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Canada’s first major battle on the place of greenhouse gases in environmental assessment continued this week, with a major defeat for Imperial Oil.

As described in our April post, earlier this year, the Federal Court rejected Imperial’s CEAA Environmental Assessment of its huge Kearl oil sands mine, because it had not evaluated the environmental impact of the mine’s contribution to climate change. Immediately afterwards, the Department of Fisheries and Oceans revoked Imperial’s Fisheries Act permit to destroy a body of water. This brings construction (already underway) to a halt. Imperial sought an injunction, to prevent DFO from revoking the permit.

On May 14, they lost again. Imperial Oil Resources Ventures Limited v. Minister of Fisheries and Oceans et al) was a consolidated judicial review: Imperial Oil sought an injunction to halt implementation of the opinion of theMinister of Fisheries and Oceans, and the Pembina Institute and Sierra Club of Canada had commenced an action against both Imperial Oil and the Minister to quash the permit.

Mr. Justice Douglas Campbell agreed with the Pembina Institute that the Fisheries permit had been issued without jurisdiction. Without a meaningful evaluation of greenhouse gases, the EA was incomplete. Only once the EA has been completed, can it proceed for approval by the Governor in Council; only then could the DFO issue a valid permit. Imperial may seek leave to appeal further, but is concentrating its efforts on attempting to complete the EA. Stay tuned – this case is far from over.

Perhaps Canada is starting to match the US pattern. There, litigation is driving climate change policy, against the wishes of the federal government.

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