.

5. Put a price on carbon. President Obama should heed the call of economists from across the political spectrum that believe that the most economically efficient way to cut carbon pollution is by imposing a price via a carbon tax or through cap and trade. Either would be a powerful incentive to produce cleaner power and could be accompanied by lower taxes on labor or capital, easing the impact on working families and business. As the U.S. moves toward a fiscal cliff, there is slew of discussions in Washington about raising revenue through a carbon fee. It could be in the form of a carbon tax starting at $20 per metric ton and rising at 6% a year that could raise $154 billion by 2021.

Energy and Climate Change in Obama's To-Do List

In the New York Times article, “A To-Do List for the Next For Years”, Carol Browner proposes the need for President Barack Obama to finally execute on a climate change agenda. Ms. Browner was former director of the White House Office of Energy and Climate Change Policy from 2009 to 2011 and the administrator of the Environmental Protection Agency (EPA) from 1993 to 2001.

“Energy and climate change, two issues that deeply divide the country, stand out as major pieces of unfinished business for the Obama administration,” she notes. Nevertheless, she points out that President Obama has unequivocally stated that “even for those who don’t believe climate change is real, the benefits of clean energy -- cleaner air, energy independence, American jobs and enhanced global competitiveness -- are just too important to ignore.”

How then can President Obama execute on a climate change agenda? By using his executive authority and by leverage existing energy laws.

The U.S. Supreme Court has affirmed the EPA’s authority to limit greenhouse gases that endanger public health. Browner recalls that during his first term as president, Obama used an energy bill signed by George W. Bush to reach an agreement on cleaner, more fuel-efficient cars. Car manufacturers had business certainty, consumers saved money at the pump and the environment became cleaner. She notes that President Obama can use this existing authority to work with the electric utilities to reduce carbon pollution and secure greater energy efficiency while providing business certainty.

Ms. Browner also recommends that given the abundance of natural gas, the Obama administration must ensure that “fracking” is done in accordance with strong public health standards. Also, instead of 20 to 30 different state regulations that are imposed on fracking businesses, the Obama administration should just develop one set of national requirements based on the best available science and technology while leaving the oversight and enforcement up to the states.

Indeed, by executing on a strong climate change agenda in the next 4 years, President Obama can ensure that the U.S. moves steadily and unconditionally towards a sustainable, clean energy future.

U.S. Energy Boom: Miracle or Mirage?

In his New York Times op-ed article, “Is the Energy Boom a Mirage?”, Steve Yetiv remarked that while the U.S. is experiencing a boom in oil and natural gas production, the benefits of the boom may have been exaggerated. For instance, it will neither automatically produce lower oil prices nor bring greater energy security as expected.

Mr. Yetiv set out several reasons why optimism for boom must be tempered. One reason is the growing backlash against hydraulic fracturing, or fracking, which can pollute water systems. While emerging technologies are making fracking safer and less environmentally damaging, the costs involved are currently not financially justifiable.

“To be sure”, he observed, “the American boom has its positives…Use of America’s abundant natural gas can also offset reliance on dirtier coal.” But he cautioned that “a boom in fossil fuels is hardly something to celebrate, given the urgency of climate change.”

Federal Court of Canada Holds that Canada can Legally Withdraw from Kyoto Protocol

On January 13, 2012, Daniel Turp filed an application with the Federal Court for judicial review of the Government of Canada’s decision to withdraw from the Kyoto Protocol. Its decision to withdraw was communicated to the Secretary General of the United Nations on December 15, 2011. Turp asserted that withdrawal from the Kyoto Protocol was illegal as it was in violation of the Kyoto Protocol Implementation Act (KPIA), among others.

On July 17, 2012, in Turp v. Canada, the Federal Court dismissed the application for judicial review. It found, among other things, that the KPIA, which established certain climate-change-related reporting obligations on the Canadian government, did not limit its royal prerogative to withdraw from the Kyoto Protocol. Thus, the government’s decision to withdraw from the Kyoto Protocol did not violate the KPIA.

The full decision of Turp v. Canada can be accessed at this link:
http://cas-ncr-nter03.cas-satj.gc.ca/rss/T-110-12%20kyoto%20decision%20ENG.pdf

Carbon Finance: To Trade or Tax?

There are a lot of features of a Carbon Tax that make it an effective economic-incentive approach to address climate change:

  1. Carbon taxes lend predictability to energy prices. This allows for strategic decision-making involving energy to be made will full awareness of the carbon–appropriate price signals, whether it is design of new electricity generating plants to the purchase of the family car.
  2. Carbon taxes will provide quicker results. The taxes themselves can be designed and adopted quickly and fairly.
  3. Carbon taxes are transparent and are easier to understand than Cap & Trade. The government simply imposes a tax per ton of carbon emitted, which is easily translated into a tax per kWh of electricity or gallon of gasoline.
  4. Carbon taxes address all sectors and activities producing carbon emissions. They target carbon emissions in all sectors such as energy, industry and transportation.

Indeed, the three-letter word called “tax” can spell political suicide for some governments, especially in the midst of this global financial crisis. Thus, some governments may not be bold enough to espouse it as a strategic policy tool to fight climate change.

Written: 2011 November
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