How to navigate through Kyoto's rocky shoals

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Time Out
Feb 12, 2007
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Oshawa
February 26, 2007
Jutta Brunnée

Depending on what you read or hear, it is possible or impossible for Canada to meet its Kyoto commitment and sane or insane to even try. Now that the political spin machines are in overdrive, Canadians can be forgiven for being increasingly confused.
But there are some fixed points that we can hold onto in feeling our way through the Kyoto hall of mirrors.

Kyoto does not require Canada to achieve its targets by emission reductions alone.

Using Kyoto's emissions trading mechanisms does not mean buying "hot air." Through the Clean Development Mechanism, Canada can acquire certified emission reductions from projects in developing countries.
States' reliance on Kyoto's trading mechanisms must be "supplemental" to domestic efforts, to prevent parties from simply buying themselves into compliance. Given our preference for "made-in-Canada" solutions and the urgent need to adjust our economy to the inevitably "carbon-constrained" future, this requirement is in our interest. And, legally, to comply with Kyoto, Canada must make a credible, good-faith effort at home; only then can international credits be supplemental.

If it is indeed impossible, or prohibitively expensive, to meet our commitment, there is still another safety valve built into the Kyoto system. In 2012, Canada's emission performance will be assessed by an international compliance body. As one of the non-compliance consequences, Canada's excess emissions would be deducted from future emission allowances. Effectively, some of Canada's commitment would be postponed, albeit at the cost of a non-compliance finding and at an "interest rate" of 30 per cent. Needless to say, the closer we come to meeting the commitment the better.

We cannot but lose if we maintain the current "we can't, we won't, and we won't even try" approach to our commitment. Legally, this is tantamount to showing such egregiously bad faith that a compliance body would be hard pressed to show sympathy for our situation. Politically, this dismissive attitude damages Canada's international standing and cheapens our currency when we demand that others meet their commitments, environmental or otherwise. We also undercut the competitive and technological edge that we need to meet the climatic and economic challenges we face.

If the government is convinced our Kyoto targets cannot be met and it is not in our interest to make even a good-faith effort, then it should withdraw Canada from the treaty.
Withdrawing would be a dramatic step. It would expose Canada to some of the same international outrage the U.S. faced when it abandoned Kyoto. It would also remove Canada from the circle of parties entitled to shape negotiations on future Kyoto commitments.
So, in many ways, withdrawing is not an option.

Neither is the current approach. We cannot have it both ways. Worse, the message to the world has been that Canada considers treaty commitments to be discretionary, and that its word is not worth much.
Obviously, it would have been better if the previous and current governments had not waited until the 11th hour to deal with its Kyoto commitments. But of all the bad choices we are now left with, changing our Kyoto approach to "we think it may be impossible, but we'll try our very best" has more upsides than any of the other choices.
That also seems to be the conclusion that the Harper government is coming around to. If it took the much maligned Bill C-288 to prompt this change of tune, so be it.
Canadians will form their own opinions on the best Kyoto strategy for our country. But they should consider the full picture, not just the fragments that the current debates choose to reveal. And there is one more uncomfortable truth lurking in that Kyoto hall of mirrors.
Whichever mirror we choose, we cannot avoid staring at the problem: Ourselves. It is high time we stop closing our eyes or pointing the finger at someone else. Let's stop talking about what we can't do and start doing what we can – all of us.

Jutta Brunnée is professor of law and Metcalf Chair in Environmental Law at the Faculty of Law, University of Toronto.
http://www.thestar.com/printArticle/185197