The Federal Role in Carbon Pricing

An Argument in Favour of the Greenhouse Gas Pollution Pricing Act as a Valid Exercise of Canadian Federal Constitutional Jurisdiction.

Written by Theresa McClenaghan

When I was about 11 years old, living on a Trans-Canada pipelines natural gas compressor station in southwest Saskatchewan, I had a debate with my Dad.

The global oil shocks of the 1970’s had just occurred, and I said that I was very concerned that grown-ups were going to use up all of the oil and gas and leave nothing for us kids for when we were adults.

He responded that he was confident there would always be lots of oil and gas; smart geologists would find more; and smart engineers would come up with new technologies for energy supply.

Little did I know then that I was on a trajectory to become an environmental lawyer; nor that he would turn out to be more right than even his bosses knew at the time.  

I didn’t know then that we’d today be arguing about needing to leave much of that oil and gas in the ground, rather than allowing the greenhouse gas emissions from its burning to add to the levels of carbon in our atmosphere.

I didn’t know then the words “intergenerational equity”, and I certainly didn’t know then that the intergenerational equity issue of our time would centre around a climate emergency.

My childhood demonstrated that we are connected to global events, and that our Canadian energy economy is completely interconnected across the country.  Alberta natural gas reached markets across Canada by coursing through pipes located metres from the houses I grew up in, through Saskatchewan, Manitoba and Northern Ontario on its way to Toronto and Montreal.

The decisions to finance exploration and development of the gas resources, as well as the infrastructure to get it all to markets, were then primarily made on Bay Street in Toronto and internationally, worlds away from the prairie and northern bush environments I saw right outside of my door.

A lot has changed since then.

Since then, we’ve negotiated binational and international treaties on many critical issues affecting our planet’s health like acid rain, toxic pollution, fisheries – and climate change.

We have learned that environmental issues, including climate change, affect the most vulnerable among us, whose homes and livelihoods are the most jeopardized with crop failures, melting permafrost, rising sea levels, horrific storms, the spread of invasive species, pathogens and insects, changes to natural cycles, and unprecedented heat events.

We have a collective interest in protecting our natural environment for our own well-being and for the rest of the planet’s ecosystem.  Science overwhelmingly assures us that dealing effectively with the climate emergency is imperative.

All Canadian governments – Federal, Provincial, Municipal and Indigenous – must have the jurisdiction to act to protect their residents and the entire ecosystem on which all of us depend.

The “environment” is not assigned as a specific head of power under the Constitution Act of 1867.  Like “health” and other common concerns, “environment” crosses many constitutional topics. And accordingly, the authority to act can be found under multiple plenary, specific, and residual heads of power. 

Over the years, CELA has intervened in many cases to argue in support of Municipal, Provincial and Federal jurisdiction to act in order to protect the environment.

In the references that were sent to some of the provincial Courts of Appeal, and now headed to the Supreme Court of Canada, CELA argues that the current Greenhouse Gas Pollution Pricing Act falls under the criminal law head of power in the Canadian constitution.  Its aim is to reduce emissions of greenhouse gases in Canada. It contains prohibitions on emitting greenhouse gases by industrial emitters unless they register and pay charges, prohibitions on important or selling specified fuels without paying the specific charges, and penalties to ensure compliance.  Criminal law is one head of power that justifies federal action when the intent of Parliament is to address an “evil” – prior such cases have dealt with firearms registration, cigarette packaging, and toxic substances under the Canadian Environmental Protection Act.

CELA points out in our submissions to the Courts that the “evil” addressed by the Greenhouse Gas Pollution Pricing Act is the unbridled release of greenhouse gases in Canada and their contribution to the accumulation in the atmosphere at dangerous, planet-altering levels.  There is no question this is a valid criminal law purpose, as is control of pollution generally.

The global community has been attempting to deal with greenhouse gas emissions since the UN Framework on Climate Change in 1992, following the Rio Declaration, and over subsequent decades through Kyoto and Paris.  In the litigation dealing with the Greenhouse Gas Pollution Pricing Law, all of the provinces arguing against the validity of the Act concede that action is urgent.

The time has long passed when voluntary measures or patchworks of non-integrated efforts can adequately address the problem.  We no longer have time for that.  

Accordingly, binding action to address greenhouse gas emissions is a legitimate exercise by the Canadian federal government under the criminal law power just as it was to address emissions of toxic substances in prior cases heard by the Supreme Court, such as Hydro Quebec and Syncrude.

The fact that the prohibition includes charges on emissions does not negate the legitimacy of this use of the criminal law power.  It is open to a government acting within its authority to utilize a range of measures to accomplish the necessary goals. Utilizing market forces such as carbon pricing as a “backstop” to the efforts of the provinces is appropriate as part of a scheme of control based on the criminal law power, as part of the government’s overall strategy to reduce greenhouse gas emissions in Canada.

In the early 70’s, when I was practicing my debating skills with my father, I would have been frightened had I known the trajectory we would take as a global community and at the role that fossil fuels have played in that path.

For the sake of all the 11 year olds around the world today, all of those to follow, and the rest of the planet’s inhabitants, it is critical that we support all of our governments to act with meaningful, effective, binding legislation using all of the tools in our legal toolboxes to reduce greenhouse gas emissions.  

There is no doubt that we collectively have the knowledge, the technology, the resources, and the ability to course correct.

Law is essential to making sure that we do, and the Greenhouse Gas Pollution Pricing Act is a legitimate federal exercise of criminal law power to that end.