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Putting Canada’s “dirty diplomacy” on the agenda in France

You might have seen from media releases and other online updates that I’m in Europe this week, part of a coordinated effort by the Council of Canadians, Climate Action Network – Canada and The Indigenous Environmental Network to undo the damage the Canadian government has done to a European climate measure with broad public and political support. Our campaign in support of the EU Fuel Quality Directive, which attempts to lower the carbon content (GHG emissions) in transportation fuels by, in part, discouraging the use of highly polluting fuels derived from tar sands, went into high gear earlier this year during an embassy tour in Ottawa. Following an undecided vote in Europe on the future of the measure this February (read about that here), we’re taking our message directly to decision- and policy-makers in France, Holland, the UK and Germany.

Harper government lobbying against the Fuel Quality directive has been relentless, obsessive and completely misleading, as Energy and Climate Campaigner Andrea Harden-Donahue has explained in a number of reports over the past several months. It’s based entirely on false claims that the policy discriminates against Canadian oil and is not based on sound science. I know, I know — Harper government and science-based policy are mutually exclusive ideas. In this case, seven years’ worth of European research on measuring GHG emissions from various transportation fuel feedstocks apparently doesn’t cut the mustard for the government that would eliminate the long-form census, fire its environmental scientists, move to undermine monitoring of fisheries, etc, etc.

Yesterday we–Hannah McKinnon of CAN-Canada, Ben Powless of IEN, Steven Guilbeaut of Equiterre and myself–met an advisor to the presidential campaign of Socialist François Hollande, several climate policy directors with the foreign affairs ministry, and ended the day at the French Senate. Many of these people were openly disappointed with the Canadian government’s climate let-downs of late at the COP international climate conferences. The name Total (French energy firm with large investments in the tar sands) came up again and again as the probable reason France abstained during the February FQD vote, and most agreed the presidential and subsequent parliamentary elections will have an impact on how France votes when the issue comes up again, likely June 23.

Like Andrea did during the embassy tour, I’ve been talking about why European policy makers can safely ignore Canada’s trade threats on the fuel quality measure but that more could be done to protect it from trade or investment disputes in the potential Canada-EU Comprehensive Economic and Trade Agreement.

Canada now openly threatens to take the policy to the WTO if it goes through with a default value for tar sands that is higher than conventional crude. Harper would have a very weak case, according to a legal opinion by Defense Terre. Canadian trade lawyer Lawrence Herman thinks otherwise and publicly volunteered to help the government the challenge the FQD if it comes to that.

“Can the EU apply differential border measures – such as carbon offsets – on fuel from Canada that is produced from bitumen but is ‘like’ conventional fuels in terms of physical and chemical properties, end-usage and, importantly, that competes in the same market?” he asked in a recent Globe and Mail column. “Canada says definitely not. Admittedly, each case must be looked at on its facts, but WTO jurisprudence leads to the conclusion that Canada is right.”

Defense Terre doubts Canada would win the “like product” argument since the point of differentiation (between the emissions produced in tar sands versus conventional oil production) in the FQD happens further upstream, at the feedstock level. Also, both the oil industry and global lists of tariff classifications differentiate between bituminous oil, shale and tar sands and conventional oil, and there is a growing case that European tastes are turning against the tar sands, which a WTO could factor into a decision on whether they were “like” regular oil products.

The EU could also fairly easily counter Canadian claims the fuel quality measure discriminates against Canadian oil since it would apply equally to Venezuelan, Russian or even (someday) European tar sands or other unconventional fuels. In other words, the policy doesn’t block Canadian imports of tar sands in the favour of domestic production or other imports. Finally, if the WTO dispute panel did want to find against the FQD, the EU has a very strong case that the measure is a justified means of conserving an exhaustible natural resource — in this case the natural climate system, which is compromised by our very large and growing greenhouse gas emissions.

On CETA, I’ve been raising arguments made by international trade lawyer Steven Shrybman in his opinion for the Council of Canadians, IEN and Friends of the Earth Europe on the potential impact of the bilateral trade agreement on climate measures and tar sands regulation. Shrybman cautions that Canada is trying to water down or eliminate efforts by the EU to try to exempt climate measures like the FQD from market access rules that experience shows privilege investment and trade over other societal ambitions, including making sure there is a world worth trading and investing (and breathing) in.

He writes:

In certain respects the respective positions of the Parties regarding measures that may impact oil sands production and trade reflect their very different positions on whether the goals of the Kyoto Protocol can and should be met. As we know, Canada has repudiated its commitments to reduce greenhouse gas emissions and has proposed CETA rules that would preclude EU energy measures that would take into account Canada’s failure to honour its international environmental obligations.

Though trade and now investment policy are the jurisdiction of the European Union, EU member states can exert pressure on the negotiations through the Council and they will eventually have to vote on CETA since, like in Canada, it involves policies that the member states (and provinces) are in charge of. I will be encouraging politicians and policy makers on this trip to consider ways to exempt the FQD from the CETA since it’s doubtful Canada will agree to much of the EU’s suggested wording on climate and other environmental policy.

Just like Andrea has been doing, I’m also talking about the threats of an investor-state dispute process in CETA to much of the same measures. Both Steven Shrybman and Scott Sinclair have explained the risks in recent reports which I won’t go into here but may later.

Today we have meetings in The Hague minus Steven Guilbeaut, who is presenting at a conference in Geneva this week, then tomorrow we are in London where we’ll be joined by Dene Nation Chief Bill Erasmus. More on the other messages we’re bringing to Europe in the next few days. Stay tuned…