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Supreme Court ruling on federal environmental law a step toward brighter industrial future

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5 minute read

From the MacDonald Laurier Institute

By Heather Exner-Pirot

Now we need to build: to meet net-zero goals, to supply our allies with energy and critical minerals, to compete with the U.S. Inflation Reduction Act, to bolster our anemic economy – take your pick

In a strong rebuke to the federal government, the Supreme Court on Friday issued its long-awaited opinion on the constitutionality of the Impact Assessment Act (IAA). In a 5 to 2 decision, the majority found that the Liberal government’s regulations for major projects such as oil and gas operations and mines violate provincial jurisdiction.

The decision will have lasting impact. It is a piece of cautiously optimistic news for the industry, paving the way for realizing its greatest desire: to move away from concurrent and competing federal and provincial processes for project approval, toward a more efficient principle of one project, one assessment.

There will be immediate impacts, too. It’s hard to see how the Liberal government’s proposed clean electricity regulations and oil and gas emissions cap, which is contentious on similar grounds, can now be seen as constitutional.

In the wake of the decision on Friday, the federal government promised to amend the act. The decision provides good reason for the government to start looking at its other environmental regulations through the same lens.

The IAA, which became law in 2019 after contentious Senate hearings and months of public protests, is unpopular for wholly legitimate reasons. It duplicated and often competed with provincial processes for approving natural resources projects, adding time, money, confusion and risk for companies.

It also politicized the regulatory process, allowing the federal minister of environment and climate change to designate just about any resource project in the country for assessment, and then effectively veto it too. The results, if unchecked: a quiet quitting of investors and proponents who then move their capital to greener, more predictable pastures.

Even before the Supreme Court opinion on the IAA came out, the Liberals had promised to reform it. Friday’s decision gives the government additional impetus to do it properly.

The opportunity in those forthcoming amendments is not for the federal government to take bad, unconstitutional regulatory legislation and turn it into bad, constitutional legislation. The times demand much more. The act reflected an outdated way of thinking that saw the environment and Indigenous peoples as inherently needing to be protected from the provinces and the resource sector. But the world has changed.

Now we need to build: to meet net-zero goals, to supply our allies with energy and critical minerals, to compete with the U.S. Inflation Reduction Act, to bolster our anemic economy – take your pick. Where we once applied sticks to major energy and resource projects, we now need to offer carrots. This needs to be reflected in the amendments to the IAA.

In the Liberal government’s news conference responding to the opinion, Energy and Natural Resources Minister Jonathan Wilkinson expressed hope that this would be the last time the federal and provincial governments settled their differences in court, saying “Canada works best when Canadians work together.”

Let’s all hope that happens.

A large and critical part of Canada’s economy has found itself in the crosshairs of jurisdictional infighting. It has created polarization and uncertainty, and investors and proponents of projects abhor it. Our country needs and deserves a functional regulatory process – one that doesn’t just prevent bad projects, but advances good ones, too. The Supreme Court’s decision is an opening to create one.

Heather Exner-Pirot is director of energy, natural resources and environment at the Macdonald-Laurier Institute.

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Alberta

Alberta’s Massive Carbon Capture and Storage Network clearing hurdles: Pathways Alliance

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From the Canadian Energy Centre

By Will Gibson

Pipeline front-end engineering and design to be complete by end of year

Canada’s largest oil sands companies continue to advance a major proposed carbon capture and storage (CCS) network in northeast Alberta, including filing regulatory applications, conducting engineering and design, doing environmental surveys and consulting with local communities.   

Members of the Pathways Alliance – a group of six companies representing 95 per cent of oil sands production – are also now closer to ordering the steel for their proposed CO2 pipeline.   

“We have gone out to potential pipe suppliers and asked them to give us proposals on costs and timing because we do see this as a critical path going forward,” Imperial Oil CEO Brad Corson told analysts on November 1.  

He said the next big milestone is for the Pathways companies to reach an agreement with the federal and provincial governments on an economic framework to proceed.  

“Once we have the right economic framework in place, then we will be in a position to go order the line pipe that we need for this 400-kilometre pipeline.” 

Pathways – which also includes Suncor Energy, Canadian Natural Resources, Cenovus Energy, MEG Energy and ConocoPhillips Canada – is proposing to build the $16.5 billion project to capture  emissions from oil sands facilities and transport them to an underground storage hub. 

The project was first announced in 2022 but Pathways had not provided recent public updates. The organization had stopped advertising and even briefly shut down its website during the summer in wake of the federal government’s amendments to the Competition Act in June.  

Those changes include explicit provisions on the need to produce “adequate and proper testing” to substantiate environmental benefit claims. Critics say the provisions could lead to frivolous lawsuits and could or even scuttle the very projects that Canada is relying on to slash greenhouse gas emissions.  

In early December, the Alberta Enterprise Group (AEG) and the Independent Contractors and Businesses Association jointly filed a constitutional challenge against the federal government over the new “greenwashing” rules, which they say unreasonably restrict free speech. 

“These regulations pre-emptively ban even truthful, reasonable and defensible discussion unless businesses can meet a government-imposed standard of what is the truth,” said AEG president Catherine Brownlee. 

Pathways has since restored its website, and president Kendall Dilling said the organization and its member companies continue working directly with governments and communities along the corridors of the proposed CCS project. 

Canadian Natural Resources began filing the regulatory applications to the Alberta Energy Regulator on behalf of Pathways earlier in the year. The company has so far submitted 47 pipeline agreement applications along with conservation and reclamation plans in seeking approvals for the CO2 transportation network. 

Pathways has also continued consultation and engagement activities with local communities and Indigenous groups near its pipeline corridors and storage hubs. 

“Engagement is ongoing with local communities, Indigenous groups and landowners, as well as a consultation process with Indigenous groups in accordance with Aboriginal Consultation Office requirements,” Dilling says.  

An environmental field program that began in 2021 continues to survey the network’s project areas. 

“Environmental field studies are ongoing and we are supporting Indigenous groups in completing traditional land use studies,” Dilling says.  

“Studies are supported by hundreds of heritage resource assessments, wetland classifications, soil assessments, aquatic habitat evaluations and other environmental activities.” 

In addition to working with governments and communities, Pathways expects front-end engineering and design on the proposed 400-kilometre-plus main transportation line and more than 250 kilometres of connecting pipelines to be complete by the end of this year.  

Pathways has also drilled two test wells in the proposed storage hub and plans to drill another two or three evaluation wells in the final quarter of 2024. 

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Business

Two major banks leave UN Net Zero Banking Alliance in two weeks

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From The Center Square

Under Texas law, financial institutions that boycott the oil and natural gas industry are prohibited from entering into contracts with state governmental entities. State law also requires state entities to divest from financial companies that boycott the oil and natural gas industry by implementing ESG policies.

Not soon after the general election, and within two weeks of each other, two major financial institutions have left a United Nations Net Zero Banking Alliance (NZBA).

This is after they joined three years ago, pledging to require environmental social governance standards (ESG) across their platforms, products and systems.

According to the “bank-led and UN-convened” NZBA, global banks joined the alliance, pledging to align their lending, investment, and capital markets activities with a net-zero greenhouse gas emissions by 2050, NZBA explains.

Since April 2021, 145 banks in 44 countries with more than $73 trillion in assets have joined NZBA, tripling membership in three years.

“In April 2021 when NZBA launched, no bank had set a science-based sectoral 2030 target for its financed emissions using 1.5°C scenarios,” it says. “Today, over half of NZBA banks have set such targets.”

There are two less on the list.

Goldman Sachs was the first to withdraw from the alliance this month, ESG Today reported. Wells Fargo was the second, announcing its departure Friday.

The banks withdrew two years after 19 state attorneys general launched an investigation into them and four other institutions, Bank of America, Citigroup, JP Morgan Chase and Morgan Stanley, for alleged deceptive trade practices connected to ESG.

Four states led the investigation: Arizona, Kentucky, Missouri and Texas. Others involved include Arkansas, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, Tennessee and Virginia. Five state investigations aren’t public for confidentiality reasons.

The investigation was the third launched by Texas AG Ken Paxton into deceptive trade practices connected to ESG, which he argues were designed to negatively impact the Texas oil and natural gas industry. The industry is the lifeblood of the Texas economy and major economic engine for the country and world, The Center Square has reported.

The Texas oil and natural gas industry accounts for nearly one-third of Texas’s GDP and funds more than 10% of the state’s budget.

It generates over 43% of the electricity in the U.S. and 51% in Texas, according to 2023 data from the Energy Information Administration.

It continues to break production records, emissions reduction records and job creation records, leading the nation in all three categories, The Center Square reported. Last year, the industry paid the largest amount in tax revenue in state history of more than $26.3 billion. This translated to $72 million a day to fund public schools, universities, roads, first responders and other services.

“The radical climate change movement has been waging an all-out war against American energy for years, and the last thing Americans need right now are corporate activists helping the left bankrupt our fossil fuel industry,” Paxton said in 2022 when launching Texas’ investigation. “If the largest banks in the world think they can get away with lying to consumers or taking any other illegal action designed to target a vital American industry like energy, they’re dead wrong. This investigation is just getting started, and we won’t stop until we get to the truth.”‘

Paxton praised Wells Fargo’s move to withdraw from “an anti-energy activist organization that requires its members to prioritize a radical climate agenda over consumer and investor interests.”

Under Texas law, financial institutions that boycott the oil and natural gas industry are prohibited from entering into contracts with state governmental entities. State law also requires state entities to divest from financial companies that boycott the oil and natural gas industry by implementing ESG policies. To date, 17 companies and 353 publicly traded investment funds are on Texas’ ESG divestment list.

After financial institutions withdraw from the NZBA, they are permitted to do business with Texas, Paxton said. He also urged other financial institutions to follow suit and “end ESG policies that are hostile to our critical oil and gas industries.”

Texas Comptroller Glenn Hegar has expressed skepticism about companies claiming to withdraw from ESG commitments noting there is often doublespeak in their announcements, The Center Square reported.

Notably, when leaving the alliance, a Goldman Sachs spokesperson said the company was still committed to the NZBA goals and has “the capabilities to achieve our goals and to support the sustainability objectives of our clients,” ESG Today reported. The company also said it was “very focused on the increasingly elevated sustainability standards and reporting requirements imposed by regulators around the world.”

“Goldman Sachs also confirmed that its goal to align its financing activities with net zero by 2050, and its interim sector-specific targets remained in place,” ESG Today reported.

Five Goldman Sachs funds are listed in Texas’ ESG divestment list.

The Comptroller’s office remains committed to “enforcing the laws of our state as passed by the Texas Legislature,” Hegar said. “Texas tax dollars should not be invested in a manner that undermines our state’s economy or threatens key Texas industries and jobs.”

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