On June 28, 2019, the Ontario Court of Appeal released its much-anticipated ruling on the constitutionality of the federal Greenhouse Gas Pollution Pricing Act (GHGPPA). It is the second reference case involving this Act, following the previous Saskatchewan Court of Appeal ruling that the Act was a valid federal exercise of jurisdiction under the national concern branch of POGG. Both cases, while also dealing with other issues (such as whether the pricing mechanism amounts to a tax, or whether it may be justified under the emergency branch of POGG), focus on the question whether greenhouse gas (GHG) emissions, or some other appropriate subject matter, meet the national concern test under POGG so as to grant the federal government jurisdiction to pass the GHGPPA. The Saskatchewan case upheld the GHGPPA on the narrow basis that the pith and substance of the Act is the “establishment of minimum national standards of price stringency for GHG emissions”.

With the two cases clearly heading to the SCC in December, 2019, a key question with respect to the Ontario Court of Appeal is whether it offers any new perspectives on the application of POGG’s national concern branch to GHG emissions. Ultimately, the short answer to this question is yes. The decision offers three perspectives on how the POGG national concern analysis should be carried out. One of the three follows the majority of the Saskatchewan Court of Appeal. The other two offer new perspectives that may be helpful to the SCC as it grapples with the issue.

There is little doubt that the applicable test for the national concern branch of POGG is as set out by Le Dain J. in the SCC decision in Crown Zellerbach, at pp. 431-32:

1. The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature;
2. The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern;
3. For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution;
4. In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern it is relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter.

As was the case in previous environmental cases that considered the national concern test under POGG, a critical issue in the analysis of all three judgements by the Ontario Court of Appeal (two for the majority, one dissenting judgement) was how they define the “subject matter” to which they then proceed to apply the Le Dain test.

• Minimum standards to reduce GHG emissions (Strathy C.J.O.)
• Minimum national GHG emissions pricing standards to reduce emissions (Hoy A.C.J.O.)
• GHG emissions (Huscroft, J.A.)

The majority (Strathy C.J.O., Hoy A.C.J.O., MacPherson, and Sharpe JJ.A.), in two separate judgements, applies the first two subject matters to the Le Dain test to conclude that the federal government has jurisdiction under the national concern branch of POGG to enact the GHGPPA. The dissenting judge, Huscroft, J.A., applies the third subject matter to conclude that the federal government does not have jurisdiction under POGG to enact the GHGPPA.

The choice of subject matter, of course, has important implications. It drives the POGG analysis with respect to the third and fourth part of the Le Dain test, and has particular implications for the singleness, distinctiveness, and indivisibility test and the impact on the distribution of power between federal and provincial governments. A more narrowly defined subject matter will more easily pass the requirements of the POGG test. At the same time, however, the choice of subject matter also has implications for the ultimate ability of the federal government to take effective measures to control GHG emission in Canada. The more narrowly defined the subject matter, the more limited the federal power to control GHG emissions.

In this post, I briefly explore the implications of this fundamental choice, and offer some perspectives on the choices made and the analysis applied, particularly with respect to parts three and four of the Le Dain test in the three sets of reasons offered by the Ontario Court of Appeal.

Strathy C.J.O. concludes that the subject matter that offered the most appropriate basis for the POGG analysis was “the setting of minimum national standards to reduce GHG emissions”. He differs from the Saskatchewan majority ruling in defining the subject matter more broadly than the specific subject matter of the GHGPPA. The starting point for this determination is the pith and substance of the legislation being challenged. Clearly the pith and substance is setting a minimum national price for carbon. While the Saskatchewan Court of Appeal proceeded to also accept this as the subject matter for purposes of the POGG analysis, it is clear from the case law that this is not necessary, and that the question of the subject matter is a separate determination that flows from, but is not prescribed by the determination of the pith and substance of the impugned Act.

Having selected minimum national standards for GHG emission reduction efforts, the majority then went on to conclude that this subject matter met the third and fourth parts of the Le Dain test.

Hoy A.C.J.O., who agreed with Strathy C.J.O. and the rest of the majority on the ultimate outcome, reached her conclusion on the basis of the same subject matter as the Saskatchewan Court of Appeal. She appears to apply the narrower subject matter based on case law that has suggested that the subject matter should be defined as narrow as reasonably possible to prevent unnecessary intrusion into provincial areas of jurisdiction. Having selected the narrow subject matter of setting a minimal national carbon price, she had little difficulty concluding that the subject matter met the third and fourth parts of the Le Dain test.

The dissenting judge, Huscroft, J.A., applied the broadest subject matter, and proceeded to conclude that the GHGPPA was not valid federal law. He defined the subject matter to be the reduction of GHG emissions. He did so on the basis that the reference to minimum national standards and a minimum national carbon price went beyond defining a subject matter to defining the tools that could be used to address the subject matter. Huscroft, J.A. concluded that while it was appropriate to seek to define the subject matter narrowly to avoid any unnecessary intrusion into provincial areas of jurisdiction, this did not allow the court to define the subject matter with reference to a particular method or other tool to address the subject matter.

Having concluded that the subject matter is the reduction of GHG emissions, Huscroft, J.A. concluded that this subject matter did not meet parts three and four of the Le Dain test. He did so on the basis that the reduction of GHG emissions does not have a sufficient singleness, distinctiveness and indivisibility to be a federal head of power separate from existing provincial heads of power, and that the scale of impact on provincial jurisdiction was not reconcilable with the distribution of powers under the Constitution. In other words, the impact on provincial jurisdiction of granting exclusive federal jurisdiction over the subject matter in question was too high.

The case raises three key questions with respect to the application of the POGG test to GHG emissions:

1. What is most the appropriate way to choose the subject matter for purposes of the POGG test?
2. How should the court determine whether the subject matter meets the singleness, distinctiveness and indivisibility requirement under part three of the Le Dain test?
3. How should the court determine whether the scale of impact on provincial jurisdiction is reconcilable with the distribution of powers under the Constitution?

With respect to the first issue, the reasoning of justice Huscroft has some attraction. It certainly does seem preferable to narrowing the federal government’s ability to address the subject matter to the single issue of carbon pricing. The more difficult question is whether justice Huscroft is correct in suggesting that limiting the subject matter to setting minimum national standards of efforts to reduce GHG emissions more broadly is also an inappropriate way to narrow the subject matter. What is interesting is that he criticizes the majority for narrowing the subject matter by limiting the tools at the federal government’s disposal, while at the same time criticizing Strathy C.J.O. for not specifying the type of standard. A reasonable interpretation of the subject matter defined by Strathy C.J.O. is that it actually addresses Huscroft’s concern, as it narrows the scope of the subject matter to setting minimum national standards of mitigation, but it does not limit what the federal government can do, as it does not limit what type of standard the government can set. Rather than limiting the tools available, as the focus on carbon pricing would do, justice Strathy’s reasoning allows the federal government to use any tool, but only for the purpose of setting minimum standards, thereby allowing flexibility for provinces on how to meet the standard, and, perhaps more importantly, to exceed the standard. Under the subject matter as defined by Strathy, the government can set a minimum carbon price, or any one of a range of emission, efficiency, performance, or technology standards.

Presumably, it would also be within the range envisaged by justice Strathy for the federal government to set a carbon budget for each province, and leave it to each province to determine how to stay within the budget. This was raised by the court in oral arguments, with the lawyer for the province of Ontario suggesting he had less difficulty with such an approach than with the approach in the GHGPPA. By defining the subject matter as the power to set minimum national standards of mitigation, Strathy C.J.O. has given the federal government the tools to ensure emissions are reduced sufficiently to meet international commitments or otherwise ensure Canada makes a fair contribution to the global effort, while allowing the provinces still lots of room to act in the field of GHG emission reductions.

In short, while perhaps a bit more difficult to defend in light of the details of the legal test as expressed by Le Dain in Crown Zellerbach, the approach taken by Strathy C.J.O. appears most consistent with cooperative federalism, and with the underlying goals of the Le Dain test of ensuring the federal government can act on subject matters of national concern that provinces individually are unable to address effectively. It is also consistent with La Forest’s urging in R. v. Hydro Quebec of a flexible approach to the interpretation of the division of powers to ensure both levels of government have the ability to address what he called “one of the great challenges of our time”. Strathy C.J.O. eloquently points out the need for national jurisdiction over the level of effort by pointing to the discrepancy between emissions and impacts felt in some provinces and the territories.

Strathy C.J.O. and Hoy A.C.J.O. take a similar approach to the application of the Le Dain test to the subject matter. The approach seems sound, as is the conclusion that the subject matter as they have defined it meets the test. This leaves the question whether justice Huscroft’s approach, applying the broader subject matter of GHG emissions, is sound. His reasoning on the singleness, distinctiveness and indivisibility of the subject matter is difficult to follow. As is the case with other decisions on this part of the Le Dain test, he seems to be confusing the singleness, distinctiveness and indivisibility with the impact on provincial powers. A factual comparison with the Crown Zellerbach case is helpful here. In that case, justice La Forest for the dissent pointed to the difficulty of separating marine pollution from fresh water pollution, given that the transition from fresh to marine waters in river estuaries is very gradual. There is no similar difficulty in delineating GHG emissions. Through the UN climate regime, there is clarity on the 6 gases that are included. As a result, the subject matter is easy to delineate and separate from other subject matters.

The impact on provincial jurisdiction would appear to be the real issue. It is unfortunate that none of the three separate reasons actually carry out a detailed analysis. While the majority can be excused for not going into too much detail, as the outcome seemed clear based on their narrower definition of the subject matter, justice Huscroft really needed to deal with the issue given his broader definition of the subject matter. As clear from the oral arguments before the court, no current conflict was ever identified. No examples of a potential future conflict were discussed by justice Huscroft in his reasons. Rather, he seems to assume that because GHG emissions are connected to most human activities, this necessarily meant that giving the federal government control over the reduction of GHG emissions would take away too much power from the provinces.

So what would the impact be? Under the double aspect rule, provinces could still regulate the many activities that contribute GHG emissions for other purposes, such as air pollution or economy or social considerations. What the province could not do is to take action to ensure activities that violate federal GHG rules can still go ahead. More concerning, under justice Huscroft’s definition of the subject matter, provinces might not be able to pass stricter GHG emission reduction laws than those imposed by the federal government, unless they could do so using the double aspect principle or the SCC deviates from the current understanding that the national concern branch of POGG creates exclusive federal jurisdiction. That is the real problem with the broader subject matter applied by justice Huscroft.

The SCC has two reasonable options. It can accept the majority’s approach and define the subject matter as setting minimum standards for GHG mitigation action. Alternatively, it can apply the broader subject matter suggested by the dissent, and clarify that the national concern branch of POGG does not create exclusive federal jurisdiction, but permits provinces to continue to legislate subject only to federal paramountcy. Either approach would result in both levels of government retaining the ability to contribute to addressing the climate crisis, and both approaches would be consistent with the cooperative federalism model, and with justice La Forest’s plea in R. v. Hydro Quebec for pragmatic application of constitutional law principles in the environmental field.

Meinhard Doelle,

Professor, Schulich School of Law

Canadian Chair, Marine Environmental Protection, World Maritime University, Malmö, Sweden

In December, 2018, Parties to the UN Climate Regime are set to negotiate a Rulebook on how to implement the Paris Agreement. The Rulebook will cover a broad range of issues, from market mechanisms, to finance, reporting, and the 5 year review cycles build around the global stocktake. Key among the elements of the Rulebook is the compliance system. In this post, my intention is to briefly highlight some of the issues before negotiators of the compliance system. A more detailed assessment of the draft negotiating text is available in my article entitles “Compliance in Transition: Is Facilitative Compliance Finding Its Place in the Paris Climate Regime?”. It is published in CCLR, and a draft is available at SSRN: https://ssrn.com/abstract=3228766.

In the transition from the Kyoto Protocol to the Paris Agreement, some parties took great lengths to distance themselves from the architecture and institutions of the Kyoto Protocol. Key among this architecture was the Kyoto compliance system, which was seen as a departure from the norm for multilateral environmental agreements (MEAs). The system included an enforcement branch that applied automatic consequences in case of non-compliance with key obligations of developed country parties. It is therefore not surprising to see a focus on facilitation in Article 15 of the Paris Agreement and specific direction that the compliance system is to be non-adversarial and non-punitive.

The differences between the Kyoto compliance system and that to be developed under the Paris Agreement are, of course, also driven by substantive differences between the two agreements. Most notable among these differences is that the Paris Agreement establishes a much broader range of commitments and obligations covering mitigation, adaptation, funding, technology access, education, capacity building, and loss and damage. The commitments, furthermore, have been made by a much broader range of parties, including all developing countries, in particular the least developed countries and small island states. Many of the commitments are self-determined in the form of nationally determined contributions (NDCs) to be updated by parties every five years.

While there are many important differences, some of the core challenges of ensuring compliance are, on closer examination, remarkably similar to the Kyoto Protocol. Both agreements include a range of commitments from voluntary to binding. Both include provisions for market mechanisms, which will be dependent on compliance to be effective. Both include a range of reporting obligations that are fundamental to the functioning of the regime. These parallels suggest parties would be well advised to draw on the compliance experience under the Kyoto Protocol in negotiating the design of the Paris compliance system.

This post assesses the state of play in the negotiations under Article 15 heading into the COP 24 negotiations in Poland from December 2-14, 2018. The negotiations are taking place in the context of the provisions of Article 15 itself as well as provisions 103 and 104 of the Paris COP decision. Before delving into the current state of the negotiations, it is helpful to identify the key relevant elements of the agreement parties reached in Paris.

The overall purpose of the compliance process under Article 15 is to facilitate the implementation and promote compliance with the provisions of the Paris Agreement. It is important to highlight that Article 15 refers to “the provisions”, not just some provisions, and not just obligations. It seems clear, therefore, that the mandate of the compliance committee should be broad in scope, include individual and collective commitments, and include binding obligations as well as non-binding commitments.

Another set of provisions in Article 15 clarify the overall approach to be taken in the design of the compliance system. They refer to the facilitative, non-adversarial and non-punitive nature of the process, and the principle of transparency. These elements offer important guidance to negotiators on the design of the compliance process and the measures the compliance committee should have at its disposal to facilitate implementation and promote compliance.

A key message in Article 15 relates to the “respective national capabilities and circumstances of the Parties”. This reference to the revised principle of common but differentiated responsibilities (CBDR) in the Paris Agreement signals that the process needs to be sensitive to the capacity challenges of the least developed countries in particular. Article 15 is clear that with respect to compliance, differentiation based on capabilities and other relevant circumstances is the job of the compliance committee. This suggests that the compliance modalities and procedures should provide flexibility for the committee to apply certain aspects of the compliance system to parties that have capabilities and circumstances that may warrant either relaxing process requirements or warrant the application of different measures at the conclusion of the compliance proceedings.

The agreement reached in Paris offers considerable direction on the process to be designed.  Included is the composition of the compliance committee (12 members, two from each of the 5 UN regions plus one each from a least developed country and a small island developing state), required areas of expertise, and the importance of gender balance on the committee.  The committee is to report annually to the Conference serving as the Meeting of the Parties to the Paris Agreement (CMA).  This is the context within which parties are now negotiating the modalities and procedures for compliance. Among the key issues are the following:

1. Purpose, Principles and Nature of Compliance Procedures
2. Functions of the Compliance Committee
3. Institutional Arrangements
4. Scope of Work of the Compliance Committee
5. Initiation of Proceedings before the Committee
6. Process to be followed by the Committee
7. Measures and Outputs at the Committee’s Disposal
8. Identification of Systemic Issues (ie beyond individual party issues)
9. Sources of Information for the Committee’s Work
10. Relationship with and Accountability to the Conference of the Parties (COP)
11. Who Carries out Reviews of the Modalities and Procedures
12. Secretariat Support for the Work of the Committee

A particular source of complexity in the negotiations is that the compliance modalities are being negotiated in parallel with the overall Paris Rulebook. Not only is there uncertainty about the nature of substantive rules on mitigation, emissions trading, and finance, but as discussed elsewhere in this special issue, the Paris Agreement contemplates a comprehensive 5 year review cycle that consists of parties reporting on their efforts to implement their NDCs, review of those efforts and reports, a global stocktake of progress against the long term goals, and revised NDCs. Even though the Paris Agreement clearly provides for a compliance system, it seems that some parties would prefer to subsume the compliance effort under the work of the transparency framework and the global stocktake.

To be effective, the compliance process under Article 15 will have to find its place within the Paris Climate Regime, both substantively (i.e. its role with respect to mitigation, emissions trading, finance, adaptation, technology, capacity building, coordination among institutions and connection among commitments) and in relation to the overall institutional structure being developed. The aim must be to complement the bottom up NDC approach with appropriate top down elements to help close the significant ambition gaps that currently exist in all key areas of the Agreement. A key contribution of the compliance process will be its relative independence and its resulting opportunity to impartially assess compliance with individual and collective commitments. This will help inform the broader discussion about the effective implementation of the Paris Agreement.

There is much to be resolved in developing an effective, efficient, and fair compliance process under Article 15. Key among them are effective triggers for the compliance process, an adequately broad mandate to be able to effectively facilitate implementation and promote compliance with all important commitment in the Paris Agreement whether binding or not and whether made by a developed or a developing country Party. The inclusion of “implementation and compliance” and the language of “the provisions” in Article 15(1) clearly enables the process to deal with all important commitments. Any differentiation between binding and non-binding and differentiation among parties should focus on applying appropriate measures in the circumstances. This can be assured through an appropriate combination of general direction to the committee and appropriate discretion. A fair and effective process will depend on the full implementation of the commitment to transparency and on procedural fairness to any Party being investigated.

It will be important to keep the focus of the committee on technical issues and to avoid having it dragged into political issues and equity judgement calls. This seems particularly important and tricky when it comes to the assessment of systemic issues. The committee will be well advised to stick to assessing whether the collective goals are on track and to technical assessments of the causes, without being seen to point fingers at any particular party or group of parties unless they have clearly failed to meet their individual commitments. This means the focus should be on commitments that allow for a technical assessment of compliance or implementation, rather than political consideration or judgements. Committee has the potential to make an important contribution to progress on collective commitments, particularly those that involve all parties or a clearly identified group of parties, as this can be assessed without getting to any assessment of who within the group of parties needs to do more. Having said this, to ensure the committee has the full opportunity to pursue important systemic issues as they arise, the triggers for systemic issues should include the CMA, the Article 13 outcomes, and the committee based on its own assessment of reports generated under the PA.

It will be important to properly integrate the work of the committee with Article 13 and 14. Not much can be said about the details of how to ensure this is done until there is more clarity on the review process under Article 13 and the global stocktake under Article 14. However, it is clear that the compliance committee can benefit greatly from the work proposed under Article 13, and its conclusions and recommendations have the potential to be important for the global stocktake.

For binding commitments, it will be important for the committee to make a finding of compliance/non-compliance and to apply other appropriate consequences including a compliance action plan, and other non-punitive measures. It would be helpful for negotiators to recognize in this regard that compensatory measures are different from punitive measures, and that for markets under Article 6 to function, it may be important to include compensatory measures in the toolbox of the compliance committee. Special access to support should be limited to LDCs and SIDS.

Conclusion

It is too early to say whether the compliance system is finding its place among the many institutions and processes under the Paris Regime. There are still many issues unresolved within the compliance negotiations, and many more issues to be worked out on other key aspects of the Paris rulebook, such as the reporting, transparency and global stocktake provisions. In the absence of significant progress in other areas in advance of COP 24, negotiators may be well advised to develop the modalities and procedures for compliance at a fairly high level, and to leave some of the detail for the compliance committee to work out after there is more clarity on how other aspects of the Paris Agreement, including Articles 6, 13 and 14, will be implemented. As a result, while this year’s COP should be an important milestone in the development of the Paris compliance system, it is unlikely to mark the end, as much of the detail will inevitably have to be finalized later, either by the CMA or by the compliance committee once it is established.

Meinhard Doelle,

Professor, Schulich School of Law