The following paper, written by associate Matthew DiBerardino, focusses on the environmental impacts of the construction industry, which is one of the largest contributors of global GHG emissions. To effectively address climate change, the author proposes amendments to existing relevant provincial legislation, taking Ontario as an example, to require municipalities to develop and implement green construction initiatives. The author suggests changes to the permitting processes undertaken by municipalities to control and monitor compliance with green construction programs and to public procurement policies by implementing a contractor performance rating system based on green construction metrics. Initiatives by Toronto and Vancouver are discussed as examples of municipal green building programs aimed at reducing carbon emissions.
1.0 Introduction
Time is up. Climate change is real and “it poses a grave threat to humanity’s future.”[1] This paper will review the threats facing the Earth’s ecosystems as a result of climate change, consider the ways in which the Canadian construction industry contributes to global greenhouse gas (“GHG”) emissions, and suggests that legislative reform plays an important role in the solution. Since “[t]he only way to address the threat of climate change is to reduce greenhouse gas emissions”,[2] the ways in which buildings and infrastructure are constructed and operate need to change. The way in which we mandate change needs to be flexible enough to permit nimble adaptation to constantly evolving political, economic and technological developments. In order to mitigate the irreversible negative effects of climate change, green construction requirements for both buildings and infrastructure should be mandated at the provincial level through amendments to the legislation which endows municipalities with power. Such legislative amendments should require that all Canadian municipalities develop and implement green construction programs that effect severe reductions in both embodied (or upfront) and operational carbon emissions.
2.0 The Problem
2.1 Overarching Problem
In order to mitigate irreversible damage to the Earth’s ecosystems caused by climate change, GHG emissions must stop. Many contemporary climate change mitigation initiatives, including Bill Gates’ inspiring call to action,[3] are based on the IPCC’s 2018 Special Report: Global Warming of 1.5oC.[4] The report includes a summary for policy makers that warns of the increased risk of irreversible damage to the Earth’s ecosystems if climate change is not limited to an increase of 1.5oC per year.[5] As the Earth continues to follow a steady upward trend of annual climate increase, limiting annual warming to 1.5oC requires global CO2 emissions to reach net zero by 2050.[6] If annual climate warming is consistently 2oC or greater per year, there is a severely increased risk of irreversible damage to the environment.[7]
Perhaps one of the most prominent factors impeding the progress of global action on climate change is what Bill Gates has deemed the “green premium”.[8] The green premium is “the difference in cost between a product or process that doesn’t emit carbon with one that does.”[9] The green premiums for alternatives to many prominent conventional building products, such as concrete, steel and plastic, are currently prohibitive to widespread implementation. [10] In order to reduce green premiums to levels economically permissive to the elimination of GHG emissions, Gates calls for, inter alia, increased governmental spending and tax credits for green energy innovation.[11] As will be explored herein, the construction industry is a large contributor of GHG emissions and is ripe for innovation and regulatory reform.
2.2 Construction-specific Emissions
According to the World Green Building Council’s Global Status Report 2017, “[b]uildings and construction together account for […] 39% of energy-related carbon dioxide (CO2) emissions when upstream power generation is included.”[12] The construction industry produces GHG emissions in two main ways: (1) embodied carbon emissions (i.e., the emissions from construction processes and material manufacturing), and (2) operational emissions (i.e., the trailing emissions that result from the use of the final product).[13] Embodied emissions from construction account for approximately 11% of global carbon emissions, while operational emissions account for approximately 28%.[14] It is projected that global carbon emissions from construction will continue to increase as a result of, inter alia, population growth and the appurtenant demand for buildings and infrastructure, and the manufacturing carbon costs associated with meeting the increased demand for construction materials.[15] The World Green Building Council estimates that “new construction is expected to double [global] building stock by 2060 causing an increase in the carbon emissions occurring right now.”[16] Consequently, the “time value of carbon” dictates that it is more cost efficient to mitigate climate change now, rather than pay to adapt to its effects later.[17] Eliminating GHG emissions from the construction industry in toto requires “coordinated action from across the sector to dramatically change the way buildings are designed, built, used and deconstructed.”[18]
2.2.1 Embodied Carbon Emissions
The largest contributors of embodied carbon emissions in building construction are superstructure elements which contain large volumes of “carbon intensive load bearing structural materials such as steel, concrete and masonry.”[19] Infrastructure mirrors this trend as the construction of bridges, highways, and linear infrastructure require large volumes of concrete, asphalt, steel, aggregates, plastic, aluminum, timber and other carbon intensive products. Cement and steel manufacturing associated with construction account for approximately 7% of total global carbon emissions.[20] In Ontario, examples of major industrial carbon emitters include steel and other manufacturing operations in Hamilton (55% of regional emissions), the St. Marys Cement Plant in Bowmanville (24% of regional emissions), and the CRH Canada Cement Plant in Mississauga (9% of regional emissions).[21] Contemporary manufacturing processes for steel and cement, which is the primary binding agent in concrete, “require very high temperatures…making them energy intensive and, in both cases, the chemical reactions that take place during manufacturing also release carbon dioxide directly.”[22] Globally, much of the energy used to produce the heat required to manufacture cement and steel is generated from the burning of fossil fuels.[23] With global cement and steel consumption projected to increase by 12% and 30% by 2050, respectively, “embodied carbon will continue to grow in importance as a proportion of total emissions [and] we must now rapidly increase efforts to tackle embodied carbon emissions at a global scale”.[24] Additionally, timber is used across the construction industry in both permanent and temporary installations (e.g., building trusses and joists, concrete formwork, temporary excavation shoring). An increased demand for lumber contributes to deforestation which “is still a major source of global carbon emissions”.[25] Summarily, a majority of the embodied carbon emissions from construction are a result of the manufacturing of construction materials, with the remainder coming from the construction process itself.
2.2.2 Operational Carbon Emissions
Other than the industrial-centric City of Hamilton, “[b]uildings (which use natural gas for space and water heating and electricity) and transportation (which use gasoline and diesel) are the largest emitting sectors in every municipality in the GTHA”.[26] The operational carbon emissions from buildings are almost entirely attributable to the burning of natural gas for space and water heating.[27] The remainder is primarily comprised of the GHG emissions produced from the burning of natural gas to produce electricity for building operations.[28] The use of natural gas for heat, including the related distribution infrastructure, is so deeply entrenched in Canadian society that it is difficult to perceive its eradication. However, as the generation, distribution, and storage of renewable electricity becomes increasingly technologically feasible and economical, an incremental reduction in the use of natural gas to heat and power buildings should follow. Reaching net zero operational emissions requires “systems change across all sectors, from retrofitting…homes and commercial buildings, to electrifying vehicles, to phasing out natural gas (also known as fossil gas).”[29]
3.0 The Solution
As a result of the urgent need to eliminate GHG emissions, Canada’s federal government has committed under the Paris Agreement on Climate Change “to achieve by 2030 a 30 percent reduction in GHG emissions relative to the 2005 baseline.”[30] Additionally, in November 2020 the Canadian government expressed its goal to achieve net zero GHG emissions by 2050 through the introduction of Bill C-12, Canadian Net-Zero Emissions Accountability Act.[31] To operationalize this goal within the construction industry, in furtherance of achieving the global goal of limiting annual climate warming to 1.5oC, green construction initiatives should be implemented at the provincial level and downloaded to municipalities through amendments to the empowering legislation (e.g. Ontario’s Municipal Act, 2001).[32] At a minimum, the provincial programs should be required to meet or exceed the federal government’s commitments to GHG reductions.
3.1 Overview of the Legislative Framework
In order to minimize both the administrative and legislative impacts of the proposed imposition of provincial green construction mandates, the requisite legislative amendments should be carried out in light of the existing relevant provincial legislation. The relevant Ontario legislation is reviewed herein.
3.1.1 Buildings
In Ontario, the contemporary legislative regime gives municipalities limited power to mandate green construction requirements through by-law. Subsection 97.1(1) of the Municipal Act provides that a local municipality may “pass a by-law respecting the protection or conservation of the environment that requires buildings to be constructed in accordance with provisions of the building code under the Building Code Act, 1992”.[33] Subsection 35(1) of the Building Code Act, 1992 clarifies the Building Code’s paramountcy in providing that “[t]his Act and the building code supersede all municipal by-laws respecting the construction or demolition of buildings.”[34] Subsection 97.1(2) of the Municipal Act confirms this paramountcy in providing that “[d]espite section 35 of the Building Code Act, 1992, if there is a conflict between that Act or the building code under that Act and a by-law to which this section applies, that Act or the building code prevails.”[35] Summarily, municipalities may implement green construction initiatives that enhance, but do not conflict with, the requirements of the Building Code Act and the Building Code.[36]
One of the stated objectives of the Building Code is “to limit the probability that, as a result of the design, construction or operation of a building, the natural environment will be exposed to an unacceptable risk of degradation.”[37] Subsection 10(2) of the Municipal Act provides that single-tier municipalities may pass by-laws respecting the “environmental well-being of the municipality, including respecting climate change.” [38] However, the time has passed for regimes that are merely permissive to voluntary green construction initiatives (e.g., the Canada Green Building Council’s LEED Certification).[39] Mandating net zero building GHG emissions by 2050 at the provincial level, and ensuring that the Building Code is adaptable to emerging green technological developments, also dovetails with the municipal power to enact by-laws regarding long-term energy planning under the Municipal Act.[40] In short, the current provincial building requirements do not mandate the degree of GHG emission reductions required to attain net zero GHG emissions by 2050.
3.1.2 Public Infrastructure
Generally, the municipality which has jurisdiction over a specific highway, or other public infrastructure asset, has the power to provide the relevant specifications and standards for its design, construction, use and maintenance.[41] The province of Ontario, through its Ministry of Transportation, develops specifications and standards for the design, construction, use and maintenance of provincial highways (see e.g., OPSS/OPSD). [42] It is common for municipalities to reference, incorporate or emulate such provincial standards within their municipal infrastructure specifications. Additionally, municipalities with the requisite jurisdiction under the Municipal Act have the power to establish, operate and maintain public passenger transportation systems.[43] Mandating, at the provincial level, that municipalities implement green construction initiatives for the construction and operation of their highways, utilities, and passenger transportation systems, will ensure municipal buy-in towards achieving the ultimate goal of net zero GHG emissions by 2050. Ontario’s current laissez-faire approach to green construction initiatives seems to be an increasingly irresponsible policy as “[m]ost Canadian Governments have not assessed and, therefore do not fully understand what risks they face and what actions they should take to adapt to a changing climate.”[44]
3.1.3 The Mechanics of the Proposed Legislative Amendments
The provinces have the requisite legislative power to require municipalities to develop and implement green construction initiatives. Section 92 of the Constitution Act, 1867[45] provides that each provincial legislature may make laws in relation to municipal institutions, local works and undertakings, and property and civil rights. As reviewed in the preceding section, the Government of Ontario delegates power to its municipalities through, inter alia, the Municipal Act and the City of Toronto Act. Generally, a municipality’s by-laws only apply within its geographic boundaries.[46] By-laws must be enacted in accordance with the powers and processes provided within the empowering statute and are without force or effect where they conflict with a provincial or federal statute, regulation, or legislative instrument.[47] Accordingly, municipalities “are a product of provincial statutes [and] are limited to those powers granted to them through legislation enacted by the province and, therefore, remain creatures of provincial legislation.”[48] The provinces are permitted to make legislative amendments that affect municipal institutions without municipal consent.[49] Summarily, the mechanics of Ontario’s legislative regime are amenable to the implementation of green construction mandates that impose both positive and negative obligations on municipalities.
3.2 Proposed Green Construction Initiatives
One way to impose green construction requirements would be to require, through amendments to the pertinent provincial legislation, that municipalities develop and implement their own green construction programs for both buildings and infrastructure. This method of legislation would require that municipalities meet the overarching goal of achieving net zero GHG emissions by 2050 and, as a result, would likely necessitate amendments to each province’s building standards regulation so as to be amenable to green technological developments.[50] A provincial model green construction program should be developed and provided to municipalities to be adopted or used as a starting point in developing their own program. Setting a strict goal of net zero GHG emissions by 2050, while guiding municipalities to develop their own green construction programs, is seemingly more efficient than developing and implementing a comprehensive green construction regime through amendments to provincial building codes (i.e., set standards, not rules).[51] Such an approach would allow municipalities to develop their green construction programs in the context of their specific geographic, economic and social circumstances. This approach also affords municipalities the flexibility to nimbly adapt their green construction requirements without provincial interruption or delay. Additionally, this approach may increase the likelihood of municipal buy-in as municipalities become invested in achieving the overarching goal of net zero GHG emissions. [52] Implementing such a policy would allow municipalities to take the “vital first step […] to develop detailed roadmaps for complete decarbonisation of both embodied and operational carbon by 2050.”[53]
3.2.1 A Collaborative Approach
Achieving net zero for both embodied and operational GHG emissions in the Canadian construction industry will require collaboration between all levels of government and industry stakeholders.[54] A collaborative approach furthers the provincial consultation principle expressed under subsection 3(1) of the Municipal Act which promotes “ongoing consultation between the Province and municipalities in relation to matters of mutual interest”. [55] While the responsibility for the development and implementation of green construction programs should be borne by municipalities, the “provincial governments have a key role to play in supporting cities to scale up effective low-carbon efforts.” [56] In support of mandated municipal green construction initiatives, the provincial governments should develop a model green construction program and undertake to “set standards and targets, implement legislation on materials and planning policies, invest in research and development, and to deploy financial and fiscal measures that can shift the market.” [57] Governmental support of this nature would not be without precedent, as the federal government has already begun investing in municipal construction GHG emission reductions through the Low Carbon Cities Canada network.[58]
An adaptive standard setting approach to legislation also realizes the value of collaboration with private industry stakeholders since “[h]aving new partners at the table from the community or other relevant areas can lead to new ideas and opportunities.”[59] In developing green construction programs, municipalities would likely look to private industry actors for consultation and assistance. The shift away from conventional building materials and methodologies will necessitate constant and open communication between the public and private sectors. Bridging the gaps between different sectors and departments is the only way to “build a strategy that represents the broader community and spectrum of needs and issues they face – a strategy that results in more durable change.”[60]
3.2.2 Permitting and Procurement
With respect to private developments, municipalities could use the permitting process to control and monitor compliance with its green construction programs. Plans examiners would review permit application drawing sets and other documents to ensure compliance with their municipality’s program and building inspectors would verify that the developments are built in accordance with the permit plans and the Building Code. However, for such a process to be most effective, the permit requirements should be immediately measurable and objective (e.g., all exterior windows shall have a U-Factor of equal to or less than “X”), as opposed to referring to future performance metrics (e.g., monthly heat loss from the building envelope from September through April shall be limited to “Y”).
As a corollary to imposing obligations on private parties, a municipality could also lead by example through its procurement policies. At minimum, tender or proposal calls should only be issued for construction projects that will meet or exceed the requirements of the municipality’s green construction program. Additionally, municipalities could implement a prequalification system, or a contractor performance rating system based on green construction metrics that would be used to inform procurement decisions. Permitting and procurement appear to be two primary areas where the “rubber would hit the road” for a municipality’s green construction program.
3.2.3 Existing Municipal Initiatives
Toronto and Vancouver, two of Canada’s largest population centres, have seemingly taken the lead on municipal green construction initiatives. Their contemporary programs may provide valuable precedent for other Canadian municipalities.
3.2.3.1 City of Toronto
The City of Toronto first mandated compliance with its Toronto Green Standard (“TGS”) building requirements in 2010.[61] The TGS initiative was enhanced in 2017 through the development and adoption of the City of Toronto’s Zero Emissions Building Framework (“ZEB”).[62] Under the ZEB, all large buildings in Toronto that are newly constructed, or that undergo major renovations, will be required to be near net zero GHG emissions by 2030.[63] Additionally, “[o]n October 2, 2019 City Council voted unanimously to declare a climate emergency and accelerate efforts to mitigate and adapt to climate change, adopting a stronger emissions reduction target of net zero by 2050 or sooner.” [64]
Together, Toronto’s TGS and ZEB initiatives are comprised of zero emissions performance-based targets, prescriptions, and administrative requirements intended to ensure that buildings are constructed and renovated with the 2030 near zero goal at the fore.[65] The performance-based target component of the initiatives sets specific energy performance targets for buildings and allows “building owners and regulators to compare actual performance with designed performance, and to compare performance between buildings.” [66] The three performance-based target metrics for buildings under the ZEB are thermal energy demand intensity, total energy use intensity, and GHG emission intensity. [67]
The prescriptive components of the initiatives “provide itemized lists of building design requirements for mechanical, electrical, and envelope systems that impact building energy use.”[68] The primary discrete prescriptive requirements under the initiatives include: mandating the installation of renewable energy generation devices and appurtenant submeters,[69] mandating that buildings are solar and district energy ready,[70] requiring air tightness testing,[71] implementing a building commissioning process which verifies the designed energy performance-based targets, [72] and mandating that building owners track and disclose building energy performance. [73] These prescriptions are intended to be limited to those which are absolutely necessary to support achievement of the performance-based targets established for newly constructed and renovated large buildings. The two main administrative requirements imposed on the city are the provision and maintenance of updated energy modelling guidelines, and the creation and provision of a climate change resilience checklist.[74] Practically, this means that the City of Toronto will provide guidelines on how to prepare appropriate Building Information Modeling (“BIM”) models for the enforceable performance-based metrics, and a checklist for building owners that contains pertinent items to consider when designing buildings for a warming climate.
The intended effects of Toronto’s TGS and ZEB are to “reduce the GHG impact of population growth and densification, replace poorer-performing buildings with high-performance buildings that improve occupant comfort, and build industry capacity in high performance design and construction.”[75] However, Toronto’s goals do not currently include express requirements for smaller buildings (e.g. detached, or semi-detached homes) or infrastructure construction. [76] Accordingly, while Toronto’s approach to green construction is a strong and measured step in the right direction, there are sizeable gaps in the regime that should be addressed at the provincial level.
3.2.3.2 City of Vancouver
Similar to the City of Toronto’s ZEB, the City of Vancouver has committed that all its newly constructed buildings shall be net zero GHG emissions by 2030.[77] Also similar to Toronto’s initiatives, Vancouver’s green construction programs place special importance on the implementation of district energy systems,[78] and energy benchmarking and reporting.[79] The City of Vancouver’s approach to reducing building GHG emissions is similar to Toronto’s, in that they both prescribe “limits on emissions and energy use in new buildings, and will reduce these limits over time.”[80] However, Vancouver’s green construction program differs from Toronto’s as it includes more robust considerations in respect of single family homes,[81] the retrofitting of existing buildings,[82] building deconstruction, [83] construction waste diversion, [84] and infrastructure construction.[85] In November 2020, Vancouver City Council adopted a climate emergency action plan which aims to accelerate reductions in both embodied and operational carbon emissions from buildings. [86] Some of the express accelerated actions that Vancouver has committed to under the action plan are: supporting the transition from natural gas heating to electric heat pumps, mandating the re-use of existing buildings and materials, building from sustainably sourced timber, using lower-carbon concrete mixes, powering construction projects with renewable energy instead of diesel fuel, and reducing minimum parking requirements for new builds.[87] Although the City of Vancouver’s green construction aspirations include and expand on many of the beneficial initiatives implemented by the City of Toronto, their program still fails to comprehensively address infrastructure construction. This shortcoming should be addressed through provincial legislation.
3.2.4 Initiatives to Implement
Should legislative amendments mandating municipal green construction programs come to fruition, the programs implemented by the cities of Toronto and Vancouver set a valuable precedent. Any laggard municipalities who have bemoaned construction GHG emission reduction mandates, should be pushed in the right direction through provincial legislation. The blow should be softened by accompanying financial and technological support. All municipal green construction programs should ultimately mandate that all buildings and infrastructure be constructed to a net zero embodied carbon standard “as part of a whole lifecycle approach to carbon reduction that includes net zero operational carbon”.[88] The “stepped” or “tiered” implementation approach to changing building regulations, as employed by the cities of Toronto and Vancouver, is helpful as it “allows businesses to prepare for upcoming legislation, encourages developing skills ahead of enforcement and creates regulatory and investment certainty, which in turn helps to create a market for low carbon products and approaches.”[89]
Although the case studies of Toronto and Vancouver are helpful, municipalities should remain free to design their programs in a manner that is amenable to their unique circumstances. In developing green construction programs for both buildings and infrastructure, some of the most pertinent discrete initiatives that should be undertaken include: mandating environmental product declaration systems and specifications (e.g. mandating the use of sustainable timber, low-carbon concrete mixes, materials amenable to reuse),[90] mandating the creation and disclosure of environmental impact lifecycle assessments using digital modelling (e.g. using BIM to approximate a building’s embodied and operational carbon footprint),[91] promoting renovation over reconstruction, [92] providing bonusing provisions that incentivize near-term adoption of green construction requirements,[93] eliminating subsidies that increase GHG emissions,[94] prohibiting construction within environmentally sensitive areas,[95] increasing building envelope insulation requirements,[96] and promoting the use of solar and district energy systems.[97] Summarily, “[t]o ensure green standards are effective, they should include performance targets, predictable timelines, and industry input and support.”[98] Although the attainment of net zero GHG emissions is largely dependent on the ability of power generation and distribution networks to transition completely to sustainable renewable energy, Canada’s buildings and public infrastructure should be made ready for that eventuality.[99]
4.0 Conclusion
The Earth’s climate is warming. Notwithstanding the ostensible environmental benefit of the global shutdowns imposed in response to COVID-19, GHG emissions are increasing.[100] However, the negative effects of climate change can be mitigated if annual global climate warming is limited to 1.5oC by 2050.[101] To achieve this goal, GHG emissions must be eliminated by 2050.[102] As one of the largest contributors of global GHG emissions, the construction industry must change. The embodied and operational carbon footprints, arising primarily from construction material manufacturing and the use of natural gas for heat, must be eliminated from Canada’s buildings and infrastructure. The most efficient route to eliminating these sources of GHG emissions is through amending the pertinent provincial legislation to require municipalities to develop and implement green construction programs. These programs must demonstrably meet or exceed the overarching goal of net zero GHG emissions by 2050 and encompass both buildings and infrastructure. To achieve this onerous task, “we must take urgent action to tackle upfront carbon while designing with whole life carbon in mind.”[103] The time for debate and discourse has come to an end.[104] Now is the time for action.
Matthew DiBerardino authored this paper as a law student, prior to articling at Glaholt Bowles LLP where he is now an Associate Lawyer. Mr. DiBerardino obtained his J.D. from Western University, Faculty of Law. Mr. DiBerardino is a licensed Professional Engineer in Ontario and held a career in construction management from 2013 through 2018 prior to law school.
[1] Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para 2, Wagner CJC.
[2] Ibid.
[3] Bill Gates, How to Avoid a Climate Disaster: The Solutions We Have and the Breakthroughs We Need (New York: Alfred A. Knopf of Penguin Random House LLC, 2021). See also Kerry A. Dolan, “How To Solve Climate Change: Bill Gates Wants You To Know Two Numbers” (14 February 2021), online: Forbes <www.forbes.com/sites/kerryadolan/2021/02/14/how-to-solve-climate-change-bill-gates-wants-you-to-know-two-numbers/>.
[4] The Intergovernmental Panel on Climate Change, “Special Report: Global Warming of 1.5oC” (2018), online: The Intergovernmental Panel on Climate Change <www.ipcc.ch/sr15/>.
[5] Valerie Masson-Delmotte et al, “IPCC, 2018: Summary for Policymakers” (2018), online (pdf): The Intergovernmental Panel on Climate Change <www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_SPM_version_report_LR.pdf>.
[6] Ibid at 12.
[7] Ibid at 5, 7–8 (if annual climate warming is consistently 2oC or greater, there is an increased risk of irreversible loss of ecosystems and rising sea levels).
[8] Dolan, supra note 3.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] World Green Building Council, “Global Status Report 2017” (2017), online: World Green Building Council <www.worldgbc.org/news-media/global-status-report-2017>.
[13] World Green Building Council, “New report: the building and construction sector can reach net zero carbon emissions by 2050” (23 September 2019), online: World Green Building Council <www.worldgbc.org/news-media/WorldGBC-embodied-carbon-report-published#_ftn1>.
[14] Ibid.
[15] Matthew Adams et al, “Bringing embodied carbon upfront: Coordinated action for the building and construction sector to tackle embodied carbon” (September 2019) at 7, 22, online (pdf): World Green Building Council <www.worldgbc.org/sites/default/files/WorldGBC_Bringing_Embodied_Carbon_Upfront.pdf>.
[16] World Green Building Council, supra note 13.
[17] Adams et al, supra note 15 at 19.
[18] World Green Building Council, supra note 13.
[19] Adams et al, supra note 15 at 22. See also Adams et al, supra note 15 (“carbon intensive materials such as concrete, steel and asphalt will often contribute the majority of emissions” at 23).
[20] Ibid at 24.
[21] Maryam Shekarrizfard & Juan Sotes, “Reality Check: Carbon Emissions Inventory for the Greater Toronto and Hamilton Area 2018” (February 2021) at 14, online (pdf): The Atmospheric Fund <taf.ca/wp-content/uploads/2021/02/TAF_RealityCheck-Emissions-Inventory.pdf>.
[22] Adams et al, supra note 15 at 24.
[23] Ibid.
[24] Ibid at 7, 24.
[25] Adams et al, supra note 15 at 26. See also Alex Fox, “The Amazon Rainforest Now Emits More Greenhouse Gases Than It Absorbs” (26 March 2021), online: Smithsonian Magazine <www.smithsonianmag.com/smart-news/amazon-rainforest-now-emits-more-greenhouse-gases-it-absorbs-180977347/>.
[26] Shekarrizfard & Sotes, supra note 21 at 7.
[27] Ibid at 14.
[29] Ibid at 3.
[30] Jamie Benidickson, Environmental Law, 5th ed (Toronto: Irwin Law Inc, 2019) at 403–04.
[31] Bill C-12, An Act respecting transparency and accountability in Canada’s efforts to achieve net-zero greenhouse gas emissions by the year 2050, 2nd Sess, 43rd Parl, 2020, cl 6 (first reading 19 November 2020).
[32] SO 2001, c 25 [hereinafter Municipal Act].
[33] Ibid, s 97.1(1). See also ibid, s 97.1(3) (confirmation that subsection 97.1(1) includes the power to require the construction of green rooves or alternative roof surfaces); City of Toronto Act, 2006, SO 2006, c 11, Sched A, s 108.1 (analogous provision for the City of Toronto) [hereinafter City of Toronto Act].
[34] SO 1992, c 23 [hereinafter Building Code Act].
[35] Municipal Act, supra note 32, s 97.1(2). See also City of Toronto Act, supra note 33, s 108.1(2). But see City of Toronto Act, supra note 33, s 108(2) (a City of Toronto by-law in respect of alternative roof surfaces prevails over the Building Code).
[36] O Reg 332/12 [hereinafter Building Code].
[37] Ibid, s 2.2.1.1.(1) [emphasis in original].
[38] Municipal Act, supra note 32, s 10(2).
[39] Provident, Morrison Hershfield & Integral Group, “The City of Toronto: Zero Emissions Buildings Framework” (March 2017), online (pdf): City of Toronto <www.toronto.ca/wp-content/uploads/2017/11/9875-Zero-Emissions-Buildings-Framework-Report.pdf> (“[i]n the residential sector, LEED certification is less common as a result of limited market traction…[and] the energy performance of Toronto’s building stock remains relatively low, with considerable room for improvement” at 14).
[40] Municipal Act, supra note 32 (“a municipality may provide for or participate in long-term energy planning in the municipality” which “may include consideration of energy conservation, climate change, and green energy”, s 147). See also City of Toronto Act, supra note 33, s 105.3.
[41] Municipal Act, supra note 32, ss 11, 13(1)–(2), 28(1)–(2), 30, 44(1), 52(1), 52(3).
[42] Ibid, ss 24–25.
[43] Ibid, ss 11(11), 69(2)–(4).
[44] Office of the Auditor General of Canada, “Perspectives on Climate Change Action in Canada—A Collaborative Report from Auditors General” (March 2018), online: Office of the Auditor General of Canada <www.oag-bvg.gc.ca/internet/English/parl_otp_201803_e_42883.html>.
[45] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92, reprinted in RSC 1985, Appendix II, No 5.
[46] Municipal Act, supra note 32, ss 15(1), 19(1).
[47] Ibid, s 14(1). See also R v Sharma, [1993] 1 SCR 650 (WL) (municipalities may only exercise the powers conferred upon them by statute or through necessary implication).
[48] Mary L. Flynn-Guglietti, Annik Forristal & Kailey Sutton, “Federal Jurisdiction in Municipal Matters: What Happens When the Provinces or Municipalities Step on Federal Toes?” (March 2017), online: McMillan LLP <mcmillan.ca/insights/federal-jurisdiction-in-municipal-matters-what-happens-when-the-provinces-or-municipalities-step-on-federal-toes/>.
[49] East York (Borough) v Ontario (Attorney General), [1997] OJ No 3064 at paras 14–15.
[50] Adams et al, supra note 15 (“[n]ational, state and regional governments…have [the] greatest powers to set standards and targets, implement legislation on materials and planning policies, invest in research and development, and to deploy financial and fiscal measures that can shift the market” at 45).
[51] Isaac Ehrlich and Richard A. Posner, “An Economic Analysis of Legal Rulemaking” (1974) 3:1 J Leg Stud 257 (“[g]reater specificity of legal obligation generates allocative inefficiency as a result of the necessarily imperfect fit between the coverage of a rule and the conduct sought to be regulated” at 268).
[52] Dunsky Energy Consulting, “From Ideas to Action: Enhancing Innovation to Help Canadian Cities Reduce GHGs” (2017), online (pdf): The Atmospheric Fund <taf.ca/wp-content/uploads/2017/11/Dunsky_Report_Urban_Low-Carbon_Innovation_2017-07-04.pdf> (“[c]onsultation and liaison among different levels of government can help spur policy implementation” at 6).
[53] Adams et al, supra note 15 at 11.
[54] Ibid (“[d]emand-side actors…including investors, developers and designers, must work together with those on the supply side – the contractors and materials manufacturers…[and] will need strong policy and regulatory support and access to finance” at 8).
[55] Municipal Act, supra note 32, s 3(1).
[56] Dunsky Energy Consulting, supra note 52 at 5.
[57] Adams et al, supra note 15 at 45.
[58] See Federation of Canadian Municipalities, “Low Carbon Cities Canada: Advancing low carbon solutions in cities across the country” (accessed 1 March 2021), online: Federation of Canadian Municipalities <fcm.ca/en/programs/green-municipal-fund/low-carbon-cities-canada> (“[t]he LC3 network will design and scale-up low carbon solutions at the local level…[and] is made possible by a $183 million endowment from the Government of Canada”).
[59] Dunsky Energy Consulting, supra note 52 at 6.
[60] Mary Pickering, “The uncomfortable path to climate action scale-up” (28 October 2020), online: The Atmospheric Fund <taf.ca/the-uncomfortable-path-to-climate-action-scale-up/>.
[61] Provident, Morrison Hershfield & Integral Group, supra note 39 at 6. See City of Toronto, “Toronto Green Standard” (accessed 1 March 2021), online: City of Toronto <www.toronto.ca/city-government/planning-development/official-plan-guidelines/toronto-green-standard/> (“[t]he Toronto Green Standard is Toronto’s sustainable design requirements for new private and city-owned developments…[and] is a mandatory requirement of the planning approval process”).
[62] See Provident, Morrison Hershfield & Integral Group, supra note 39.
[63] Ibid at 7, 47 (““[m]ajor renovations”…refers to any major HVAC, envelope, or interior renovations that are extensive enough such that normal building operations cannot be performed while renovation work is in progress, and/or a new certificate of occupancy is required…[or] any proposed change of use” at 47).
[64] City of Toronto, “TransformTO” (accessed 1 March 2021), online: City of Toronto <www.toronto.ca/services-payments/water-environment/environmentally-friendly-city-initiatives/transformto/>.
[65] Provident, Morrison Hershfield & Integral Group, supra note 39 at 78.
[66] Ibid at 24.
[67] Ibid at 31.
[68] Ibid at 22.
[69] Ibid at 51, 59 (“[s]ubmetering refers to the installation of devices capable of metering energy usage at various points after the primary utility meter” at 59).
[70] Ibid at 51, 52, 54. See also FVB Energy Inc, “What is District Energy” (accessed 1 March 201), online: FVB Energy Inc <www.fvbenergy.com/what-is-district-energy/> (district energy systems “are networks of hot and cold water pipes…that are used to efficiently heat and cool buildings using less energy than if the individual buildings were to each have their own boilers and chillers”).
[71] Provident, Morrison Hershfield & Integral Group, supra note 39 at 55.
[72] Ibid at 57.
[73] Ibid at 60. See also Green Energy Act, 2009, SO 2009, c 12, Sched A, s 7 (repealed 1 January 2019) (required disclosure to the Ontario Government of energy and water consumption data for prescribed properties).
[74] Provident, Morrison Hershfield & Integral Group, supra note 39 at 49, 62–63.
[75] Ibid at 16.
[76] City of Toronto, “Toronto Green Standard: Overview” (accessed 1 March 2021), online: City of Toronto <www.toronto.ca/city-government/planning-development/official-plan-guidelines/toronto-green-standard/toronto-green-standard-overview/>.
[77] City of Vancouver, “Greenest City: 2020 Action Plan, Part Two: 2015-2020” (2015) at 19, online (pdf): City of Vancouver <vancouver.ca/files/cov/greenest-city-2020-action-plan-2015-2020.pdf>.
[78] Ibid (“[c]ity policy has shifted the design…away from electric baseboard heating to water based heating systems that enable buildings to connect to, and benefit from, neighbourhood systems” at 16).
[79] Ibid (“[t]he City is working…to develop a consistent approach to mandatory building energy benchmarking and annual reporting for large commercial and residential buildings” at 16).
[80] City of Vancouver, “Zero Emissions Buildings” (accessed 28 March 2021), online: City of Vancouver <vancouver.ca/green-vancouver/zero-emissions-buildings.aspx>.
[81] City of Vancouver, supra note 77 (“prescribed improvements for energy efficiency in single family homes (such as increased insulation, better air sealing, improved windows and more efficient heating systems) have reduced GHG emissions from new houses by over 50% as compared to those built to the 2007 requirements” at 16).
[82] Ibid at 15–16, 19 (“[b]efore 2050 we will transition all new and existing buildings to 100% renewable energy” at 19).
[83] Ibid (“[m]uch like the mandatory deconstruction policy for pre-1940s homes, the City has created deconstruction standards for all City-owned facilities, requiring a minimum 75% diversion rate” at 70).
[84] Ibid (“fully implementing green demolition policies aimed at achieving at minimum 75% recycling of demolition waste from pre-1940 homes, expanding the regulation to include demolition waste recycling requirements for all home demolitions regardless of age, and supporting Metro Vancouver’s disposal ban on clean wood waste” at 28).
[85]Ibid at 69–70 (promotion of trenchless watermain construction where feasible and requirement to use low VOC paint for road line markings).
[86] See City of Vancouver, “Climate Emergency: Action Plan Summary 2020-2025” (2020), online (pdf): City of Vancouver <vancouver.ca/files/cov/climate-emergency-action-plan-summary-2020-2025.pdf>.
[87] City of Vancouver, “How we build and renovate” (accessed 28 March 2021), online: City of Vancouver <vancouver.ca/green-vancouver/how-we-build-and-renovate.aspx>.
[88] Adams et al, supra note 15 at 9. See Adams et al, supra note 15 (“[a] net zero embodied carbon building (new or renovated) or infrastructure asset is highly resource efficient with upfront carbon minimised…and all remaining embodied carbon reduced or, as a last resort, offset in order to achieve net zero across the lifecycle” at 9).
[89] Ibid at 32.
[90] Ibid at 27, 49.
[91] Ibid at 27.
[92] Ibid at 49.
[93] Ibid (“[i]ncentives should also be considered such as permit prioritisation schemes and/or density bonuses attached to embodied carbon reduction requirements” at 49).
[94] Dunsky Energy Consulting, supra note 52 at 13.
[95] Benidickson, supra note 30 at 417.
[96] Ibid.
[97] See e.g. Andrea Shabbar, “University of Toronto: One hundred years of district energy” (2012), online (pdf) University of Toronto <http://www.fs.utoronto.ca/wp-content/uploads/2015/12/centennialarticle_university_of_toronto_districtenergysystem.pdf>.
[98] Shekarrizfard & Sotes, supra note 21 at 11.
[99] See Provident, Morrison Hershfield & Integral Group, supra note 39 (“the procurement of some form of off-site renewable energy will be required to meet a zero emissions level of performance” at 36).
[100] Shekarrizfard & Sotes, supra note 21 (“any blips in emissions in 2020 and 2021 are not expected to affect the trajectory of our carbon problem” at 3).
[101] Masson-Delmotte et al, supra note 5 at 5, 7–8, 12.
[102] Ibid.