The federal government has considerable jurisdiction over environmental issues

This article was written by Anna Johnston and was published in the Toronto Star on July 25, 2023.

ANNA JOHNSTON IS A STAFF LAWYER AT WEST COAST ENVIRONMENTAL LAW ASSOCIATION. SHE HOLDS A MASTER OF LAWS FROM DALHOUSIE UNIVERSITY AND A BACHELOR OF LAWS FROM THE UNIVERSITY OF VICTORIA.

After meeting with Prime Minister Justin Trudeau at the Calgary Stampede, Alberta Premier Danielle Smith trotted out an old horse.

The readout she published following the meeting asserts Alberta’s exclusive jurisdiction over the energy and electricity industries and states that if Ottawa does not back off from its plans to cap industry pollution, Alberta will be forced to resort to “alternative policy options.”

Alternative policy options undoubtedly means unilaterally deciding under the Alberta Sovereignty within a United Canada Act that an oil and gas emissions cap does not apply to provincial entities.

The readout came during the hottest week ever recorded, which followed the hottest June ever recorded. It’s only mid-July, and this summer Canadians across the country have fled devastating wildfires, seen communities choked by smoke, and been issued dire heat warnings. Scientific consensus says it is only going to get worse, and we need to act now if we are to avoid the most catastrophic effects of climate change.

Not only does Smith’s statement ignore climate science at the expense of Albertans’ (and all Canadians’) health, it also ignores constitutional reality.

The federal government has considerable jurisdiction over the environment, including climate. Time and again courts have confirmed that Parliament has authority over things like pollution that crosses borders (as emissions do), interprovincial projects (like pipelines that transport oil to tidewater), and toxins that it regulates through its criminal law power (including greenhouse gases).

Parliament has jurisdiction over an emissions cap through its criminal law power, and the Canadian Environmental Protection Act sets out a legal framework for making cap-and-trade regulations.

If Canada chooses not to wield its constitutional powers, or to apply a light touch, it does so for political, not jurisdictional, reasons. One of Parliament’s jobs is to help maintain national unity, which may include placating premiers who have made their opposition to the federal government well known.

But national unity does not only mean soothing political tempers. The Fathers of Confederation gave Parliament authority over matters affecting Canada as a whole, and matters requiring consistency among the provinces. Sometimes unity means exercising that authority for the good of the country.

The Supreme Court of Canada recognized the need for national unity in reducing emissions when it upheld the federal carbon tax under Parliament’s “peace, order, and good governance” power. As a majority of judges held, if one or more provinces fail to do their part in cutting emissions, it could mean a national failure to adequately address climate change, with “grave extraprovincial consequences.”

The Paris Agreement commits all countries to ambitious climate action as rapidly as possible. Canada has set a target of a 40-45 per cent reduction below 2005 levels by 2030 (which experts say is less than Canada’s fair share of global effort). According to the Emissions Reductions Plan, the oil and gas sector cut its emissions by 31 per cent in order for Canada to reach that target.

The oil and gas industry emits more than any sector in Canada, and its emissions have doubled since 1990, despite promises to reduce them voluntarily. Alberta, too, has the highest emissions of any province, which increased by 55 per cent from 1990 to 2021.

At the COP26 climate summit in November 2021, Prime Minister Trudeau committed to “cap oil and gas sector emissions today and ensure they decrease tomorrow at a pace and scale needed to reach net-zero by 2050.” Nineteen months later, no such cap exists, despite urging by climate experts that a cap is the only viable way to ensure that oil and gas emissions decline as needed for Canada to do its part in the global effort to save the planet.

It is time for premiers to stop brandishing the jurisdictional red herring and start taking climate action. It is also time for the federal government to realize that in this case, national unity demands a stringent emissions cap. As this summer is proving to Canadians, we cannot afford further delay.

Sometimes unity means exercising that authority for the good of the country