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Dr. Meinhard Doelle: Saskatchewan Case on Federal Jurisdiction over Climate Change Going to Court

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Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University, has graciously agreed to join the CEGE Connection conversation and share his insights on climate change and environment law.  We highly recommend a visit to Professor Doelle’s Blog: Environment Law News, which provides vital information that speaks to the complexities of environmental and energy law, climate change, GHG emissions, and the role of human rights in these areas of enquiry.

“Saskatchewan Case on Federal Jurisdiction over Climate Change Going to Court” has been republished from Professor Doelle’s blog, Environment Law News.

In Saskatchewan this week, the first of two reference cases to challenge federal jurisdiction over climate change is going to court. The two cases, brought by the governments of Saskatchewan and Ontario respectively, both involve the federal Greenhouse Gas Pollution Pricing Act. The key aim of the Act is to impose a federal carbon price for provinces that either do not have one at all, or who have developed a carbon price that does not meet the minimum federal requirements. The federal pricing mechanism distinguishes between large industrial emitters and emissions that result from the use of gasoline, heating oil and similar uses at the individual level. The price imposed on individuals starts at $10 per ton and goes up to $50 by 2022. Notably, most of the revenues generated will be returned to citizens on the basis that the price will encourage individuals to reduce emissions where they can, and the rebate will compensate them for the additional cost, while still creating an incentive to reduce emissions where possible.

The province of Saskatchewan is going to court to argue that the federal carbon pricing backstop is an invasion of provincial jurisdiction. The case has attracted an unprecedented number of intervenors, with almost 20 in support of the federal position and 6 in support of Saskatchewan’s position. The immense interest in this case is not surprising. Constitutional arguments have been at the center of efforts to undermine strong environmental laws in Canada for a long time. Some have been resolved through court cases, cases which the federal government has mostly won. Others, such as the jurisdiction of the federal government to regulate greenhouse gas emissions, have lingered in the background of efforts at federal-provincial cooperation on this issue for the last two decades. As I have explored in previous posts, we have gone through cycles of federal leadership with provincial resistance, followed by federal apathy with some provinces leading the way. Questions over the limits of federal jurisdiction to deal with climate change have brewed below the surface every time the federal government has sought to lead on this issue. This, however, is the first time the legal issue is going to court.

There is such broad interest in this case, because the stakes are high. In the past two decades of lack of effective cooperation and action on climate change, we have lost valuable time in ensuring a smooth and just transition to a carbon free world. The longer these battles continue, the less we will be able to take advantage of the economic opportunities associated with the transition, the more our economy will suffer from the unplanned and abrupt loss of the jobs of the past, and the harder the transition will be for the workforce that currently relies on jobs in sectors in need of transition.

There are different ways the court can resolve the case. It may just decide narrowly whether the federal government has jurisdiction to implement the specific carbon pricing backstop it has introduced through the Greenhouse Gas Pollution Pricing Act. It could, however, also answer more general questions about federal jurisdiction over climate change. This is in part because the federal government has a number of arguments it can make. They include the federal government’s power over taxation, the federal criminal law power, and the power of the federal government to legislate in case of matters of national concern and emergencies. Some of these federal powers offer opportunities to clarify that the federal government has broad powers to regulate greenhouse gas emissions. Declaring climate change to be a matter of national concern or an emergency would be a way for the court to grant broad powers to the federal government. Federal powers to regulate greenhouse gas emissions would be more narrow if the court decided to grant federal jurisdiction using the federal taxation power or the criminal law power.

What is least likely is that the courts will depart from the well-established principle of cooperative federalism in dealing with this case by holding the federal government has no power to regulate greenhouse gas emissions. The court will be looking for ways to ensure the federal government has the legislative power to deal with climate change, while not excluding provinces from sharing this responsibility. One way to do that would be for the court to limit the federal power to a specific tool, such as the taxation power or the criminal law power. Another option for the court would be to grant broad federal jurisdiction based on federal national concern or emergency powers, but to clarify that those powers do not take away from the ability of provinces to also regulate the same activities.

A final option would be for the courts to reverse old case law in Canada and decide that the federal government has the power to implement international treaties, such as the Paris Climate Agreement. This would bring Canada in line with countries with similar constitutions, such as Australia, and avoid jurisdictional squabbles over the implementation of Canada’s international commitments and obligations.

Ultimately, whatever the specifics of the outcome, there is every reason to expect that the guiding principle for the courts will be cooperative federalism. This was emphasized most recently in the Orphan Wells decision of the SCC on the relationship between federal bankruptcy law and provincial environmental regulation, and it is a point the SCC has made again and again on environmental cases over the past few decades. The courts will be looking for ways to ensure both levels of government have the ability to address climate change, the greatest environmental emergency of our time. It is hard to see how a court will find that the federal government, after 20 years of efforts at a common approach, was unreasonable in imposing a carbon price on provinces unwilling to set their own.

The stakes are high, but the court, with the active involvement of well over 20 intervenors from all segments of Canadian society, has the opportunity in this case to remove a long-standing barrier to the effective regulation of greenhouse gas emissions, and thereby ending a two decade long stalemate on one of the most critical issues facing Canada and the world.

 

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Teaching

Professor Doelle’s teaching within the law school has involved courses in environmental law, energy law, climate change and contract law. He has also been involved in interdisciplinary teaching outside the law school, most notably at the College of Sustainability, where he co-taught a course on Humanity in the Natural World from 2009 to 2012

Dr. Meinhard Doelle: Decades of Climate Policy Failure in Canada: Can we Break The Vicious Cycle?

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“During the course of a hot and humid stretch in the middle of summer on the East Coast of Canada, while hearing about record heat waves and wild fires, I find myself reflecting on over 20 years of efforts in Canada to respond appropriately to the challenge of climate change.  During the past 20 years, Canada has gone from leader to laggard twice, once with the Kyoto Protocol, and again, it would appear based on recent developments, with the implementation of the Paris Climate Agreement.”

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University, has graciously agreed to join the CEGE Connection conversation and share his insights on climate change and environment law.  We highly recommend a visit to Professor Doelle’s Blog: Environment Law News, which provides vital information that speaks to the complexities of environmental and energy law, climate change, GHG emissions, and the role of human rights in these areas of enquiry.

“Decades of Climate Policy Failure in Canada: Can we Break The Vicious Cycle?” has been republished from Professor Doelle’s blog, Environment Law News.

During the course of a hot and humid stretch in the middle of summer on the East Coast of Canada, while hearing about record heat waves and wild fires, I find myself reflecting on over 20 years of efforts in Canada to respond appropriately to the challenge of climate change.  During the past 20 years, Canada has gone from leader to laggard twice, once with the Kyoto Protocol, and again, it would appear based on recent developments, with the implementation of the Paris Climate Agreement.   All this, of course, after Canada had already committed to stabilize emissions at 1990 levels by 2000 in the context of the 1992 Framework Convention on Climate Change, a commitment it also failed to implement.

Canada eventually withdrew its ratification of the Kyoto Protocol, and in the process did very little to reduce domestic emissions compared to most developed and even some developing countries.

Following its leadership role in 1997 in the Kyoto negotiations, Canada’s federal government of the day worked hard with provinces and stakeholders to develop a set of climate policies to implement effective climate mitigation and adaptation in Canada.  It ratified the Kyoto Protocol, supported its entry into force, but efforts to take effective steps to implement Canada’s commitments ultimately failed.  Canada eventually withdrew its ratification of the Kyoto Protocol, and in the process did very little to reduce domestic emissions compared to most developed and even some developing countries.  Some provinces, such as British Columbia, Ontario, Quebec and Nova Scotia, stepped up to lead during this period of federal withdrawal, but Canada as a whole never achieved any leadership in its domestic mitigation efforts.

Canada has more recently made another effort at climate mitigation leadership, this time in the context of the Paris Climate Agreement in December 2015, only to falter yet again in translating its international leadership into effective domestic implementation.   In this post, I will share my reflections on this most recent cycle, which started with the election of the Trudeau Liberal Government in the fall of 2015.

The Liberal Party under Justin Trudeau showed signs of leadership on climate change during the 2015 federal election.  It beat out the NDP in part by appealing to traditional NDP and Green Party voters on issues such as climate change. Once elected, it continued to show leadership during the UN climate negotiations, by playing an important, constructive role in the final days of the Paris climate negotiations in December 2015.  It was part of an ‘ambition coalition’ of over 100 countries that secured the inclusion of the global goals of keeping temperature increases to well below 2 degrees while striving for 1.5, and to aim to reach global carbon neutrality by the second half of the century.  Canada continued to show leadership by ratifying the Paris Agreement quickly to help bring it into force in record time by November 2016.

In spite of agreeing to provisions in the Paris Agreement that recognize the gap between individual commitments and the collective goals and call for an increase of effort over time to meet the collective goals, Canada continues to show no willingness to increase its commitment by revising its NDC.

As the Trudeau government turned its attention to domestic implementation, the failure to turn international leadership into domestic action soon began to show.  The first step was not encouraging.  In spite of its criticism of the Harper government on its inadequate efforts on climate change, and in spite of its commitment to the Paris Climate Agreement, the Trudeau government did not increase the ambition of Canada’s Nationally Determined Contribution (NDC) from the inadequate NDC the previous government had filed before the Paris Agreement was finalized.  In spite of agreeing to provisions in the Paris Agreement that recognize the gap between individual commitments and the collective goals and call for an increase of effort over time to meet the collective goals, Canada continues to show no willingness to increase its commitment by revising its NDC.

The second step of the Trudeau government was more encouraging. It was able to negotiate a Pan Canadian Framework on Climate Change with most of the provinces and all territories.[1]  The agreement was disappointing to some in that it did not bring all provinces on board, and its commitment would not get Canada all the way to its 2020 or 2030 emission reduction targets under the inadequate NDC filed by the Harper government.  Nevertheless, it had the potential to be an important breakthrough in overcoming the past divisions over effective climate mitigation in Canada, and to put Canada on the path to decarbonization.

There is no credible evidence that Canada, as a whole, will benefit from resisting this transition.  There are strong indications to the contrary even in the short to medium term, and the combination of the cost of inaction and the economic opportunities associated with action leaves little doubt about the net economic benefits of decarbonization in the long term.[2]

Perhaps the biggest flaw of this effort was the federal government’s failure to clearly position the Pan Canadian Framework, from the start, as an initial step that needed to be strengthened over time.  Instead, it has become an inadequate high-water mark to be attacked and whittled down by powerholders who oppose to the decarbonization of Canadian society out of near-sighted self-interest and political opportunism.  It is clear that the opposition to the transition comes from those who benefit from the status quo.  There is no credible evidence that Canada, as a whole, will benefit from resisting this transition.  There are strong indications to the contrary even in the short to medium term, and the combination of the cost of inaction and the economic opportunities associated with action leaves little doubt about the net economic benefits of decarbonization in the long term.[2]

Since it negotiated the Pan Canadian Framework, rather than fully implement it and prepare for the next level of effort, the Trudeau government has taken major steps backward in response to relentless pressure from some provinces and industry sectors.  Such steps include the following:

Developing backstop legislation for a key element of the Pan Canadian Framework, the carbon pricing element, that abandons the spirit of the framework by exempting 70 percent of emissions for some industry sectors from the carbon price. This essentially means that most emissions from these sectors are actually not subject to a carbon price at all.[3] Announcing that exemption to some industries will be increased to 80 and 90 percent, further eroding the carbon pricing element of the framework, meaning that even more emissions from these sectors are not subject to a carbon price. Assuming modest efforts to reduce emissions, these sectors may now be exempt from the carbon price all together, without a clear signal that the remainder will be priced in the future.[4] [Read more…]

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