Pembina Institute for Appropriate Development v. Canada is the first Canadian court case insisting that greenhouse gas (GHG) emissions must be evaluated when conducting environmental assessments. However, the Canadian government considers even major new sources of greenhouse gases to have insignificant environmental effects.

The controversial Alberta oil sands, the engine of Western Canada's growth, are Canada's largest and fastest-growing source of GHG emissions. It is therefore no surprise that this government has adopted no legislation to control GHG emissions, although some intensity-reduction regulations are promised for future years.

The Alberta government is an even stronger defender of the oil sands, which allow them to keep expenditures high and taxes low.

Meanwhile, Imperial Oil's huge new Kearl oil sands mine required federal and provincial environmental assessment. This included a Canadian Environmental Protection Act environmental impact assessment (EIA) because the project needed a permit to destroy a fish habitat. A joint federal/provincial panel was appointed to review the EIA. The panel recommended that the federal government approve the mine, concluding that its net adverse environmental effects would be "insignificant," even though it will emit 3.7 million tonnes of GHG per year, equal to 800,000 cars. Imperial got its permit.

Four NGOs (including the Pembina Institute) took the government to court, citing numerous deficiencies in the EIA. On March 5, 2008, the Federal Court upheld most of the EIA, even though the mine's effects on air, land, water and endangered species remained uncertain. The court was content to leave these issues to "adaptive management," to new, if unproven, technologies, and to provincial environmental regulators.

Yet even with this very permissive approach, the court could not uphold the panel's ruling on GHGs. The panel merely stated that the mine's GHG emissions would have insignificant adverse environmental effects, without explaining why. The proposed mitigation measures were, in total: "the joint panel supported Alberta developing appropriate EPEA [Environmental Protection and Enhancement Act] approval requirements to address greenhouse gas emission intensity targets." The court therefore sent the issue back to the panel to provide better reasons.

This destroyed the legal underpinning for the Fisheries Act permit. On March 20, 2008, DFO revoked it, but the loss was short-lived.

In June, DFO gave Imperial its permit again. The panel filed an addendum saying, in essence, that Imperial's huge GHG emissions won't result in "significant adverse environmental effects" because the emissions are not illegal, and are only a small contribution to a very large issue. Governments ought to do something about climate change on a regional scale, they said, not expect proponents to do so on individual projects, however huge. Besides, they said, Alberta is doing something:

The Joint Panel finds that Alberta's plan to implement intensity-based targets to reduce GHG is an effective way to limit and monitor GHG emissions from the oil sands and other large emitters. …implementation of such a regulatory scheme will likely result in GHG emissions, on a project and regional basis that will be lower than if the status quo was maintained.

This is not likely to be the end of the story. In Canada, as in the U.S., the failure of the federal government to take action on climate change may leave the real initiative to the courts. PE