Josephine V. Yam

Environment

Canada Exercises Legal Right to Withdraw from Kyoto Protocol

American Bar Associatin Climate Change Sustainable Development Journal
This article was originally published by the American Bar Association (ABA)'s Energy, Environment and Resources Section in its Climate Change, Sustainable Development and Ecosystems Committee Newsletter of April 2012.

The ABA noted: "Josephine Yam's article discusses the legal context and ramifications of the decision by the government of Canada last December to withdraw from the Kyoto Protocol. As Yam notes, this decision was the latest in a history of major swings in Canadian climate policy and largely driven by the reality that the growth of the country’s GHG emissions made it impossible to meet its reduction target barring a politically unrealistic commitment to a multibillion dollar purchase of reduction credits. Yam describes the legal consequences of the decision, which did not cause the Kyoto Protocol to lose effectiveness, and considers the government’s potential options going forward."

Introduction


On December 12, 2011, Canadian Environment Minister Peter Kent announced: "Kyoto, for Canada, is in the past. As such, we are invoking our legal right to withdraw from Kyoto." Kent had just arrived in Ottawa, Canada from the United Nations climate conference that concluded the day before in Durban, South Africa.

This makes Canada the first of 191 signatories to the Kyoto Protocol to annul its emissions-reduction obligation. By formally withdrawing from this climate accord, Canada will no longer have an enforceable greenhouse gas (GHG) emissions-reduction obligation of 6 percent below 1990 levels by 2012. Nevertheless, Canada still remains a party to the United Nations Framework Convention on Climate Change (UNFCCC) and thus, will continue to participate in negotiations under that international treaty to collaboratively discuss the impacts of global climate change.

This article reviews the background and implications of this decision.

Canada’s Emissions Profile


The evolution of Canada’s GHG emissions profile reflects its emerging stature as a global producer and consumer of carbon-concentrated fossil fuels. Although its GHG emissions only contribute about 2% of annual global emissions, Canada’s total emissions on a per-capita basis have consistently ranked among the world’s top 10 emitters over the past 10 years.

In 1990, Canada’s total GHG emissions were about 592 megatons (Mt) of carbon dioxide equivalent. In 2000, its GHG emissions increased to 717 Mt, due in part to the rapid the growth of the domestic oil and gas industry – Canada has the world’s third-largest proven crude oil reserves. In 2004, its GHG emissions increased further to 741 Mt, more than 20 percent above 1990 levels. Canada’s emissions continued growing and in 2007, reached 747 Mt, more than 26 percent above 1990 levels.

This significant growth in GHG emissions from 1990 to 2007 is attributable mainly to the 217 percent growth in emissions from the mining sector, which, in turn, was principally due to the rapid development of the oil sands in Alberta. By 2012, Environment Canada forecasts that GHG emissions will increase to between 770 Mt and 790 Mt due to increased emissions from the oil and gas and transportation sectors – an increase of about 30 percent above the country’s Kyoto commitment.

Canada’s History with the Kyoto Protocol


The Kyoto Protocol is a 1997 international agreement made in Kyoto, Japan that amends the UNFCCC. It obligates developed countries, such as Canada, to cut GHG emissions by an average of 5.2 % below 1990 levels. The first commitment period of the Kyoto Protocol began on January 1, 2008, and ends on December 31, 2012. Developing countries, including China, India, Brazil and South Africa, were asked to set only voluntary GHG reduction targets. The United States is not a party to the Kyoto Protocol, having refused to ratify it because of the asymmetrical obligations between industrialized and developing countries.

In 1990, prior to the Kyoto Protocol, Conservative Prime Minister Brian Mulroney’s government issued Canada’s Green Plan for A Healthy Environment (the Green Plan). The Green Plan was intended to serve as the grand scheme of Canada’s environmental policy over the next five years. Although its target was to stabilize Canada’s total GHG emissions at 1990 levels by 2000, the Green Plan provided very little guidance on the specific measures Canada should take to attain this target. In 1993, Liberal Prime Minister Jean Chrétien jettisoned the Green Plan. Instead, his government launched various voluntary emission reduction initiatives with private industry, particularly large industrial emitters, though with limited success.

In 1997, Chrétien announced that Canada would commit to stabilizing its total emissions at 1990 levels by 2012 at the upcoming Kyoto climate conference. However, a day before departing for Kyoto, Chrétien surprisingly announced that Canada would commit itself to an emissions reduction target of 3% below 1990 levels by 2010. This shocked the Canadian provinces because the federal government made the announcement without consulting them. Moreover, it was unlikely given expected growth in the energy sector that Canada would even stabilize its emissions at 1990 levels by 2010, much less reduce them 3% below 1990 levels.

At Kyoto, Chrétien’s delegation eventually committed Canada to reduce its GHG emissions by 6% below 1990 levels by the five-year commitment period of 2008-2012. Thereafter, Canada signed the Kyoto Protocol in 1998 and formally ratified it in 2002. During that period, the federal government released its Climate Change Plan for Canada (the Climate Change Plan), which aimed to meet only 180 Mt total emissions reduction out of Canada’s 280 Mt Kyoto obligation. The Climate Change Plan sought to achieve this by introducing an emissions trading system for large industrial emitters in Canada for the very first time.

In 2005, under the leadership of Liberal Prime Minister Paul Martin, the federal government issued Project Green: Moving Forward on Climate Change (Project Green), which introduced an emissions intensity cap-and-trade system for large industrial emitters. Like the Climate Change Plan, Project Green severely fell short of achieving Canada’s Kyoto obligations, targeting a mere 13% of Canada’s required emissions reduction obligation.

Upon taking office in 2006, Conservative Prime Minister Stephen Harper stated unequivocally that he would not implement the Kyoto Protocol. He argued that Canada’s targets, which were established by the previous Liberal government, were unrealistic and unachievable. Instead, the federal government issued the Regulatory Framework for Air Emissions in 2006 and the Turning the Corner strategy in 2008 with more modest aims for controlling industrial emissions.

In 2009, the Harper government agreed to a non-binding commitment at the United Nations talks in Copenhagen, Denmark to reduce its emissions by 17 percent by 2020 from 2005 levels. This commitment is in lockstep with the pledge of the United States, Canada’s largest trading partner, which it also made in Copenhagen. Canada’s commitment was formally reiterated in the Cancun Agreement adopted in 2010. In 2011, Canada officially withdrew from the Kyoto Protocol at the most recent meetings of the Parties to the UNFCCC in Durban, South Africa.

Reasons for Canada’s Withdrawal


Minister Kent justified Canada’s withdrawal from the Kyoto Protocol because it did not cover the world’s largest emitters, China and the U.S. Thus, even if Canada took action to comply with its Kyoto commitment, global emissions were still expected to rise due to growth in these two countries. Because Canada only produces 2 percent of overall global GHG emissions, any efforts on its part to reduce emissions would contribute very little to stem the rise of global emissions.

Moreover, if Canada tried to comply with its Kyoto commitment, it would be obligated to purchase large quantities of emission reduction permits through the trading mechanism authorized by the Protocol, estimated to cost about $14 billion. This would detrimentally affect its economic competitiveness.

Kent described this “Kyoto cost to Canadians” as the equivalent of the “transfer of $14 billion from Canadian taxpayers to other countries” or “the equivalent of $1,600 from every Canadian family, with no impact on emissions or the environment.” It would also be analogous to either “removing every vehicle of every kind from Canadian roads,” or “closing down the entire farming and agricultural sector and cutting heat to every home, office, hospital, factory and building in Canada.”

By withdrawing from the Kyoto Protocol, Canada also avoided being officially declared as non-compliant under the climate accord and thus, being subjected to potential penalties for non-compliance.

Legal Basis for Canada’s Withdrawal


Canada exercised its legal right to formally withdraw from the Kyoto Protocol as specifically embodied in Article 27 (http://unfccc.int/essential_background/kyoto_Protocol/items/1678.php), which provides that:

  1. At any time after three years from the date on which this Protocol has entered into force for a Party, that Party may withdraw from this Protocol by giving written notification to the Depositary.
  2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.
  3. Any Party that withdraws from the Convention shall be considered as also having withdrawn from this Protocol.

This means that a country can withdraw after three years from the date the Kyoto Protocol came into force, which is February 2005. A country that wants to withdraw from the Kyoto Protocol has to provide one-year prior written notice before such withdrawal is effective.

Canada’s Kyoto obligations span the first commitment period of 2008-2012. Thus, to avoid being declared as non-compliant with the Kyoto Protocol, Canada needed to provide its withdrawal notice before December 31, 2011 in time to be officially out of the Kyoto Protocol before December 31, 2012. Although Canada has withdrawn from the Kyoto Protocol, it still remains a party to the UNFCCC.

Global Reaction to Canada’s Withdrawal


International censure to Canada's withdrawal was strong and vehement at the Durban negotiations. Chinese media called Canada’s decision as “preposterous and irresponsible action that will scar global climate-change efforts.” India’s representatives warned that such decision would “jeopardize any gains that might flow from the talks in Durban, South Africa toward a new agreement.” Tuvalu, a low-lying island nation that is most vulnerable to rising sea levels, labeled Canada’s withdrawal “a reckless and totally irresponsible act” that has become “an act of sabotage on our future.”

Christiana Figueres, Executive Secretary of the UNFCCC, called Canada’s withdrawal “regrettable” and “surprising.” She added, “Whether or not Canada is a Party to the Kyoto Protocol, it has a legal obligation under the Convention to reduce its emissions, and a moral obligation to itself and future generations to lead in the global effort.”

There was also vigorous disapproval from Harper’s political opposition and various environmental organizations within Canada. The Green Party of Canada said that Canada's withdrawal “would hurt the new agreements from Durban before the ink is dry.”

On the other hand, there was also strong international support for Canada’s withdrawal from some quarters. Australian representatives to Durban said that the withdrawal “should not be used to suggest Canada does not intend to play its part in global efforts to tackle climate change.” Likewise, some German media said that Canada’s withdrawal “represents a victory of reason. It shows that protecting the environment produces costs that, given concern over jobs, not everyone is willing to pay, particularly when important countries refuse to be pressured into joining environmental protection treaties. The government in Ottawa thus deserves our praise.”

As was expected, many Canadian corporations, especially those in the oil and gas sector, expressed solid support for Canada’s withdrawal. Commentators noted that “technology improvements will have a bigger impact on Canada’s greenhouse gas input than an international climate change treaty” especially because “Kyoto hasn’t been a strong treaty.”

Canada Looks Ahead


At the recent climate conference in Durban, South Africa, delegates from 194 countries reached an agreement entitled, the “Durban Platform for Enhanced Action” (the Durban Platform). It commits all UNFCCC parties, including China, the United States, Brazil and India, to establish a process to negotiate a new climate change treaty by 2015 that would come into force in 2020. Also, thirty-five countries have committed to taking on binding emissions-reduction obligations after the Kyoto Protocol expires in December 2012. This second commitment period, which will begin on January 1, 2013, will have an expiration date of either December 31, 2017 or December 31, 2020.

“The Durban Platform is a way forward that builds on our work at Copenhagen and Cancun,” Kent said, “Although these negotiations will be difficult, we are cautiously optimistic that we will reach a new agreement by 2015.”

Whether or not Canada has paved the way for other countries to exit the Kyoto Protocol remains to be seen.
Josephine V. Yam
Josephine is CEO & Co-Founder of B3 Canada, a mission-driven organization in Canada dedicated to building breakthrough boards through innovative board matching services for businesses, professionals and nonprofits.

Josephine is a highly accomplished lawyer-social entrepreneur with significant years of professional legal, policy, leadership and entrepreneurial experiences in the private, public and nonprofit sectors in Canada and internationally. She has been admitted to practice law in New York (USA), Alberta (Canada), Ontario (Canada) and the Philippines. She has also been interviewed on international television such as CNN and CNBC and featured in the international news magazine Newsweek.

Josephine recently graduated from Stanford University's Executive Program for Non-Profit Leaders. She also completed her Master of Laws (LLM) degree at the University of Calgary, Faculty of Law. Complimenting her advanced education at Harvard Law School and the University of Toronto, Josephine currently serves as one of the Energy Futures Lab Fellows of The Natural Step Canada.

Before founding B3 Canada, Josephine was the Executive Director of the Environmental Law Centre of Alberta and Lead Advisor for Corporate Consulting at the Pembina Institute. As Board Member of Immigrant Services Calgary, a large registered charity, Josephine served as Corporate Secretary, member of the Executive Committee, Board Development & Nominating Committee, Audit & Finance Committee and CEO Evaluation Committee. In the public sector, Josephine served as Senior Legal Counsel with the Government of Alberta’s Ministry of Justice and Ministry of Energy. In the private sector, Josephine worked with the international law firm Baker & McKenzie in its Hong Kong, Manila and Toronto offices, the Asian Development Bank and Procter & Gamble.

With her significant legal and senior management experiences in the private, public and nonprofit sectors in Canada and internationally, Josephine deeply understands that cross-sector collaboration in social innovation is crucial to achieving positive change in the world. This is what drives her deep commitment to advance B3 Canada’s mission of strengthening the board leadership capacity of Canada’s nonprofit sector as a force for good in society.

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