The Crude Politics of Carbon Pricing Pipelines and Environmental Assessment (original) (raw)
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Ottawa Law Review, 2019
Jurisdictional tensions are nothing new in the Canadian federation, but recent provincial challenges to the constitutionality of Parliament’s carbon pricing policy come with very large stakes for Canadians. With renewed commitments to meaningfully reduce its greenhouse gas (GHG) emissions under the Paris Agreement, and details for how to do so set out in the 2016 Pan Canadian Framework on Clean Growth and Climate Change, Canada seemed poised to start taking the steps needed to address what can fairly be described as a very serious threat to Canada and the world. But effective climate policy requires action at multiple levels of government, and Parliament’s choice to require a base level of carbon price applicable in all jurisdictions has raised the ire of some provinces who believe this is outside Parliament’s jurisdiction. In this paper, I have examined three central issues that Saskatchewan and Ontario’s constitutional references will require the Courts to examine. First, I analyse the main basis of jurisdiction argued by Canada to justify the Greenhouse Gas Pollution Pricing Act (GGPPA), Parliament’s authority to legislate for Peace, Order and Good Government (POGG) under the National Concern branch. In particular, I address the argument made by the challenging provinces that conferring jurisdiction to Parliament over GHG emissions as a matter of national concern would displace provincial GHG emissions. I conclude that this argument is unfounded in light of recent jurisprudential approaches to the division of powers, proper characterization of the subject matter, applications of the double aspect doctrine, and the interpretative principle of cooperative federalism. While provincial concerns about federalism should not be minimized, there is ample constitutional space for provincial and federal legislation on GHG emissions to peacefully co-exist, especially when they are both aimed at the same broad goal of reducing GHG emissions. Second, I examine the prospects for justifying the GGPPA under the Emergency branch of POGG. In light of recent scientific evidence, there is a legitimate basis for qualifying the GGPPA as legislation addressing the global and national climate emergency. I examine the contours of the temporal limitation on the emergency branch, since it is through the temporary limit that courts justify this branch’s intrusion on provincial powers, and suggest that the window of time between now and 2030 may be the most appropriate timeframe for this power, given the Intergovernmental Panel on Climate Climate (IPCC)’s findings in its 1.5 degree report identifying this as the crucial timeframe within which to make the rapid, unprecedented changes needed to avert dangerous levels of climate change. Third, I consider a tension that arises when jurisprudential tests accustomed to dealing with regulatory charges that are aimed at offsetting regulatory costs are applied to a behaviour-modifying economic instrument, such as carbon pricing. While the courts have already recognized that behaviour-modifying measures can themselves constitute regulatory charges, thereby satisfying the jurisprudential test for finding a connection between a regulatory scheme and a charge, they have an opportunity in these cases to fill in the contours of this branch of the test. While the provincial challenges raise important questions about the balance of power in our federation, their arguments – if successful – would leave a gaping hole in Canada’s ability to enact a country-wide policy to reduce GHG emissions. While they may not like the policy choice Parliament made in using carbon pricing, the choice of policy itself is not under scrutiny. The heart of the matter is whether Parliament has the jurisdiction to enact the GGPPA. My article concludes that the legislation is intra vires. The fact is that meaningfully reducing GHG emissions is going to require some difficult choices. But the difficulty is already here, being felt in floods, fires, droughts, extreme storms, and melting permafrost. Our future depends on the Courts recognizing that the Constitution is equipped with the flexibility and adaptability needed to enable the country to legislate an effective, full response to an issue with such grave repercussions as climate change, without leaving any cracks through which Canadians’ futures could fall.
Making Federalism Work for Climate Change: Canada's Division of Powers Over Carbon Taxes
There is increasing agreement in Canada that we need carbon pricing policies. Indeed, Quebec and British Columbia have forged ahead with carbon taxes, and the Liberal opposition has included a carbon tax in its most recent platform. One is tempted to simply point to the respective federal and provincial taxation powers for jurisdictional authority.However, and perhaps surprisingly, the taxation powers are not the optimal source of authority. This paper shows that both levels of government have authority to implement carbon taxes under various heads of power, depending on the measure’s design. Federally, carbon taxes could be justified under the national concern branch of the POGG power, and possibly under the criminal law, trade and commerce and taxation powers. While the property and civil rights power, taxation power and authority over natural resources might justify carbon taxes provincially, the licensing power offers the strongest source of authority. Analysis of Quebec and B.C...
Review of Constitutional Studies, 2018
Many constitutional questions arise in the context of assessing, approving, and regulating interprovincial pipelines. This paper examines the extent to which upstream and downstream greenhouse gas (GHG) emissions can be considered and acted upon when proponents seek federal approval to build, expand, or modify an interprovincial pipeline. This question has become relevant in the context of Canada’s international commitments under the Paris Agreement, which require rapid, broad, and systemic decarbonisation of the Canadian economy. The article examines the questions through the lens of the regulatory frameworks in force at the time of writing (the National Energy Board Act and the Canadian Environmental Assessment Act, 2012) as well as draft legislation under Bill C-69, namely the Canadian Energy Regulator Act and the Impact Assessment Act. Although the new laws do not explicitly refer to indirect emissions, a reasonable interpretation of the legislation suggests that federal regulators would be within the bounds of their statutory authority to include indirect emissions in their deliberations and decision-making. A constitutional analysis suggests that that they would also be justified in doing so. The courts have confirmed federal jurisdiction over regulation of GHG emissions under the criminal law power, and there are two reference cases active at the time of writing that will examine the jurisdictional scope of the peace, order and good government power in the context of carbon pricing. Although it is unchartered jurisprudential territory, it is reasonable to conclude that under the new regulatory regime, Parliament will have the statutory and constitutional authority to consider the full implications of GHG emissions associated with an interprovincial pipeline proposal, especially if the courts continue to interpret jurisdictional powers through the flexible, purposive lens of cooperative federalism.
National Journal of Constitutional Law , 2016
Prime Minister Justin Trudeau has committed the government to do what is needed to ensure Canada meets or exceeds its national climate targets under the Paris Agreement. While he has promised to work collaboratively with the provinces in establishing a pan-Canadian clean growth and climate framework, it is clear that some new federal climate laws will be required. There are many factors involved in selecting and designing climate policies, one of which is constitutional jurisdiction. This article analyzes Parliament's authority to regulate greenhouse gas (GHG) emissions and implement a carbon price, either through a national carbon tax or a national emissions trading scheme. Taking into account recent jurisprudence and previous scholarship, the article considers five federal powers: Peace, Order and Good Government (P.O.G.G.), criminal law, taxation, trade and commerce, and the declaratory power. It also considers the spending power. The analysis shows that there is ample authority within the Constitution for a strong federal role in regulating GHG emissions and pricing carbon without displacing appropriately scoped provincial climate programs. While thoughtful legislative drafting will be important, ultimately the Canadian Constitution's division of powers is adequately equipped to deal with what may be the greatest public policy challenge of our time. In fact, climate change is perhaps the quintessential issue for engaging the tools of cooperative federalism and progressive interpretation of our Constitution. Le premier ministre Justin Trudeau s'est engagé à ce que le gouvernement fasse ce qui est nécessaire pour que le Canada respecte ou dépasse ses objectifs climatiques nationaux en vertu de l'Accord de Paris. Même s'il a promis de *332 travailler en collaboration avec les provinces afin d'établir un cadre pancanadien en matière de croissance propre et de changement climatique, il est clair que certaines nouvelles lois climatiques fédérales seront nécessaires. Plusieurs facteurs entrent en jeu dans le choix et la conception des politiques climatiques, dont l'une est la compétence constitutionnelle. Dans cet article, l'auteure analyse le pouvoir du Parlement lui permettant de réglementer les émissions de gaz à effet de serre (GES) et mettre en oeuvre un prix du carbone, soit par le truchement d'une taxe nationale sur le carbone ou d'une bourse nationale du carbone. Tenant compte de la jurisprudence récente et des précédents travaux, l'auteur considère cinq pouvoirs fédéraux: paix, ordre et bon gouvernement, le droit pénal, la fiscalité, le commerce et le pouvoir déclaratoire. Il tient également compte du pouvoir de dépenser. L'analyse montre qu'il y a des pouvoirs amplement suffisants au sein de la Constitution pour que le gouvernement fédéral joue un rôle de premier plan dans la réglementation des émissions de GES et la tarification du carbone sans avoir à modifier la portée des programmes climatiques provinciaux. Même s'il est important que la rédaction législative soit réfléchie, en fin de compte, le partage des compétences de la Constitution canadienne est suffisant pour faire face à ce qui peut être le plus grand défi de la politique publique de notre temps. En fait, le changement climatique est peut-être la question par excellence pour mobiliser les outils du fédéralisme coopératif et l'interprétation progressive de notre Constitution.
Canadian Federalism and the Political Economy of Energy and the Environment
Canadian Journal of Political Science, 2021
These two books draw attention to the role of Canada's oil-producing provinces—“petro-provinces” for Angela Carter and “carbon provinces” for Douglas Macdonald—in the politics of energy, environment and climate change, but they do so in very different ways. Carter's volume examines the erosion of environmental protections in the oil-rich provinces of Alberta, Saskatchewan, and Newfoundland and Labrador, while Macdonald's focuses on the way interest-based conflicts rooted in regional energy political economies have driven federal/provincial dynamics around energy and climate policy. Both books are well written (not always a given in academic publishing), and they should interest anyone concerned with the politics of energy, environment and climate change in Canada.
Where Power Comes to Matter: The Energy East Pipeline and the Politics of Determinacy
Master's thesis, 2018
This thesis is about the controversies that engulfed TransCanada's Energy East pipeline project from the moment it emerged into the public sphere in 2013, and which led to its ultimate demise in 2017. As such, it is an investigation into how power, sovereignty, and agency were mobilized in the negotiation of a pipeline project in Canada. In the contemporary political and environmental climate, pipeline projects have had a rough go of it. Sweeping changes made to the legislative and regulatory framework by the Conservative federal government in 2012 were intended to expedite their approval but appear to have had a contrary effect. Rather than provide certainty to proponents, the changes further undermined the decisional infrastructure and distribution of constitutional authority. In this context, the contest has been less about substantive deliberation than infrastructural determination, as normative decisional frameworks became further unsettled. The controversy opened up a wide range of questions, such as: Who had power to decide? Which jurisdictions applied? How should democratic participation be delineated? Who was the public that the regulator purportedly spoke for? How were decisions justified? What counted as evidence? In other words, it was as much about which projects might be considered as being in the "national" interest as it was about the procedural and epistemological channels through which this determination should be made. My observation has been that stuck between growth imperatives, vested interests, democratic expectations, and a growing recognition of impending environmental crisis, governments and companies like TransCanada prefer determinate power relations: a clear and exclusive allocation of decision-making authority. They also prefer indeterminate substantive guidelines, writing as much discretionary power into the law as possible and leaving open the possibility of strict environmental protections in general while allowing for exceptions in the specific. Environmental assessment reformists, on the other hand, prefer indeterminate power — a shared and inclusive distribution of decision-making power — and determinate substantive legal guidelines. What substantive indeterminacy combined with centralized, exclusive power makes possible is framing contingent transgressions of overall political goals as exceptional. In the controversy over TransCanada’s pipeline project, the public was not just pushing back against oil and its potentially devastating effects. They were also pushing back against a regulatory infrastructure which evacuated too much of its political agency and normalized the particular interests of some as the inevitable future for all.
2015
This dissertation studies the emergence of carbon pricing mechanisms at the sub-federal level in Canada in order to answer two questions. First, why have some Canadian provinces adopted carbon pricing instruments, either a cap-and-trade or a carbon tax, while others have not? And, second, of the provinces that have adopted carbon pricing, how can we explain differences in the design of their carbon pricing instruments? In order to answer these questions, the dissertation has investigated the process of adoption of climate change policy in Canada’s ten provinces through four distinct stages: 1) the diffusion of the ideas supporting carbon pricing, 2) climate policy capacity building, 3) the public debate following the proposition of carbon pricing by the governing party, and 4) the design of the carbon pricing instrument. After reviewing the climate change policy-making processes that have taken place in the provinces, the dissertation’s answer to the first question is that carbon pricing instruments to reduce greenhouse gas (GHG) emissions have been adopted in provinces in which the government has shown early on an acceptance of both the scientific paradigm of anthropogenic climate change (ACC) and the policy paradigm of liberal environmentalism (LE)—the latter promoting market-based climate policy. These provinces are also the ones in which the premier has shown a personal commitment to the issue of climate change: a commitment which has contributed to focusing resources on the issue and to building climate policy capacity ahead of other provinces. Among provinces that have adopted carbon-pricing, climate policy is framed as providing important economic benefits through the creation of carbon markets and fostering investments in the renewable energy industry and other green technologies. In order to adopt carbon pricing instruments, both the diffusion of ACC and liberal environmentalism, along with the building early on of climate policy capacity, are necessary conditions. The dissertation’s answer to the second question is that provinces, although to varying degrees, have designed their carbon pricing instruments in order to take into consideration the particularities of their economic context and the policy preferences of their main industrial emitters. While some provinces, such as Quebec in imposing a cap-and-trade system, have been willing to go well beyond what their industries have been ready to accept, at least initially, others have adopted carbon pricing instruments designed to match closely the policy preferences of their most important GHG emitting industry. Tracing provincial climate change policy-making process through the two stages of the public debate of carbon pricing proposal and their adoption shows the political contingency of carbon pricing mechanisms being adopted. Carbon pricing instruments are adopted in different contexts—but in all cases they are adopted when political conditions facilitate their adoption. Facilitating political contexts are 1) majority governments headed by premiers committed to carbon pricing instruments; and 2) governments enjoying an interparty consensus around the desirability of carbon pricing, which led to a low electoral salience of the issue of carbon pricing. As an example of the first, carbon pricing was adopted and maintained in British Columbia’s polarized bipartisan system and despite the electoral controversy surrounding the carbon tax during the 2008 election. As an example of the second, minority governments that enjoy interparty consensus around the desirability of carbon pricing—for example, Quebec—can adopt carbon pricing instruments during minority government periods. The absence of either condition makes carbon pricing instruments unlikely. In the Canadian context, three provinces have multiparty systems prone to minority governments: Quebec, Ontario, and Nova Scotia. Both Quebec and Ontario pledged to implement a WCI-inspired cap-and-trade system and experienced minority governments in recent years. However, carbon pricing was not an electoral issue in Quebec, given the consensus that existed on the implementation of cap-and-trade among the main political parties. In the case of Ontario, such interparty consensus does not exist and carbon pricing became an electoral issue in the 2011 election. Along with other taxation and energy issues, part of the Conservative campaign narrative against the Liberal government. The example of British Columbia shows, however, that provincial governments can persist in the adoption and implementation of carbon pricing despite public controversy, as long as they maintain a majority government, which is the usual outcome of the BC polarized party system. Alberta, before the most recent provincial election, was in a similar situation and the issue of carbon pricing was not salient. However, in Ontario the Liberals only secured a minority government in the 2011 election, a more likely outcome under the Ontario multiparty system, and the decision was taken not to proceed with the implementation of the cap-and-trade system in the aftermath of the 2011 election. The Quebec PQ minority government was in a similar position after the 2012 election. However, thanks to the interparty consensus on carbon pricing and low issue salience, the Quebec government decided to move forward on the cap-and-trade system. A comparison among the cases of Quebec, British Columbia, Alberta and Ontario shows the importance of the political context in the adoption of carbon pricing instruments, insofar as adoption which appears to be much more vulnerable in provinces with a fragmented multiparty system. It allow us to predict that now that the Ontario Liberals have secured a majority, they will be able to proceed with the full adoption of a cap-and-trade system, as per Ontario premier Kathleen Wynne’s stated intentions. Moreover, if the interparty consensus in Quebec is compromised and another minority government elected it could jeopardized current carbon pricing policy. Considering now the final stage of the climate policy-making process—the design of the carbon pricing instrument—the presence of the oil and gas sector emerges as a major factor that shapes the development of carbon pricing in provinces in which this sector plays a significant role in the provincial economy. Oil and gas producing provinces that have adopted carbon pricing instruments have designed their carbon pricing instruments so as not to constrain the profit-making capacity of the oil and gas sector. Alberta’s intensity-based emissions trading and British Columbia’s carbon tax do not restrict the growth of industrial GHG emissions and, to date, have allowed the oil and gas sectors to continue to grow. In British Columbia and Manitoba, the growth of the oil and gas sector appears to have prevented these two provinces from fully adopting the cap-and-trade system designed through the Western Climate Initiative (WCI). By contrast, Quebec has resisted the development of shale gas and proceeded with the adoption and implementation of its cap-and-trade system in the framework of the WCI. This dissertation has also investigated how party ideology and public opinion affect governing parties’ incentives to adopt carbon pricing instruments. It finds that public opinion majority support does not explain the adoption of carbon pricing. Carbon pricing instruments have been implemented in provinces with high (Quebec) but also low (Alberta) levels of support for these policies. Furthermore, carbon pricing instruments have not always been adopted in provinces with relatively high level of public support (such as Ontario). Finally, there is no clear relationship between the governing party’s ideology and carbon pricing. Carbon pricing instruments have been supported by right-wing, centrist and left-wing provincial political parties, while the BC NDP and the Ontario and federal conservative parties have opposed it.
Obstacles to Carbon Pricing in Canadian Provinces
Report prepared for Sustainable Prosperity, 2014
Key messages: • Market-based instruments (MBIs), either under the form of emissions trading or carbon taxation, have been increasingly popular in OECD countries and, in Canada, at the sub-national level. • Québec, Alberta, British Columbia and, to a lesser extent Manitoba, have all successfully adopted and implemented carbon pricing policies, while Ontario and Saskatchewan have proposed to adopt MBIs though implementation has not yet proceeded. • The implementation of MBIs began in 2007, after the Harper government decided not to implement any such instrument at the federal level, allowing provinces to experiment without creating redundant carbon pricing schemes. • Three important types of obstacles to the adoption and implementation of MBIs are identified amongst Canadian provinces: administrative obstacles associated with a lack of environmental and climate change policy capacity, political obstacles associated with the provincial party system and salience of MBIs during elections, and finally economic obstacles, especially the policy preferences of main provincial industries. • MBIs remain popular amongst Canadians and different strategies can be adopted to overcome obstacles to their implementation. Policy capacity can be secured rapidly through inter-jurisdictional cooperation and/or by using central agencies such as the ministry of finance or specialized regulatory bodies rather than environment ministries. In provinces where resistance to market-based approaches is more significant, a narrow-based carbon tax or limited form of emissions trading (such as credit-based emissions trading) can be implemented as a first step toward a more comprehensive and effective market instruments. These instruments can also be used to augment financial resources to increase climate change policy capacity or funding for new technologies that might, in the long run, help reduce compliance costs associated with more stringent MBIs.