Constitutional Change to Address Climate Change and Nonrenewable Energy Use (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.
Canadian Circumstances: The Evolution of Canada's Climate Change Policy
Energy & Environment, 2001
A tracing and analysis of Canadian climate change policies and international negotiation positions over the past two decades reveals more than the complexity involved in the subject itself. Indeed, analysis suggests that “national circumstances” have consistently been the primary driver of Canada's climate change policy. These circumstances include a decentralized national policy system that necessitates broad governmental and stakeholder participation; a strong economic reliance on natural and energy-intensive resources and exports; a national sense of belonging to the land; and a tradition of leadership and brokering in international affairs. Canada's policies have been, and will continue to be, primarily driven by these national circumstances as negotiations and implementation issues around the Kyoto Protocol further evolve.
Alberta Climate-Change Policy in the Canada-US Context
2009
Among state and provincial climate-change policies in Canada and the United States, Alberta is a puzzling case. From 1992 to 2002, as it worked within the Canadian federal-provincial climate-change policy system, Alberta consistently advocated a voluntary approach. However, its policy changed in 2002, the same year Canada ratified the Kyoto Protocol over the objections of Alberta and other provinces. In October 2002, Alberta published a climate change plan which announced the intention of the province to regulate greenhouse gas emissions (GHG). In 2003, the Climate Change Emissions Management Act was adopted. Provincial regulations regarding intensity of GHG emissions from large firms became effective July 1, 2007. How can we explain this dramatic change in Alberta policy, in contrast to other Canadian provinces and US states? While a number of US states have enacted climate-change legislation, those actions, unlike Alberta, have generally been consistent with their previous positions on the issue. Within Canada, prior to 2008 when British Columbia announced plans to legislate, Alberta was the only province to introduce climate-change legislation. Why did one of the most carbon-intensive sub-national jurisdictions in North America not remain committed to a purely voluntary approach? The proposed paper studies this contrast between Alberta policy and that in all other sub-national jurisdictions in the two countries. The purpose is to identify the most important factors explaining Alberta’s unique policy, and thereby cast light on the larger subject of climate-change instrument choice.
Will We Ever Have Paris? Canada's Climate Change Policy and Federalism 3.0
Alberta Law Review
Global climate change is at the point where politics as usual is not sufficient to combat it. The author argues that a new conceptualization of constitutionalism and federalism will be required to respond to this change. What the author calls federalism 3.0 will be a bottom-up approach to politics, where individuals are empowered by governments and institutions to shape climate policy. This bottom-up approach is encapsulated in the Paris Climate Change Agreement. Canadian Prime Minister Justin Trudeau has publicly declared Canada’s commitment to climate leadership through mobilizing all elements of Canadian society. However, the author argues Trudeau’s policies to date are merely an example of formalistic, check-the-box constitutionalism, rather than substantive, federalism 3.0.
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 Climate Change Policy from a Climate Ethics Perspective
During the Harper years, Canada's international reputation suffered from a perception that the country strongly privileges oil and gas profits over the integrity of the global climate. While a change of tone has been noted with the new Trudeau government, the cautious and incremental approach to carbon pricing coupled by the decision to approve major new fossil fuel infrastructure raises questions about how responsible a global actor Canada really is. Canada's 150th anniversary provides an opportunity to consider questions about Canada's role in confronting serious global issues, as well as the apparent disjuncture between Canada's history as a natural resource exporter and the steps needed to build a low carbon future. At the same time, the commercial and political imperatives driving major energy infrastructure projects (particularly fossil fuel projects) stand at odds with the Trudeau government's commitment to improving relations between Canadian governments and aboriginal peoples. In particular, they clash with the principle of free, prior, and informed consent which Canada has agreed to implement via the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The question of how much fossil fuel infrastructure to build and where is linked to deep enduring themes in Canadian politics, from national unity and federalism to Canada's role on the global stage and the place of indigenous peoples within Canada. At a minimum, adjudicating between these competing claims raises challenges for the present federal and provincial governments. Quite possibly, it also reveals a fundamental incoherence in Justin Trudeau's overall policy agenda.
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...
Following protocol : the political geography of climate change policymaking in Canada
2014
Canada is a country often painted as a unifying power and an honest broker in world affairs. She has a respected history within the United Nations and a tradition of championing international norms, especially to curtail dangerous actions amongst the community of nations. From NAFTA to peacekeeping missions, she has carved a respected niche in global politics, perhaps fairer than her domestic situation warrants. Recent economic and environmental problems challenge this legacy of international cooperation and the rule of law with poor implementation of key international treaties. Environmental problems, in particular, have not translated into robust environmental policies even though Canadian identity is intrinsically woven with the concepts of nature and stewardship. The issue of climate change is a case in point: Canada was one of the earliest and most vocal supporters of the international climate change regime, and simultaneously, one of the world's largest greenhouse gas emitters per capita. The government signed the Kyoto Protocol to the UN Framework Convention on Climate Change (UNFCCC) with a commitment to lower emissions by 6% of 1990 levels; yet emissions rose by 19% by the end of the commitment period. The country appears to suffer from a Jekyll and Hyde syndrome: defending international norms and the rule of law whilst at the same time ignoring the very treaties she fought to create. This thesis explores how the federal Canadian government shifted from being an international leader to a laggard in the Kyoto Protocol; and in doing so it will explain the socioeconomic and political forces that shaped Canada's Kyoto strategy. A grounded theory research design was used, combining key informant interviews, policy document analysis, and participant observation. The case study raises important questions for a country such as Canada with lessons for climate politics both within the country and other federalist countries.