Will Greenhouse Gas Emissions Reports Be Private? Only Time Will Tell
December 18, 2009
Lang Michener LLP InBrief Spring 2010 (under a different title) and Environment, Energy and Emission
In a separate article we have described Ontario's new regime for reporting emissions of greenhouse gases. (See "Reporting of Greenhouse Gas Emissions" by David Thring.) One question that naturally arises is what is the government going to do with the data collected? The regulation does not specify any particular purpose or list of purposes, and the Ministry in its press releases has described the reporting regime as supportive of the coming cap and trade system. However, to those familiar with the National Pollutant Release Inventory ("NPRI") established under s. 50 of the Canadian Environmental Protection Act, 1999, the data to be reported for greenhouse gases looks very similar to the data to be reported for substances specified under the NPRI.
During the consultation process, the issue of whether the data would be publicly available was raised. The decision on O. Reg 452/09, posted as 010-7889 on Ontario's Environmental Registry, provides the following summary with respect to comments received: "A number of comments received in writing and at the information sessions centered on the need to submit confidential business information and concerns over the protection of such information. The Ontario Freedom of Information and Protection of Privacy Act ("FIPPA") protectsconfidential commercial, technical, financial and other typesof business information from disclosure.Confidential businessinformationthat is exempted frompublic disclosure under FIPPA will be protected during the implementation of the requirements. In addition, the data submission requirements in the draft regulation were reviewed and the submission requirements for data that are not essential for the design of a future cap and trade program or for a high level quality assessment of the reported emission have been removed from the final regulation. Most of the other information is required to be kept on site by the company for audit by the Ministry. This will help to reduce the reporting burden and the need to submit certain confidential business information."
Section 10 of FIPPA provides that every person has a right of access to a record or part of a record under the control of an institution, unless it falls within one of the exemptions provided for in sections 12 to 22 of the Act. Greenhouse gas reports are within the definition of a record, and the Ministry of the Environment is an institution under FIPPA. The exemption for third-party information provided for in section 17 of FIPPA provides that production of a record shall be refused where it "reveals a trade secret or scientific, technical, commercial, financial or labour relations information," provided that disclosure would likely "prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization…result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied…result in undue loss or gain to any person, group, committee or financial institution or agency; or reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute." In light of the fact that NPRI data on emissions of hundreds of chemicals have been publicly available since 1994, it will likely be difficult to establish that publication of greenhouse gas emissions will significantly prejudice anyone's competitive position. It is also difficult to understand how these data could assist in implementing a cap and trade system if the data were kept confidential.
While the Ministry of the Environment has not stated an intention to make the data collected available in a fashion similar to the data on the NPRI, the Regulation does provide a mechanism that would facilitate such publication. Section 20 of O. Reg. 452/09 provides that reports are to be submitted in a form provided by or approved by the Director. The Director is given authority to specify that the reports be submitted in electronic form. Submission of reports in a standardized electronic form would facilitate an online database similar to the NPRI. In fact, in the decision referred to above, the Ministry made the following intriguing statement: "Ontario will continue to work with the federal government and other provinces to harmonize GHG reporting requirements and methods where feasible." It would not take any great effort to add the greenhouse gases listed in O. Reg. 452/09 to the list of reportable substances under the NPRI. Only time will tell.