Regulating Greenhouse Gases in Canada: Constitutional and Policy Dimensions

By Hsu, Shi-Ling; Elliot, Robin M. | McGill Law Journal, Autumn 2009 | Go to article overview

Regulating Greenhouse Gases in Canada: Constitutional and Policy Dimensions


Hsu, Shi-Ling, Elliot, Robin M., McGill Law Journal


Canada's greenhouse gas emissions have risen dramatically since the 1997 negotiation of the Kyoto Protocol, and that rise has continued through Canada's 2002 ratification of the Protocol. Along with economic dislocation, constitutional barriers to regulation have sometimes been cited as the reason for caution in regulating greenhouse gases. This article critically evaluates the constitutional arguments and examines the policy considerations surrounding various regulatory instruments that might be used to reduce greenhouse gases. We conclude that the Canadian constitution does not present any significant barriers to federal or provincial regulation and that policy considerations strongly favour the use of two instruments: a federal carbon tax to impose a marginal cost on emissions and the Canadian Environmental Assessment Act to review federal projects that may increase greenhouse gases.

Les emissions de gaz a effet de serre du Canada ont augmente dramatiquement depuis les negociations du Protocole de Kyoto en 1997. Cette augmentation a continue meme subsequemment a la ratification du Protocole par le Canada en 2002. En pins de la dislocation economique, les barrieres constitutionnelles a la reglementation ont parfois ete citees comme justification a la prudence dans la reglementation des gaz a effet de serre. Cet article evalue de maniere critique les arguments constitutionnels et examine les considerations de politiques entourant les differents instruments reglementaires qui pourraient etre utilises pour reduire les gaz a effet de serre. Nous concluons que la constitution canadienne ne presente pas de barriere significative a la reglementation federale ou provinciale et que les considerations de politiques favorisent fortement l'utilisation de deux instruments, soit une taxe federale sur le carbone pour imposer un cout marginal aux emissions et la Loi canadienne sur l'evaluation environnementale pour evaluer les projets federaux qui pourraient augmenter les gaz a effet de serre.

Introduction

I. Regulating Greenhouse Gas Emissions in Canada
   A. Potential Regulatory Instruments
   B. Federal Attempts at Greenhouse Gas Regulation
   C. Provincial Experiences with Greenhouse Gas
      Regulations

II. The Constitutional Dimension
    A. Provincial Jurisdiction
       1. Carbon Taxes
       2. Cap-and-Trade and Intensity-Based Trading
          Regimes
       3. Command-and-Control Regimes
    B. Federal Jurisdiction
       1. A Carbon Tax
       2. A Cap-and-Trade or Intensity-Based Trading
          Regime
          a. Criminal Law
          b. The National Concern Branch of POGG
          c. The National Emergency Branch of POGG
       3. A Command-and-Control Regime
       4. The Canadian Environmental Assessment Act
    C. Summary

III. The Policy Dimension
     A. The Canadian Environmental Assessment Act
     B. Cap-and-Trade vs. Intensity-Based Emissions
        Trading
     C. Carbon Taxation vs. Cap-and-Trade
     D. Command-and-Control Regulation

Conclusion

Introduction

In a 2007 speech to the Canadian Bar Association, former Alberta Premier Peter Lougheed warned of an impending constitutional crisis over the regulation of greenhouse gases. A "major constitutional battle" was brewing between the federal government, which faces increasing international and domestic pressure to regulate the emissions of greenhouse gases, and the government of Alberta, which jealously guards its provincial prerogative to oversee emissions-producing oil and gas development. (1) "Public pressure", in Lougheed's view, was likely to "force the passage of strong federal environmental laws," while the economic forces driving oil sands development were likely to lead to resistance from Alberta in the form of conflicting legislation. (2)

Is there really a constitutional storm on the horizon? Although there is tension between federal and provincial authority over the regulation of Canadian greenhouse gases, this tension need not and should not be an obstacle to sensible greenhouse gas regulation.

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