On September 23, 2020, the Supreme Court reserved its judgment on the constitutionality of the Greenhouse Gas Pollution Pricing Act, also known as the hallmark national carbon tax scheme under the federal Liberal government. After two days of hearings from representatives for appellants, the respondent, and all other interested parties along with expert testimonies from the scientific community, the Court clearly had a consensus during oral arguments that climate change is undoubtedly a matter of national interest, but concerns arose as well whether the law disproportionately trespassing on provincial jurisdictions, and whether a national response is the best and/or necessary approach in light of the alleged encroachment of provincial powers. (Rabson, 2020)
This essay will be an attempt at providing some clarity for both queries. Pragmatically, a national response is a must, and the decentralized Canadian federalism may prove an obstacle depending on how effective the federal and provincial government can coordinate their efforts. This essay will approach this from the following angles:
1) Climate change is a global and national crisis that does not stop at national or provincial boundaries.
2) Existing model of cooperative federalism is ill-fitted to an issue as sprawling and complex as climate change. For a national approach to work, federal-provincial coordination is crucial to sidestep the jurisdiction questions.
3) As a result of different federal and provincial constitutional responsibilities and priorities, a national standard, including the carbon pricing scheme, is imperative to prevent the inevitable patchwork of inadequate policy responses to climate change.
Climate change and POGG: collective threat requires collective action
The current case before the Supreme Court is a combination of three different cases decided by the Courts of Appeal in Ontario, Saskatchewan, and Alberta. (Rabson, 2020) All three appellate court decisions were predicated on whether Peace, Order and Good Government, the residuary powers contained in Section 91, are an appropriate justification for the federal carbon pricing scheme. And in determining that, they would have had to first establish that
1) there is a clear national interest dimension to the legislation, as per Local Prohibition Case; (Judicial Committee, 1896)
2) the legislation passes the singleness, distinctiveness, and indivisibility test to ascertain that the legislation is limited, in scope, to that national concern, and not intended as a power grab by the federal government, as per R v Crown Zellerbach Canada Ltd. (Supreme Court of Canada, 1988)
In the context of climate change, these two stipulations for invoking the national concern doctrine can be reframed, and answered with the following two public policy statements. First, climate change poses a genuine threat to national interest. Second, solutions confined to matters of local or private nature would not be sufficient to tackle climate change.
Climate change is a daunting global challenge with a deadline. In October 2018, the United Nations Intergovernmental Panel on Climate Change (“IPCC”) put forward that deadline. In order to limit global warming to 1.5 degrees Celsius, global emissions of carbon dioxide would need to be reduced by 45% by 2030 compared to the levels in 2010. (IPCC, 2018) Failing to meet the requirement and bucking trend in global rising temperatures would mean extremely dire ecological consequences to the entire planet, and the entire human race by extension. Rising sea levels, reduced food production, extreme storms, extreme flooding, spread of deadly transmissible diseases, mass extinctions of species are all predictable outcomes. (IPCC, 2018) And they translate to tangible and major perils to human’s way of life: our health, our economy, and our habitats.
All countries will be affected. Climate change’s predicted impact on Canada is more than enough to qualify it as the biggest threat to Canada. Canada’s own report on climate change’s impact on Canada, commissioned by Environment and Climate Change Canada and based on the landmark IPCC report in 2018, paints a ghastly picture for the impending repercussions. Canada’s climate has and will continue to warm at twice the magnitude of global warming, indicating a change in temperature of 3-4 degrees Celsius even if the world acts decisively. (Government of Canada, p. 6-7, 2019)
Overall, Canadian marine environment will be irreparably damaged due to more acidic and less oxygenated sea water, causing major disruptions to fisheries and other industries depending on the ocean. Coastal flooding, inland flooding, wildfires and other extreme events will happen more frequently across the country, resulting from rising sea levels, extreme heat and substantial surges in precipitation. Freshwater, a vital resource, may encounter risks of shortages as seasons change. Each Canadian province and region will also face respective life-altering challenges and disruptive events with no exception, as detailed by the report. (Government of Canada, p.6-7, 433-442, 2019)
To coordinate a vigorous global response and facilitate a proposed major shift in how the world structures its economy, the Paris Agreement was negotiated in 2016 with Canada’s participation. Each country put forward a carbon reduction goal, as did Canada, which pledged to reduce its emissions by 30% from 2005 levels by 2030. But not only is that pledge grossly inadequate and disproportional given Canada’s outsized contribution to global cumulative emissions, Canada is nowhere near meeting that pledge with the existing regulations and policies. (MacLean, p.150-151, 2019)
The urgency and time sensitive nature of climate change dictates that the next logical steps for Canada are to readjust its pledge to actually become consistent with the 1.5 degree Celsius goal of the Paris Agreement, and initiate fundamental and aggressive changes to the Canadian economy. And because of the tight carbon budget and the limited time left within the time frame, no province is allowed to dropped the ball, especially the top 5 emitting provinces accounting for 91% of Canada’s total national greenhouse gas emissions. (Government of Canada, 2020) This means that, apart from the expectation that every provincial, municipal and other local jurisdictions must get to work, there is a clear need for national and federal leadership to mandate enforcement to ensure that carbon reduction is a collective effort.
In other words, within our federal system, the federal government’s initiatives at mitigation are indispensable but grossly insufficient. They are jurisdictionally sound, and Supreme Court ruling deciding otherwise would be enable obstructionism and non-compliance at a historically significant juncture of combating climate change and it would be beyond counterproductive.
But the hindrance of the decentralized design of our federal system does not stop there. As the federal government expands its ambitions around its climate change policies to realistically meet its targets, as it should, the familiar model of cooperative federalism in Canada may not be up to the task.
(Un)Cooperative Federalism: A clear misalignment
The pessimism towards cooperative federalism may look unwarranted at first glance. After all, cooperative federalism, the constitutional doctrine and political practice, is a defining feature of modern Canadian politics. Whenever the ambiguous division of powers in the Constitution causes conflicting claims of federal and provincial jurisdictions in a new policy arena, the federal and provincial governments should prioritize cooperation on establishing interactive executive schemes based on federal-provincial mutual understanding, in lieu of abusing the paramountcy doctrine and encroachment of provincial powers. (Redko, 2018)
The model, in which federal government handle the interprovincial and international aspects and the provincial governments focus on local implementation, has worked out arguably well. It is the bedrock upon which that nationwide universal healthcare and the modern welfare state were born, and it is the basis for several regulatory schemes around telecommunications advertising and security interests. Furthermore, it is also the current climate change policy approach of the federal Liberal government. It is easy to assume that applying it to climate change policies should work just fine. (Redko, 2018)
That assumption’s main complication lies with the unique expansiveness of the climate crisis. In the same IPCC report, the United Nations agency states that in order to avert the catastrophic consequences of global temperature rising more than 1.5 degrees Celsius, “rapid and far-reaching” changes need to occur concurrently in “land, energy, industry, buildings, transport and cities”. (IPCC, 2018)
Each of these is critical to Canada’s mitigation efforts. These areas entail enacting more ecologically friendly regulations on agriculture and fisheries; upgrading electrical grid efficiency; retiring high emissions energy-producing assets; limiting industrial emissions; upgrading and retrofitting commercial and residential projects for better energy efficiency; investments into zero emissions public transport and electrical vehicles and many more scientifically recognized best practices. (Aldag, p. 55-58, 2019)
The predicament is that none of them are exclusive jurisdictions in which the federal government can regulate independently. Negotiating with ten provinces simultaneously on all of these could very well be the biggest project in the history of cooperative federalism and naturally time consuming. The provincial government are also in a better position to get the initiatives going on the ground using their powers to govern locally. Whether they would be receptive to cost-sharing initiatives or proposals of joint regulatory schemes with the federal government are another matter entirely, so the federal government appears much more at ease with exercising its spending power to invest in change than concerning itself with provincial jurisdictional work-arounds.
The political reality is that specifics of the Liberal government’s climate action plan beyond the carbon tax and how they would systematically advance their agenda with provincial partners are scarce and sporadic in the public domain despite their pledge for a collaborative approach. It is not difficult to surmise why the Greenhouse Gas Pollution Pricing Act received Royal Assent in 2018, the regulatory reform of federal environmental assessment came into force in 2019, and the government’s plan for everything else has been stalled for so long. (Legislative Services, 2018) (Government of Canada, 2019)
First, the carbon pricing legislation is the most straightforward, most cost effective, and jurisdictionally least convolute option than the other ones that actually require more nuanced, industry specific management and planning. The theory behind carbon pricing is that by internalizing the environmental externalities associated with carbon pollution, the federal government would be able to leverage the power of the “invisible hand” of free market and expect the economy to autonomously adjust to its cost sensitivity and reduce overall emissions. (Aldag, p. 27-29, 2019) But by their own admission, the Liberals recognize that the carbon pricing is only part of the puzzle. (Aldag, p. 23-24, 2019) Actions in the aforementioned six policy areas, both in terms of renewed investments and regulations, are indispensable in meeting the government’s own carbon reduction goal.
Second, the daunting prospect of endless jurisdictional disputes and negotiations is driving the federal government to “pass the buck” to the provinces, regardless of how expansive the federal government can theoretically take the POGG argument and vigorously legislate upon environmental considerations. According to Kathryn Harrison, this type of behaviour has less to do with the true intent behind Canada’s constitutional order, and more to do with the political expediency of being able to “take advantage of jurisdictional uncertainty by ‘passing the buck’ to jurisdictionally defensive provinces.” (Harrison, p.162, 2007)
Provinces and the commitment problem
A major avenue for the federal government’s climate advocacy is in foreign policy. Canada’s active participation and its joint push with the so-called “high ambition coalition” of 15 nations were instrumental to the signing of the Paris Agreement of 2016. Unlike the Kyoto Protocols, from which Canada opted out, the negotiation process of the Paris Agreement delineated the bottom-up approach. The agreement is non-binding, and its power and influence rested with its global norm building. (MacLean, 2018) For Canada to convincingly and credibly nudge other nations towards meeting their pledges, Canada itself must meet its own pledge and bolster the nascent conventions.
Nonetheless, provinces do not do foreign policies. They are not signatories to the Paris Agreement, or any international environmental treaties between nations. Therefore, the provincial governments hold quite a few cards on climate related policies, but should they choose inaction, provincial governments will not encounter a global reputation problem, nor will they be the ones sanctioned or punished for their inaction. As a matter of fact, so far, intergovernmental agreements between the federal and provincial governments, where they operate in parallel jurisdictions, are not even enforceable per the Firearms Reference in 2015. (Supreme Court of Canada, 2015) Provinces could very well not uphold its end of the bargain even after an agreement is reached on climate change mitigation and face no legal consequences at all.
This elucidates two major issues with not just expecting provinces to do the right thing, but also relying on it while rejecting federal authority on a national bottom line. First, provinces have a major commitment problem. Second, provinces with the worst records are also the least likely to embrace aggressive climate actions.
Nowhere is this better reflected in the sporadic track record of provincial climate policies. During former Prime Minister Stephen Harper’s tenure, Canada opted out of the Kyoto Agreement and took few steps to address the climate crisis. In the absence of federal leadership, several provinces stepped up their efforts to curb emissions intraprovince. Some provincial premiers and environmental ministers continued participate in UN conferences even though they were not participating as member states. (Boyd, p.188, 2019)Ontario finished phasing out its use of coal by 2014. British Columbia introduced the first broad-based carbon tax in North America in 2008. Quebec also introduced its own cap and trade regime. From 2005 to 2014, Ontario, Nova Scotia, New Brunswick and Quebec all achieved double-digit percentage reductions. At the other end of the spectrum, Alberta and Saskatchewan, two provinces most dependent on the oil and gas sector, had the largest increases in emissions. (Jordaan, et al., 2019)
It is no coincidence that the two provinces with the highest carbon emissions per capita chose to do very little about it. The logic behind this phenomenon is best encapsulated in this sentence in the Saskatchewan Court of Appeal decision on Greenhouse Gas Pollution Pricing Act. “A GHG pricing system must be able to accommodate the underlying economic and other realities of the circumstances in which it operates.” MacLean finds the reasoning absurd, since the whole point of carbon pricing is to alter how the economy operates. (MacLean, p.166, 2019)
The provinces that chose to take aggressive actions were all lower-emitting provinces. In contrast, Alberta, which accounts for over a third of national emissions, chose not to. Alberta’s reliance on the oil and gas sector made the math of mitigating carbon emissions at the expense of the oil and gas sector very different from provinces where low cost emissions did not matter nearly as much. Boyd distills the main driving force behind the province’s reluctance into one word, “competitiveness”. Alberta faces two main competitions, one from the United States, to which Alberta’s oil and gas export accounts for about a quarter of Alberta’s GDP, and other Canadian provinces, where the local economies could afford shrinking oil and gas sectors while Alberta could not. (Boyd, p.188-189, 195, 2019)
More regulation and a price on carbon introduces immediate competitiveness challenges to Alberta’s oil and gas sector. And because the climate is a public good, Alberta had no way of ensuring other oil-producing jurisdictions would not be free riders and simply take over the oil producing activity that Alberta had shed. This type of climate change policy leakage leads to the least favoured outcome: reduced economic output and no reduction in carbon pollution. (Boyd, p. 190, 2019)
This hypothetical scenario is almost identical to that of a prisoner’s dilemma. The absence of enforceable commitments keep the provinces that are most vital to Canada meeting its obligations from doing so because it stands to lose the most. Compounded by the unfortunate realization that there is also nothing obligating the Albertan government to act a certain way except for the Albertan voters, the provincial policies are likely reluctant at best and a race to the bottom at worst.
Conclusion
As the nation patiently waits for the final verdict from the Supreme Court on the constitutionality of the federal carbon pricing legislation, and the supposed post-COVID grand reveal of the Liberal government’s next climate action plan, it is clear that even after this particular issue of carbon tax is resolved, it is far from the end of the often tautological arguments about jurisdiction. When contrasted with the urgency of the climate crisis and the bold actions that are required to mitigate the impact, it almost seems that much of the current debate about the jurisdiction is less of a reflection of what the Constitution intends, and more of a reflection of pusillanimous and myopic politicking, along with an innate resistance towards vital change.
Our decentralized federalism promotes deliberation, moderation and cooperation. It was never intended for inaction and paralysation. Climate change is a matter of national interest. It is high time that all levels of government treat it with the gravitas that it deserves, and behave accordingly.
Works Cited
Aldag, J. (2019) CLEAN GROWTH AND CLIMATE CHANGE: HOW CANADA CAN LEAD INTERNATIONALLY: Report of the Standing Committee on Environment and Sustainable Development. House of Commons Canada. Retrieved from
Boyd, Brendan. “A Province Under Pressure: Climate Change Policy in Alberta.” Canadian Journal of Political Science, vol. 52, no. 1, 2019, pp. 183-199.
Government of Canada. (2019) Canada’s Changing Climate Report. 9780660302225. Ottawa, ON, CA:. Canadian Electronic Library/desLibris. Absolute Page 1.
Government of Canada. (2020, April 15). “Greenhouse gas emissions”. Retrieved November 30, 2020, from https://www.canada.ca/en/environment-climate-change/services/environmental-indicators/greenhouse-gas-emissions.html
Harrison, Kathryn, et al. (1996) Passing the Buck: Federalism and Canadian Environmental Policy. UBC Press, Vancouver, BC, 1996.
IPCC. (2018). “Summary for Policymakers of IPCC Special Report on Global Warming of 1.5°C approved by governments.” Retrieved November 30, 2020, from https://www.ipcc.ch/2018/10/08/summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1-5c-approved-by-governments/
Jordaan, Sarah M., et al. “The Dynamics of Advancing Climate Policy in Federal Political Systems.” Environmental Policy and Governance, vol. 29, no. 3, 2019, pp. 220-234.
Judicial Committee of the Privy Council. (1896) The Attorney General for Ontario v The Attorney General for the Dominion of Canada, and the Distillers and Brewers’ Association of Ontario [1896] UKPC 20, [1896] AC 348 (9 May 1896), P.C. (on appeal from Canada)
Legislative Services. (2018). Greenhouse Gas Pollution Pricing Act. Retrieved November 30, 2020, from https://laws-lois.justice.gc.ca/eng/acts/G-11.55/FullText.html
MacLean, Jason. (2019) “Climate Change, Constitutions, and Courts: The Reference Re Greenhouse Gas Pollution Pricing Act and Beyond.” Saskatchewan Law Review, vol. 82, no. 2, pp. 147.
MacLean, Jason. “Will we Ever have Paris? Canada’s Climate Change Policy and Federalism 3.0.” Alberta Law Review, 2018, pp. 889.
Redko, O. (2018, January 02). “Cooperative federalism – a division of powers principle to suit every need?” Retrieved November 30, 2020, from https://www.cba.org/Sections/Administrative-Law/Articles/2018/Cooperative-federalism
Supreme Court of Canada. (1988) R. v. Crown Zellerbach Canada Ltd., 1988 CanLII 63 (SCC), 1 SCR 401
Supreme Court of Canada (2015). Quebec (AG) v Canada (AG) 2015 SCC 14, retrieved from https://www.canlii.org/en/ca/scc/doc/2015/2015scc14/2015scc14.html