The feds’ control over climate policy is alive and well

Over the past few days, the Alberta and Saskatchewan premiers and some western leaders have gleefully declared that the Supreme Court of Canada’s recent decision about the federal Impact Assessment Act (or IAA) has curtailed federal power to regulate greenhouse gas emissions.

In fact, the court did no such thing.

Ottawa still has ample authority to assess the environmental impacts of major projects, like oilsands facilities and pipelines, and to bring in new climate regulations, like the proposed ones for clean electricity and oilsands emissions.

To understand why, let’s look at what the Supreme Court said — and didn’t say — in its judgment and what it means for future federal climate regulation.

The court did strike down certain key parts of the IAA because they were drafted too broadly and exceeded federal powers (more on that below). But in doing so, it also reaffirmed 35 years of jurisprudence establishing that Ottawa has broad authority to make laws about the environment and climate change, as long as it stays within its constitutional limits, which it normally does.

This was an advisory opinion — the court didn’t strike down the law. But no doubt, Parliament will revise the IAA to follow the court’s advice, which should not require major changes.

Further, the court’s opinion was only about the IAA; it did not question the federal government’s overall constitutional power to regulate greenhouse gas emissions (GHGs). Yet Alberta Premier Danielle Smith nevertheless proclaimed that the “court decision significantly strengthens our province’s legal position” that proposed new federal climate rules are “unconstitutional.”

Another non-lawyer, Marla Orenstein of the Canada West Foundation, writing in a national newspaper, similarly concludes that: “The Supreme Court … has fairly clearly drawn a boundary, which it appears the [Clean Electricity Regulations] would fall outside,” as well as the “proposed oil and gas emissions cap.”

But her sweeping conclusion is based on just one line in the court’s decision and ignores the broader jurisprudence about federal authority over the environment and GHGs.

The court said Parliament’s constitutional power over “matters of national concern … does not extend to enabling the federal government to comprehensively regulate greenhouse gas emissions.”

That is hardly a surprise; the court said the same thing in its 2021 decision upholding the federal carbon pricing law. The upshot is the “national concern” power in the Constitution does not give the federal government complete authority to assess and regulate GHG emissions from all types of activities; the IAA must be revised and tied to areas of federal environmental responsibility, including over GHGs.

But last week’s decision does not affect federal authority to regulate GHGs under other heads of constitutional power or other statutes. In particular, most federal climate laws — including the proposed rules about clean electricity and oilsands emissions — are made as regulations under the Canadian Environmental Protection Act (CEPA).

The Supreme Court has explicitly upheld CEPA as constitutionally valid legislation, falling under the federal power over criminal law (which is not the same as the Criminal Code, but that is another story).

Ottawa can also regulate GHGs under CEPA; in 2016, the Federal Court of Appeal ruled federal regulations for low-carbon fuels, made under CEPA, were constitutionally valid under the criminal law power.

Indeed, Alberta conceded that “[t]he federal government can regulate GHG emissions through the proper exercise of its enumerated powers – such as over the criminal law” in its written argument to the Supreme Court in the carbon pricing case.

And Saskatchewan made a similar concession, saying, “Parliament has ample constitutional powers ... to address climate change. For instance ... through the criminal law power.” (Apparently, the premiers didn’t read their counsels’ legal submissions!)

The Supreme Court judgment said nothing that changes the federal government’s well-established authority to regulate GHGs and other harmful pollutants under CEPA using its criminal law power — which is the basis of most federal climate laws.

So, the federal government is still on pretty solid constitutional ground in moving forward with legislation to tackle climate change and prepare Canada for a low-carbon global economic future as long as it drafts the laws carefully to stay within its powers.

The western premiers and certain leaders seem determined to fight those efforts, particularly as they relate to oil and gas.

Fair enough.

But it is important not to confuse their political advocacy with what the Supreme Court actually said.

Most of all, let us hope that both federal and provincial leaders pay attention to what the court said at the end of its judgment, encouraging both levels of government “to exercise their respective powers over the environment harmoniously … seeking co-operative solutions that meet the needs of the country as a whole,” as we have seen happen with other complex federalism challenges.

Stewart Elgie is a professor in the University of Ottawa’s Faculty of Law. He has published and taught about constitutional law and the environment, and successfully litigated major cases on this issue in the Supreme Court of Canada (but he was not involved in the IAA case).