Varcoe: ‘Globally unprecedented’ – From farmers and stock exchanges to oilpatch, concerns mount over Ottawa’s anti-greenwashing rules

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What are your key concerns about the incoming oil and gas emissions cap?

It seemed like a straightforward question posed to an oil and gas industry group executive last week.

“Unfortunately, under the new C-59 legislation, I’m not permitted to express the specific concerns,” said Tristan Goodman, head of the Explorers and Producers Association of Canada.

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“I can say we oppose it. I can’t talk about anything associated with why.”

Bill C-59 is legislation passed this summer by the federal government that includes amendments to the federal Competition Act, designed to prevent greenwashing and require businesses to substantiate certain environmental claims.

It says companies can’t represent the benefits of their activity to protect or mitigate the environmental effects of climate change, if it’s “not based on adequate and proper substantiation, in accordance with internationally recognized methodology.”

However, the as-yet undefined methodology, the size of the potential penalties and the burden of proof being put on companies have ignited a pushback from the Alberta government, companies and industries across Canada.

The Alberta government has said the changes “constitute a threat” to Canadian businesses and the country’s competitiveness.

In July, the Competition Bureau launched public consultations to help its development of enforcement guidance surrounding environmental claims.

An examination of dozens of more than 200 submissions made to the bureau this fall — and posted online this week — underscore the concerns rolling in from various corners.

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It includes submissions from organizations such as Fertilizer Canada, the City of Calgary’s Enmax Corp., the Canadian Federation of Agriculture, the Canadian Aquaculture Industry Alliance, the TMX Group, the Railway Association of Canada, and a number of energy producers and groups.

“Only the most naive would believe these amendments were not aimed squarely at silencing Canada’s energy industry,” Karen Ogen, CEO of the First Nations LNG Alliance, wrote in the group’s submission.

The Canadian Chamber of Commerce states the new provisions “go far beyond what we consider a reasonable approach,” and its punitive penalties create “a significant risk of ‘greenhushing,’ where environmentally beneficial initiatives may be stifled due to heightened compliance risks and uncertainty.”

“The vague and authoritarian nature of the amendments are not reflective of the democratic and equitable principles that are key to the proper functioning of Canada,” said a submission from Athabasca Oil Corp.

“In particular, these amendments will effectively muzzle the energy industry.”

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After the rules came out, the Pathways Alliance group of oilsands producers and several petroleum producers pulled environmental information from their websites, citing the unclear nature of the rules.

Those backing the legislation say it’s meant to protect consumers and Canadians from false assertions in any sector.

“This does not mean businesses cannot tout their progress on sustainability, but they should be honest and truthful claims,” states a submission by Greenpeace Canada.

“Businesses that may be subject to the new laws may pose them as a threat to free speech or even a direct violation of free speech. In our view, this issue may be used as a delay tactic to avoid enforcement of the provisions and to question the legitimacy of them.”

Greenpeace’s Keith Stewart noted the bureau’s detailed rules are still being developed, which is why the consultation is taking place.

The online submissions highlight the deep concerns of many businesses, investors and industry organizations, that this will lead to less discussion about critical issues, such as how companies decarbonize.

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“Our ability to remain transparent has been significantly compromised,” due to the changes to the act, states a submission from Suncor Energy.

The language about being able to substantiate claims about sustainability to align with internationally recognized methodologies “is vague, overreaching and globally unprecedented.”

However, a submission by Ecojustice and the Canadian Association of Physicians for the Environment called on the bureau’s guidance to specify certain commercial practices are regarded as deceptive marketing, without the need for a case-by-case assessment.

This would include “using ‘green’ imagery, such as clear blue skies, lush forests or other robust ecosystems as a way to strategically appropriate nature and environmental values in order to strengthen green messaging,” their submission stated.

It also calls for the bureau’s guidance to strictly limit fossil fuel advertising.

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Several business groups called for a delay in the provisions being enforced. Others said they’re worried about how the rules might conflict with existing regulatory filing requirements to disclose information to governments or regulators.

“The reality is that the new provisions impact and create risk for virtually every sector of the Canadian economy,” says a letter submitted by the Canada West Foundation and signed by 11 different organizations.

Meanwhile, investor groups and businesses worry the new provisions will prevent companies from setting future goals to reduce emissions or reach environmental targets.

“Companies should be encouraged to make and maintain net-zero commitments, even if the way to achieve those commitments depends on technology that is not fully developed yet,” Enmax states in its letter.

“The new provisions add uncertainty where clarity is needed, undoing progress that has been made in the area of environmental disclosure,” said the TMX Group, which operates the Toronto Stock Exchange.

The federal government flatly rejects the notion it’s trying to silence the energy industry as it also moves ahead with policies such as the oil and gas emissions cap, pointing out all sectors must live up to the anti-greenwashing standards.

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“It’s simple: If the oil and gas sector makes a claim about the work they are doing, such as advertising campaigns promoting large-scale carbon capture projects, they need to be backed up by the facts,” said Audrey Milette, press secretary to Industry Minister Francois-Philippe Champagne.

A Competition Bureau spokesperson said Friday that it’s reviewing the submissions and aims to finalize the new guidelines within the next few months.

But the landscape has clearly shifted with the new amendments, according to business leaders.

“What has changed? A lot,” Pathways Alliance president Kendall Dilling said in a statement.

“Although our work in environmental innovation hasn’t stopped, the changes to the act have constrained our ability to communicate about them.”

Chris Varcoe is a Calgary Herald columnist.

cvarcoe@postmedia.com

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