Integrating Climate Change Mitigation into the Impact Assessment Act

• Author: Meinhard Doelle
• Pages: 277-300

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Integrating Climate Change Mitigation

into the Impact Assessment Act

Meinhard Doelle*

A. INTRODUCTION

The successful conclusion of the UN climate negotiations resulted in

the Paris Agreement’s entry into force on 4 November 2016. Most UN

member states — including Canada — have committed to make all rea-

sonable eorts to reduce their greenhouse gas (GHG) emissions and to

become carbon neutral within the next few decades.1 All parties have

set some initial reduction targets that are to be enhanced over time.2

Impact assessment (IA) is a critical tool for meeting both short- and

long-term commitments as it provides an opportunity to ensure that

decisions about new projects, proposals, and undertakings are con-

sistent with decarbonization goals.

Integrating climate change into IA requires consideration of both

mitigation and adaptation, along with the adverse impacts not pre-

vented through mitigation and adaptation eorts (sometimes referred

to as loss and damage). Although these areas are connected, each brings

* The research for this chapter was funded by the Social Science and Humanities Research

Council (SSHRC) of Canada.

1 Paris Agreement, 22 April 2016, UNTS art 2 (entered into force 4 November 2016).

2 In the course of the 2019 election campaign, the current federal government commit-

ted to a target of net zero emissions by 2050 and has signalled a review of its 2030 tar-

get of reducing emissions to 30 percent below 2005 levels; see “A Net-Zero Emissions

Future,” online: Liberal Party of Canada www2.liberal.ca/our-platform/a-net-zero-

emissions-future.

      278

unique challenges. The focus of this chapter is on the mitigation ele-

ment, which includes GHG emissions as well as impacts on natural

sinks such as forests, soils, grasslands, and oceans. Adaptation, although

equally important, has a more established role in assessment processes

and is not considered here.

Many countries are in the process of making decisions about major

energy, transportation, and building infrastructure that are expected to

serve them for decades to come. Bad decisions can lead to emissions

being locked in for many decades or to stranded assets in the billions

of dollars for project proponents and diculties for the individuals,

communities, and economies that become dependent on these activ-

ities. Furthermore, making major changes in direction aer projects

are approved risks exposing countries that have entered into investor

protection agreements to challenges by foreign investors aected

by post-approval policy decisions that might impact the viability of

approved projects.3 Clearly, the stakes are high.

GHG emissions are unlike other adverse environmental impacts

traditionally assessed and a challenge to incorporate into exist-

ing IA methodologies and processes. This is due in part to three key

characteristics:

1) The eects of releasing GHG emissions are felt globally, with

regional variations in the nature and scale of the eects.

2) The eects are delayed.

3) The emissions and eects on sinks are cumulative, with the result

that a given eect cannot be traced back to a specic project beyond

the increase in GHG concentrations in the atmosphere.

The resulting dilemma is that the climate impacts of proposed projects

are distributed globally and over time, including to future generations,

whereas the benets of projects tend to be more local and immediate. It

is perhaps understandable that before the entry into force of the Paris

Agreement, IA practitioners and project decision makers sometimes

preferred to ignore climate change altogether or summarily dismissed

3 See, for example, Clayton and Bilcon of Delaware Inc v Government of Canada(April

2008),PCA Case No 2009-04,17 March 2015; AbitibiBowater Inc v Government of Can-

ada (15December 2010), ICSID Case No UNCT/10/1. Although they don’t deal directly

with a change in regulatory condition following environmental assessment approval,

they both serve to illustrate the risk.