Despite promises of a “robust conversation” from the moderator, a panel discussion titled “Examining the Impact of Bill C-59” concluded that Canada’s efforts to clamp down on false advertising in the fossil fuel sector is part of a broad conspiracy to silence the energy industry.

“Companies that are actually doing good sustainable things, clean green energy, are going to be afraid to talk about it because of the risks of fines and penalties,” said Sonya Savage, a former senior minister in Alberta’s government. “So it becomes green hushing — you can’t talk about it.”

The panel, moderated by Bill Whitelaw, managing director, Strategy and Sustainability at geoLOGIC Systems and JWN Energy, was part of the Carbon Capture Canada conference in Edmonton last week. The panelists included Lisa Baiton, president and CEO of the Canadian Association of Petroleum Producers (CAPP), and Savage, who held the environment and energy portfolios under former premier Jason Kenney. Savage has also worked as a senior executive for the Canadian Energy Pipeline Association, as well as Enbridge, a multinational pipeline company.

Whitelaw set the tone early in describing C-59 as “sneaky legislation,” stating that the law (which was part of an Omnibus bill) was “slid under the door” and that “parliamentarians pulled a fast one” in implementing it. C-59 includes changes to Canada’s Competition Act, which include provisions that explicitly target misleading environmental claims. C-59 took effect on June 20, 2024. Major Canadian oil companies — including those that have partnered in the Pathways Alliance carbon capture project — scrubbed mentions of carbon capture and other alleged climate change mitigation strategies from their websites as a result.

C-59 places the burden of proving environmental benefits on the party claiming them. Claims must be backed by adequate and proper testing.

Asked for their reactions to the legislation, Sonya Savage responded, “We’ve seen this playbook for quite a long time, back to 2015 with a number of initiatives that have come from the federal government, each and every one of them piling upon the other, making life more difficult in our industry here in Alberta.”

The year 2015 likely refers to when Justin Trudeau became prime minister. Despite considerable public subsidies to Canada’s oil and gas sector throughout his time in office — including purchasing the $34 billion TransMountain pipeline — Trudeau has been routinely and inaccurately described as an environmental extremist by conservative political opponents and fossil fuel advocates. What’s more, the anti-greenwashing provisions in C-59 were not proposed by Trudeau’s Liberal Party, but rather by Charlie Angus, a member of the New Democratic Party (NDP). 

Savage described the anti-greenwashing measures as part of what she believes to be a coordinated and connected effort to damage the oil and gas sector.

Asked about the impact of C-59 at CAPP, Lisa Baiton appeared to contradict herself when she said, “We were actually quite involved before it got passed. Yes, it was passed without consultations, but we did get wind of it and we did try to work with parliamentarians both in the House of Commons and in the Senate.”

In fact, the public consultation process related to C-59’s anti-greenwashing provisions began in July and will run through to September 27. 

Fossil Fuel Advocates Pushing Back

Baiton said that CAPP believes all organizations should be responsible for demonstrating that their environmental claims are substantiated and credible. She said this should be a starting point, because “there’s been a lot of misinformation and claims made against our industry that are not true and not fair.”

“I’m in my third year as CEO at CAPP,” said Baiton, “and one of the things I’ve tried to do over the last three years is really pivot back to being a go-to for energy industrial policy underpinned by data with veracity.”

Last year DeSmog reported that CAPP circulated a report indicating Canadian oil and gas production increased without resulting in an increase in emissions, but failed to count emissions related to unconventional oil production, such as the tar sands. When asked about this, a CAPP representative stated that the organization only represents conventional production, despite several of its members’ direct involvement in the tar sands, which account for roughly two thirds of Canada’s annual oil and gas production-related emissions.

Later on in the discussion, Baiton confirmed that CAPP was one of the first groups to make a submission to the C-59 public consultation process, stating “we really wanted to challenge the unfair assertions made about our industry and really talk about the fundamental flaws in this legislation.”

Baiton said she removed information from the CAPP website that cited federal government data because, as she alleged, that data didn’t meet C-59’s new requirements. Baiton did not explain what the connection was between federal government emissions data and claims made by private industry concerning their environmental or decarbonization goals. 

Baiton further argued that “the penalties for noncompliance are so high — 3 percent of total global revenues. And the threshold for making a complaint is so low. And the pathway to compliance is completely undefined.”

While it is true that one of the proposed penalties would be 3 percent of the corporation’s annual worldwide gross revenues, the financial penalties are not automatic. Administrative remedies to demonstrated claims of misleading information tend to begin with orders to cease the conduct and publish public corrections of the alleged misrepresentation. As to whether the threshold for complaints is any lower, or the pathway to compliance undefined, the amendments primarily focus on clarifying language regarding specific environmental claims. While it will be easier for private parties to bring complaints directly before the Competition Tribunal, this is within the context of showing public interest. As to whether the pathway to compliance is undefined, Canada already has laws against making false or misleading claims, and compliance tends to be straightforward: Stop making the claims or accept the penalties.

What Is ‘Green Hushing’?

Rather than prevent greenwashing, Savage told the audience the regulations will result in “greenhushing”.

“I think everybody here agrees that false advertising and greenwashing is bad for companies,” said Savage. “It’s bad for consumers, and we should do something about it, but if you look at C-59, that is not what it’s about.”

Savage then said that the green hushing effect would ultimately dissuade companies from taking “environmental steps.” 

Greenhushing is not a new term. It refers to the practice of a company or organization deliberately downplaying their environmental goals or achievements for fear of scrutiny or of being labelled “greenwashing.” While some of those concerns stem from the possibility of legal actions against false or misleading environmental claims by major corporations, in other cases concerns stem from the position of environmental claims within the context of a broader culture war over climate issues. In that case, a company or organization may wish to downplay environmental achievements because of potential negative consumer perceptions of “environmentally friendly” products or services, or questions about why some products or services are marketed as beneficial to the environment while others aren’t.  

That said, C-59’s anti-greenwashing provisions are focused on unsubstantiated claims made about the environmental benefits of a product or service, and in the context of the Canadian fossil fuel sector, the concern has always been that they are both exaggerating their accomplishments and the efficacy of their proposed solutions.

Savage further stated that C-59 was part of a broad, global trend in greenwashing litigation, intended to silence the Canadian energy industry.

“The greatest way to stop and to change the paradigm, which some of these environmental activists want to do, is to silence those who have a different opinion than you do. And that’s exactly what C-59 does,” said Savage. She then insinuated a connection between Canada’s new anti-greenwashing legislation and a recent United Nations proposal to end fossil fuel advertising. However, while UN Secretary General António Guterres recommended a ban of fossil fuel advertising in early June, the legislation that culminated in C-59 dates back to early February.

Savage also said that C-59 was an indirect ban on fossil fuel advertising, which is incorrect. DeSmog previously reported that efforts to rein in misleading or false statements by the fossil fuel sector resulted in considerable pushback from oil and gas advocates, including deliberately deceptive and misleading information about the proposed legislation.

Asked to summarize CAPP’s opposition to C-59, Baiton responded “this bill really silences one side of a lively public policy debate and leaves the field wide open for those that are opposed. It puts restrictions on how we can communicate with zero accountability or equivalency on the other side.”

Baiton’s argument that “the other side” was lacking in accountability is peculiar, given that those challenging the environmental claims of Big Oil are almost without exception grounded in data and backed by considerable scientific consensus. 

Baiton said that CAPP has asked “that the new rules should apply equally across all industries, all sectors, as well as to nonprofits which fundraise for the purposes of climate advocacy.”

She did not elaborate on how the Competition Bureau’s anti-greenwashing regulations would apply to nonprofit fundraising. 

Baiton further alleged that C-59 “was done very quickly” and that “there was a very partisan reason for it,” which she did not explain. 

“It was done without consultation,” said Baiton, “and so we’re asking for it to be ultimately repealed.”

Whitelaw noted that CAPP’s request for repeal during the consultation process was “symbolically important” before asking Sonya Savage whether the “reverse onus provisions and private rights of action” wouldn’t have the effect of creating “de facto regulators out of environmental opposition groups.”

Savage agreed and responded with her belief that the intent of C-59 is to silence.

“Probably the most concerning provision in the legislation is the right for civil enforcement. That is unprecedented,” said Savage. “It could be environmental activists, it could be your competitors, it could be a disgruntled employee has the right to apply to the Tribunal to enforce the provisions of the act.”

The idea that competitors would use C-59 for nefarious means was reiterated by Lisa Baiton and went unchallenged by Whitelaw. Baiton suggested that, in a market where competition for capital investment in decarbonization efforts is high, C-59 would make it difficult for companies to advocate for their projects with potential investors, as much as serve competitors who might use the legislation to impede other projects. How competing interests could use this to their advantage (or how they might not be obvious to the Competition Tribunal) was not explained. Baiton further charged that C-59 was going to negatively impact investment potential, despite the fact that prohibitions against false or misleading statements are intended to protect the public from fraud as much as potential investors. Baiton then said point blank that C-59 would be bad for carbon capture projects.

Perhaps the most telling statement of the conversation came from Sonya Savage, when she said: “If you look at the intent behind it, there’s a lot of activists globally who do not want to see CCUS (Carbon Capture, Utilization and Storage) succeed and the reason is because it perpetuates and prolongs the use of fossil fuels. If you can produce fossil fuels with zero emissions, then you can continue to produce fossil fuels. So they don’t want that part of the narrative.”

Though C-59 is not specifically about carbon capture, the disreputable technology is Big Oil’s preferred climate change mitigation tool. Savage’s comment — that carbon capture allows zero emission fossil fuel production — is indicative of precisely the dishonest spin C-59 will attempt to prevent. Carbon capture is not a zero emission process, and the production of fossil fuels for energy means continued downstream emissions. Ironically, Savage’s statement confirms exactly what environmentalists have long cautioned about carbon capture — it is primarily a means to make continued fossil fuel production more palatable to unsuspecting consumers, hence the very definition of greenwashing.