BC’s Climate Plan and TILMA

Here’e a piece that I wrote with Caelie Frampton, the Campaign Coordinator of the STOP TILMA Coalition. No pick-up in the major dailies but The Tyee has promised to run it at some point:

TILMA a Major Hurdle to BC Climate Action Plans

By Marc Lee and Caelie Frampton

Premier Gordon Campbell has positioned BC as a global leader on climate change. From handshakes with Al Gore and Arnold Schwarzenegger to an ambitious plan for reducing greenhouse gas emissions by one-third by 2020, his enthusiasm for fighting climate change is laudable.

However, the Premier’s interest in harmonizing provincial standards through the BC-Alberta Trade, Investment and Labour Mobility Agreement (TILMA) could prove to be a thorn in the government’s side, undermining its ability to take necessary measures on the climate change file.

The basic problem is this: fighting climate change will necessarily involve a lot of regulation, while TILMA is fundamentally a deregulatory initiative.

As the Legislative Assembly reconvenes, it is essential that our legislators debate TILMA’s sweeping implications for BC’s environmental strategy. Unfortunately, this deal was implemented in April 2007 without any consultation or public debate. When the Agreement comes into full effect in 2009, it will cover decisions made by all levels of government, including municipalities and school boards.

Legislators should first consider what benefits might emerge from TILMA. We often hear that trade and investment barriers are a major problem in Canada that are undercutting our competitiveness.

This is nonsense. Few examples of trade impediments are ever offered by supporters of TILMA. There is no evidence that any Alberta company has been stopped from doing business at the BC border, or that they have been discriminated against by provincial or municipal governments in BC.

Because of the federal nature of government in Canada, provinces have the right to make laws and regulations that protect the public interest and the environment. This means that trucking standards are more rigorous in mountainous BC than in flat Saskatchewan – this is common sense, not a restriction on trade. In many other areas provinces make regulatory decisions based on what makes the most sense in the local context.

What TILMA really does is to create and codify investor rights, and provides a mechanism for private enforcement. This has huge consequences for public interest regulation in BC, as TILMA’s private dispute panels can award up to $5 million to an Alberta investor if a decision made by a BC government body “restricts or impairs” their investment.

Almost every environmental regulation restricts or impairs someone’s investment. A bold restructuring of BC into a carbon-neutral economy will almost certainly affect the profits of Alberta’s oil patch.

In practice, we can expect TILMA to cast a chill over decision-making at the Cabinet table. Already, for example, it has been reported that the BC Cabinet, in seeking to eliminate junk food from schools, resorted to seeking voluntary agreements with vending machine companies, rather than simply legislating them away.

This is bad news for the government’s climate action strategy. There is still much detail to come on exactly how BC will meet its greenhouse gas emissions targets. But regulation will necessarily be part of a meaningful strategy.

TILMA does provide an exemption for promoting renewable and alternative energy. This is helpful but falls far short of what will be required. More contentious policies that impose costs on manufacturers, such as automotive tailpipe emission requirements or mandated use of carbon capture and storage, could easily be open to challenge.

In these cases, the government would have to prove that these were legitimate measures to protect the environment and that they were not “more restrictive than necessary” – a clause that will give Alberta investors plenty of wiggle room for legal challenges.

In the end, kangaroo courts, composed of corporate trade lawyers not judges, outside the domestic legal system will have an opportunity to second-guess democratic decision-making. Policy-makers will have to strain to make a complicated climate action plan fit within the narrow legal gaps allowed by TILMA.

Municipalities are already frustrated with the Agreement, and after consulting their lawyers, voted at the Union of British Columbia Municipalities convention to reject TILMA. Municipal leaders across BC understand that TILMA could greatly affect their ability to make decisions that benefit their communities.

Actions to fight climate change at the municipal level are particularly important as we move ahead to the 2020 target. Right now, TILMA is a barrier to achieving our environmental goals, and should be scrapped.