Climate Policy & Canadian Federalism: Angsty Teenager Provinces Killing Environmental PolicyPosted: June 24, 2024

This was an essay I wrote in Q1 2021, it has small modifications for clarity and updating to current events

Intro

Climate change remains a contentious topic of discussion in contemporary society, especially as it relates to the field of politics. More and more, humans are facing ecological disaster and answering for millennia of environmental destruction. Failure to resolve climate change will result in our extinction. Therefore, it is imperative to take climate change seriously. However, governments around the world, including in Canada, have had a terrible track record when it comes to dealing with climate change policy. Why is this the case in Canada? Unfortunately, it remains beyond just climate denial fuelled by entities such as the Koch brothers and lies within the very political system in which we are currently engaged. Our failure to deal with climate change and environmental destruction is partially due to our current model of federalism, the backbone of our political system.

Using case studies in natural resources and emissions regulations, this paper argues that Canada’s decentralized federal system has failed to create and facilitate meaningful environmental policy. In particular, our culture of decentralized federalism prevents the federal government from superseding provincial interests, resulting in a weaker form of environmental policy than if the federal government was able to take charge more comprehensively.

Part 1 of this paper introduces Canadian Federalism. Part 2 explains the tension between federalism and environmental policy. Part 3 uses two case studies in natural resources to demonstrate that the federal government’s requirement to meet provincial interests has weakened environmental policy. Similarly, Part 4 uses a three-part study in regulating emissions to demonstrate that political rivalries demand the necessity of federalism permitting federal government interference. Finally, Part 5 discusses the possibility of moving beyond current circumstances that see Canadian federalism negatively impacting environmental policy.

Part 1: Introduction to Federalism

A distinctly Canadian understanding of federalism originates from the historical context of Canada’s Confederation. Despite their varying geographical differences, the colonies in British North America had a shared interest in preventing American invasion and dominance which resulted in the 1867 confederation (Bakvis and Skokstad, 2020). Our confederation included the creation of our constitution, dubbed the British North America Act (BNA Act) in acknowledgement of our founding status being a British Dominion.

The Canadian Founding Fathers were afraid that a weak federal government would be unable to garner enough unity to protect itself from foreign threats. Consequently, Section 91 of the BNA Act (POGS) provides the federal government the power “to make Laws for the Peace, Order, and good Government of Canada” (qtd Scott, 2018; Constitution). 1 However, in recognizing Canada’s geographical diversity, the Founding Fathers set up as our federalist system from an interstate perspective. Peter Hogg defines this form as federalism as when “every individual in the state is subject to the laws of two authorities, the central authorities and the regional authorities” (qtd Fusco, 2019). Hence, the BNA Act calls for a division of powers between the provincial and federal government (Fusco, 2019). Notably, to further protect national interests, the Founding Fathers instituted the notion of ‘Residual Powers’: any ‘new’ powers belong to the federal government (Bakvis and Skokstad, 2020).

Bakvis and Skokstad describe Canada’s interstate federalism as “watertight compartments” (Bakvis and Skokstad, 2020). The two ways to understand interstate federalism are self-rule and shared rule. Jorg Broschek notes that most federalist states tend to favour each level of government independently operating through self-rule, “…with the need to collaborate [with other levels] through shared rule…” (Broschek, 2020) when necessary. However, Canada is unique in the sense that its federalism places an abnormal emphasis on self-rule within the provinces. The constitutional bias of powers being in federal hands (i.e., residual powers and POGs) means that provinces have had to constantly lobby for greater jurisdiction. This, however, means that as the provinces have gained more power, federal involvement increasingly appears to be viewed as authoritarian and oppressive (Broschek, 2020; Khan, 2019). Hence, we have seen increasing decentralization within our government.

Part 2: Federalism in Relation to the Environment

A critical aspect in relation to federalism is the environment. Climate change is a subject of substantial importance in today’s society even though it is a relatively recent phenomenon. The political demand for environmental protection arose out of a global realization, notably the 1992 Rio Declaration, in that the environment was connected to very pressing social and economic issues (Bélanger, 2011). Canada has a vested interest in protecting the environment due to having the world’s largest concentration of freshwater, approximately 10% of the world’s forests, and stunning landscapes throughout the country. Moreover, going green creates millions of more jobs than “legacy” industries, reduces our burdening on the health care system, outpaces current economic growth, wins young voters and will result in economic competitiveness in an already transitioning green world.

The obvious incentives for environmental protection raise the question as to Canada’s failure to implement meaningful climate policy. Federalism is one of the contributing causes to this failure. Before explaining how federalism has negatively shaped Canadian environmental policy, it is first necessary to show the environment’s problematic position within our current political system.

Environmental powers have a complicated position in our decentralized federalist system.

Despite the environment falling under both provincial and federal jurisdiction, it is not clearly defined what powers belong to which level of government. Specifically, Justice Laforest characterizes the environment as a “constitutionally abstruse matter…” (qtd Maclean, 2018) that fails to fit neatly within our division of powers. Some scholars further observe that the holistic nature of the environment is incompatible with federalism’s inherent segmentation (Bélanger, 2011; Millimet, 2013). This tension is evident in the the courts’ failure in deciding under whose jurisdiction “climate change” falls, thereby increasing uncertainty relating to the legal basis of taking climate action (Scott, 2018; Maclean, 2018). Importantly, despite the fact that climate change is a residual power (i.e., in the hands of the federal government), scholars note that shared jurisdiction makes it difficult to determine if it can be indeed seen as such (Khan, 2019; Scott, 2018).

Despite this lack of clarity, the courts have clearly defined the division of some environmental areas. For instance, they have ruled provincial control over natural resources and federal control over the oceans. It is important to note that many of these areas overlap with one another, causing confusion. For instance, Reeba Khan from the University of Toronto writes that “…the federal government can enter international environmental treaties, yet the provinces hold control over areas which are critical to the treaty’s enactment, like natural resources, energy, and local economies” (Khan, 2019). In reality, this means that implementing treaties is in vain since ‘real change’ often requires provincial will, which tends to conflict with federal interests (Khan, 2019; Maclean, 2018; Bélanger, 2011).

It is clear that the relationship between the environment and federalism is strained. But the question remains: why has Canada failed at environmental policy? Constitutional experts note that the federal government, which has often been on the ‘right side’ of climate policy, has the authority to supersede the provincial government if it serves national interests (Baier Chapter 4; Hawke 2002; Maclean, 2018; Star Editorial Board, 2020). Remember, however, that Canada’s federalism values self-rule. Federal attempts to take charge are essentially political suicide and often result in clashes with provincial governments over environmental policy. Belanger cites author Barry Craig who notes that since federal policy requires provincial cooperation, it tends to be that “…every province has its price and that you can buy them off” (qtd Belanger, 2011). Provinces lobbying for more power have extended their ambitions towards the environment, resulting in the provinces getting control over areas such as mining, natural resources, public lands, some taxes, parks, zoning, amongst other sectors of important economic value (Constitution).

In short, the feds have to constantly meet the demands of provinces, which has resulted in the environment has become more decentralized in our legal system. However, as we see throughout the rest of this essay, this federalist principle of provincial autonomy is largely responsible for weakening (or even killing) our national interests of fighting climate change.

Part 3: Case Studies in Natural Resources

The geopolitical uniqueness of each province often results in provincial interests conflicting with the federal government. This conflict of interest expands to the environment, especially with respect to Alberta’s view on climate change. As previously stated, conflicts of interest can create tension in environmental policy since the environment is shared jurisdiction. This section uses two cases in natural resources to illustrate how this conflict between the federal and provincial governments weakens the possibility of meaningful environmental policy.

Alberta vs. Trudeau (AVT)

Federalism’s prioritization of self-rule means that provinces can hold meaningful environmental progress hostage unless their own regional related demands are met. However, meeting these demands often results in poor environmental policymaking. This is demonstrated in the AVT case. Alberta is known for its fossil fuel industry (Macdonald et al, 2015). While responsible for 30% of Alberta’s GDP, its benefits are better felt nationally, contributing $78 billion to our GDP annually and “support[ing] more than 500,000 jobs across the country in 2019” (Canadian Association of Petroleum Producers; Government of Canada). Per federalism, Alberta Premier Rachel Notley had full control over such natural resources in 2015.

Notley’s desire for pipelines to be built in Alberta to protect its fossil fuel industry conflicted with Trudeau’s federal environment-related policies. The federal government planned for unilateral climate action which partially took the form of provincial participation in emissions trading (Maclean, 2018; Macdonald et al, 2015; Winfield and Macdonald, 2020). In response, Alberta threatened mutiny unless the Trudeau government did not protest a pipeline. The federal government gave into Alberta’s demands.

Alberta’s resistance and the federal government’s concession may be seen as a reasonable conclusion from a federalist perspective. For one, research shows that successful environmental policy requires transitioning from fossil fuels to a green economy (i.e., renewables). This evidence is the basis of Trudeau’s Pan-Canadian Framework that calls for the development of a low-carbon economy. It follows that the strongest climate plan requires the absence of fossil fuels (Winfield and Macdonald, 2020; Newburger, 2020; Johnson, 2018). However, it makes sense for Alberta to protest this transition since it would inevitably harm their fossil fuel industry, which accounts for 30% of their GDP. Ironically, going for a just transition plan would result in dirt cheap energy2 – bringing in at least 66% more jobs than the fossil fuel industry, reduce air pollution costs, reduce burdening on the health care system and make Alberta (and Canada) a leader in the emerging green economy. Notwithstanding these benefits, however, giving in to Alberta’s demands indicates that the federal government respects and values Alberta’s autonomy to make their own decisions— perhaps more than their own ambitions to tackle climate change.

Nevertheless, this sort of conceding has weakened environmental policy and is a symptom of problems inherent to Canadian federalism. The central point is that the federal government did not have to meet Alberta’s demands for their unilateral climate plan to succeed. Alberta demanded a pipeline that extended beyond provincial boundaries, which would have transferred jurisdiction over the pipelines from the province to the federal government and given Trudeau the ability to refuse Alberta’s demands and still enforce their climate policy (Winfield and Macdonald, 2020; Pipelines and the Constitution, 2016). However, they were unable to do so since it would violate the federalist norm of provincial self-rule, resulting in political suicide (i.e., the central government would be seen as tyrannical). Alberta was able to take advantage of our decentralized federalist norms to maintain Big Fossil Fuel’s agenda at the cost of harming our health, economic competitiveness and our survival as a species.

The AVT case demonstrates that the political requirement to respect provincial interests as per federalism has weakened environmental policy. Federal interference should be accepted rather than de-facto forbidden since ultimately, Alberta is a part of – not independent from – Canada. In other words, national interests are the priority since they impact the entire country in contrast to narrow, locally focused provincial interests. Federalism lacking this emphasis on provincial self-rule would have likely rendered acquiescence to Alberta moot.

Kyoto: Alberta v Chrétien (AVC)

The AVC example demonstrates that, despite natural resources being a provincial designation, the federal government’s inability to interfere in provincial matters has led to poor environmental policy. The Kyoto Protocol, which was considered revolutionary at the time, aimed to advance environmental policy “by committing industrialized countries and economies in transition to limit and reduce greenhouse gases (GHG) emissions in accordance with agreed individual targets… [; also ensuring] countries [bound] are to adopt policies and measures on mitigation and to report periodically” (UN Climate Change). Prime Minister Chrétien was excited by Kyoto since it would solidify his legacy as an environmental champion (Benger, 2016). Consequently, his administration ambitiously decided to commit to a 6% reduction in 1990 GHG levels by 2008-2012 (Stillborn, 2003; Benger, 2016; Macdonald et al, 2015). Notably, his decision to go ahead with the Kyoto Protocol won him back support from Quebec who were heavily invested in hydroelectricity (Benger, 2016; Stillborn, 2003).

However, as one may expect, Chrétien faced a new, but likely, obstacle: Alberta. Initially, the Albertan government launched a campaign against the Prime Minister, declaring that they felt betrayed that the federal government went behind their backs in signing Kyoto. The only way Alberta would support the Kyoto Protocol is if the federal government ensured protection of the all-powerful Big Fossil Fuel (Stillborn, 2003; Salomons and Parkins, 2018; Benger 2016). To make matters worse, Alberta’s demands inspired other provinces to protest in favour of their demands, which halted any progress for ratification from 1988 to 2001 (Stillborn, 2003; Benger, 2016). However, the federal government managed to appease the provinces, except for Alberta.

Alberta’s 2002 campaign ultimately killed the Kyoto Protocol. Prior to explaining how, it is imperative to provide some context. Scholars note that federal, national, and international pressure resulted in public consultations in Alberta to at least consider accepting the Kyoto Protocol (Salomons and Parkins, 2018; Benger, 2016). However, the Albertan government and fossil fuel companies remained staunchly against the Kyoto Protocol. Consultation participants were problematically mostly made up of fossil fuel representatives who, along with the government, aimed to convince Albertans that any ‘greenification’ would kill Alberta’s economy – despite such a claim being evidently false given the economic costs of climate change and the benefits of going green (Khan, 2019; Salomons and Parkins, 2018; Benger, 2016; Stillborn, 2003). The battle between the federal government was likened to David vs Goliath (Benger, 2016). One anonymous government minister sums it all up as “Alberta was vocal in its opposition to ratifying the Protocol and undertook an initiative to call for an alternate solution to climate change that was ‘made in Canada’” (qtd Salomons and Parkins, 2018).

Why did Alberta’s staunch resistance kill the Kyoto Protocol? Federalism is the culprit. For one, despite the fact that treaty ratification is done by the federal government, treaty implementation is often in the hands of the provinces. This was the case for the Kyoto Protocol – Albertan cooperation was necessary to realize Chrieten’s environmental vision. A 6% reduction would have harmed the fossil fuel industry, which is legally within Albertan jurisdiction over natural resources (Macdonald et al, 2015; Salomons and Parkins, 2018; Benger 2016). As a result, the Chretien government ratified their Kyoto Protocol targets insofar that they did not harm the Albertan economy (Macdonald et al, 2015; Benger, 2016).

Appealing to Alberta, however, meant that the Kyoto Protocol was doomed to fail in Canada since it lacked realistic and tangible methods to achieve such ambitious targets without Alberta’s cooperation3 (Macdonald et al, 2015; Benger, 2016; Salomons and Parkins, 2018). Chrétien himself knew this and ratified it anyway to maintain his legacy with the intention of leaving the specifics for the next Prime Minister to handle (Benger, 2016). As such, the Harper Government faced the same issue of having to meet the 6% reductions without harming Alberta’s fossil fuel industry. Ultimately, the Kyoto Protocol was a failed opportunity for Canada to take serious climate action.

The AVC case similarly demonstrates the issue of the legal requirement to abide by provincial interests as per our decentralized system. Within our federalist system, only the provinces have control over natural resources. This is problematic since the federal government is unable to interfere with provincial powers. The federal government should be able to use emergency powers to interfere and override provincial jurisdiction when it comes in respect to national interests (and emergencies) such as climate change. However, the clause permitting federal interference (i.e., POGS) is practically rendered moot since as previously stated, interfering with the provinces is considered political suicide. Thus, the AVT and the AVC cases have demonstrated that the political and legal requirements for the federal government to meet provincial demands have tangibly resulted in poor climate policy.

Part 4: Ford v Trudeau (FVT) Emissions

This section examines emissions regulations as they relate to: (i) Conservative mutiny with respect to federal environmental policy; (ii) the province’s ability to use the autonomy principle to their advantage by refusing to comply with the federal policy; and (iii) the inability for the federal government to interfere with provincial areas of jurisdiction. Overall, this section argues that political rivalries necessitate the need for federal interference to yield stronger environmental policy.

Part 1: A General Glimpse in the Issue – Conservative Mutiny & Federal Interference

Trudeau’s government promised to take national leadership by fighting climate change, “… put[ting] a price on carbon, and reduc[ing] carbon pollution” (qtd Maclean, 2018). The federal government subsequently used their environment and taxational powers to introduce the Pan-Canadian Framework (PCF) which aimed to reduce national GHG emissions (O’Riordan, 2018). The Prime Minister wanted to begin with a nation-wide carbon market system that would price carbon in order to incentivize a shift to renewables by punishing polluters. This unilateral plan called for an initial price of $50 per tonne, which would increase every year up to $200 per tonne by 2030 (Maclean, 2018; Winfield and Macdonald, 2020). This was considered a reasonable starting point since it complied with scientific research on reducing GHG emissions (Maclean, 2018). To ensure that Trudeau respected provincial autonomy, provinces could maintain their own carbon system so long they met these basic requirements along with other guidelines (Maclean, 2018; Winfield and Macdonald, 2020; Tasker 2016). Otherwise, they followed a federal carbon tax system that would have yielded similar benefits compared to pricing carbon.

While many progressive provinces4 wholeheartedly embraced carbon pricing, the Conservative provinces resisted by claiming that federal intervention would harm their autonomy (Brook, 2019). It is likely that the Conservative and Liberal rivalry was the primary reason that the Conservative provinces resisted the PCF, and autonomy was merely used as a scapegoat. The Conservative mutiny arose out of these political clashes.

Trudeau likely had no choice but to appease the Conservative provinces since too much mutiny would kill the possibility of a green economy. He did this by lowering the minimum price to a deplorable $10 (Maclean, 2018; Winfield and Macdonald, 2020) Trudeau, although within his rights, could not force provincial compliance since he would have been viewed as a tyrant as per federalism’s principle on self-autonomy. Although progressive governments still implemented strong policy (e.g., BC set an initial price of $40), the Conservative mutiny effectively weakened Canada’s overall ability to fight climate change – carbon pricing was practically useless. This was a shame, especially since when one looks at the Western Climate Initiative, the cap-and-trade system between California and Quebec not only significantly reduced emissions, but also is responsible for $1 billion for Quebec in 2019 alone (La Fleche, 2020; Wincele, 2019). Hence, political clashes between Conservative provinces and the Liberal ‘Feds’ resulted in the former taking advantage of federalist norms to weaken environmental policy. Federalism permitting federal interference would have prevented petty politics from harming meaningful climate action.

Part 2: Doug Ford’s Mutiny

As a Conservative, Ford’s personal beliefs and party policy towards addressing climate change are inherently more anti-environment than the progressively driven Liberals and NDP. Although Ford was elected post-PCF creation, his Conservative party politics towards the PCF demonstrates that federalism’s abnormal emphasis on provincial autonomy has significantly weakened Canada’s overall efforts to fight climate change.

Ford took an ultra-Conservative approach upon his takeover by first withdrawing from the PCF’s carbon pricing system whilst also claiming that he would not engage in the alternative carbon tax (Star Editorial Board, 2020). He launched a lawsuit against the federal government to fight carbon pricing which cost Ontario taxpayers over $30 million. Ironically, despite Ford’s promises to protect small businesses, his withdrawal cost them thousands since many had already committed to cap and trade under the Wynne administration (The Canadian Press, 2018; Walsch, 2018).

Ford’s ability to use our federalist principle of self-autonomy to totally circumvent Trudeau’s climate plan is exactly why federalism needs to permit federal interference when necessary. Rather than forcing Ford to comply with the PCF, the federal government played safe by merely condemning him (Valiante, 2019).

Despite the federal government’s authority to force unilateral action5 (Maclean, 2018; Belanger, 2011; Khan, 2019), they were unable to do so since it would have violated the federalist norm of self-rule, making Trudeau appear like a dictator. Ford’s extreme actions remind us that regardless of who is Premier, national interests ought to transcend petty party-towing feuds. These political clashes therefore necessitate federalism to reduce its emphasis on provincial autonomy, thereby increasing centralization in order to better fight climate change – circumventing Conservative mutiny by forcing unilateral carbon pricing or at the very least properly addressing mutiny.

Part 3: Deplorable Provincial Policy

Ironically, Ford aimed to target a younger demographic by promising a climate plan that avoided ‘unnecessary’ carbon taxes. Consequently, the “Made in Ontario” program promised to focus on ‘real climate solutions’ such as cleaning up waterways, avoiding sending food to landfill, diverting waste and cutting regulatory red tape to promote sustainable markets (Government of Ontario). Unfortunately, Ford’s refusal to ‘play ball’ with national climate policy was the tip of the iceberg since federalism’s division of environmental powers enabled Ford’s war on the environment. Ultimately, Ford’s application of problematic Conservative ideology to environmental policy demonstrates that despite the division of powers, federalism needs to permit federal interference in provincial matters.

First, Ford revoked many green subsidies that have been proven to incentivize green behaviour such as using electric cars and green real estate practices. In fact, electric car sales dropped by 55% as a result of Fordian policies. Second, he cancelled more than 700 green projects such as removing electric car chargers, a program that would have planted 50 million trees, and cutting $3.7 million from Conservation authorities. Third, he eliminated incentives, funding, and programs that ensured a transition to clean electricity. Fourth, he rewrote planning rules to favour developers at the cost of environmental preservation, weakened protections for endangered species, repealed the toxic reduction legislation, returned to outdated ways of counting water pollution, weakened mining operations, and more (Lysyk, 2019; Benzie, 2020; Jeffords, 2020).

To make matters worse, all of these deplorable acts were committed within Ford’s first year, and the list keeps on growing – a full run-down of all environmental misdoings would take up far too much of this paper. Both the Ontario Auditor General and Environmental Defence slammed the Ford government for their actions and found that their plan will not even come close to 2030 targets (Lysyk, 2019; Jeffords, 2020; Crawley, 2019)6. Compared to other provinces, Ontario remains in a deplorable state of affairs. Quebec’s huge investment in hydrogen energy and Nova Scotia’s early work in recycling economies make Ontario look like an ancient dinosaur. Indeed, even ‘Big Fossil Fuel’ Alberta is committed to hydrogen (Lagerquist, 2021; Johnson, 2020).

The worst part of it all is that federalism permitted all of these actions. Constitutionally, Ford has full control over these areas and the federal government has no choice but to watch as he continues to undermine our national interests in fighting climate change. As we know, the federal government is unable to use their constitutional authority7 to override the provinces when it comes to such problematic behaviour. It is evident that by examining other political parties that this destruction only occurred because of Conservative Party politics. Regardless of who is in power, the provincial government ought to be environmentally responsible; however, this case study demonstrates that provinces cannot be trusted since party-policy can easily interfere with national interests.

Environmental dangers will not go away, regardless of political ideologies, which means that our national interests are to always remain a priority. For these reasons, federal interference needs to be an accepted component in our decentralized federalism.

Part 5: Can We Move Forward?

Part 1: Division of Powers

Notwithstanding the need for federal interference in our federalist system, the conflicts outlined in this paper could have been mitigated or even avoided in our ‘shared system’ if the courts had caught up with respect to the environment’s current position in today’s world.

First, environmental protection needs to be constitutionally entrenched independent of climate change. Even if we ‘stop’ climate change, historical records from the Viking’s destruction of Iceland to our current climate crisis have taught us that environmental ignorance is our ultimate doom (Branfireun et al, 2014). Constitutional entrenchment of environmental protection would prevent problematic provincial governments from taking advantage of the federalist norm of autonomy to weaken environmental policy. Any sensible provincial government is unlikely to violate the highest law in the land (the constitution). With these changes, Alberta’s fossil fuels and Ontario’s cancellation of tree planting would violate the principle of environmental protection.

Second, it follows that climate change has to be defined by the courts since it is an international emergency that threatens all species on Earth. Theoretically, if climate change were defined as a distinct international emergency, it would likely fall under the federal government as a residual power. However, the court’s current lack of defining climate change and its many effects will continue to confuse environmental policy efforts since it could also be argued that climate change enjoys shared jurisdiction. For instance, it is currently unclear whether the effects of Arctic melting will result in either: (a) total federal jurisdiction, since it is a residual power caused by the residual power of climate change; or (b) shared jurisdiction, since melting will impact federal and provincial areas of jurisdiction.

Further, consider the FVT case study. Ford’s actions are hindering Canada’s overall ability to fight climate change – Ontario is part of Canada. Even if federalism dictated that climate change was under shared jurisdiction, Ford’s actions would still be inconsistent with the constitutional principle (and power) of fighting climate change. If climate change was defined as a power in the constitution, Ford would have likely been prevented from using federalism to his advantage in order to circumvent the federal government’s PCF.

Notwithstanding the need for federal superiority, well-defined powers lead to smoother discussions and negotiations. This outcome would be preferable to the political drama currently underway in Canada’s political system.

Part 2: Establishing Federal Superiority

Even if the courts caught up to climate change, provincial actions have repeatedly demonstrated that federal interference is necessary to maintain our national interests of fighting climate change. Throughout this essay, I have stated that the federal government has the constitutional authority to override provincial will. How exactly would they do this? Section 91 of the Constitution, also known as the POGS clause, gives the federal government power to make laws for our national interests. While federalism states that powers are legally protected within their appropriate jurisdiction, the federal government has two ways that they can use POGs to override problematic provinces.

The first method is the Emergency Branch which was recognized by the Privy Council in 1923 (McKay Panos, 2020). The Emergency Branch calls for certain criteria to be met in order to be enacted: legislation must be temporary, there must be an evident crisis, and it must be an emergency (McKay Panos, 2020; Re: Anti-Inflation Act, 1976). The feds could certainly take this approach for climate change since it is recognized by the United Nations as the international emergency (United Nations). The fact that climate change was first internationally recognized in the 1992 Rio Declaration means that Chretien, Trudeau and others could have likely successfully used the Emergency Branch to prevent provincial rebellion (e.g., Alberta). However, such a route would likely only be beneficial for addressing this ‘emergency type’ climate change and post-climate recovery rather than ‘normal’ environmental affairs.

The second method is the National Concern Branch which was primarily established by a 1988 Supreme Court Decision. The National Concern similarly calls for the legislation to be temporary but is meant for new matters that arise such as climate change, climate refugees, and also for those that are originally of a provincial nature (McKay-Panos, 2020). To be considered of national concern, a matter

“must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution” (qtd McKay Panos, 2020).

The federal government may have greater leeway with this second approach since national interests are broader than emergencies. The federal government could easily step in with regards to provincial powers that are still of concern but are not full-blown emergencies. For instance, the feds could appeal to the risk of worsening air quality and human health, rather than climate change, to stop fossil fuel development. One could argue that the federal government has a distinguishable interest in ensuring a universally clean environment that spans from coast to coast and preventing another climate disaster that will threaten our extinction. Provinces are unable to see beyond their own borders, whereas the federal government is inherently able to consider the big picture.

While both methods limit federal interference to be temporary, I believe this to be a non-issue. Provinces who have grown used to their autonomy in our decentralized system are likely to be motivated to be proper environmental stewards if they know that the federal government is willing to step in. Yet, there remains an overarching problem: the federal government was already able to utilize POGs but was prevented by the political culture around federalism. The POGS clause has been used sparingly, likely because Prime-Ministers may fear being considered a tyrant by implementing the clauses. Despite not having an answer, the only way I could foresee this going away is if the federal government turns to a more substantial and aggressive pivot towards enacting effective environmental policy, regardless of party-politics ramifications.

In fact, the federal government seems to be going ‘full steam ahead’ as of December 2020 through Trudeau’s new, aggressive climate plan for a greenification of Canada. The carbon price will now increase by $15 annually with the intention of going to $170 by 2030, which is close to what researchers recommend (Connolly, 2020; Maclean, 2017). The Conservative provinces, notably Alberta and Ontario have constantly claimed that the lack of provincial support signifies authoritarian-type leanings. It seems, however, that the Trudeau government is fed up with provincial rebellion and is using the POGs clause to take action. I remain hopeful that his plan does indeed continue full steam ahead.

In addition, the Supreme Court ruled on March 25th, 2021 that the federal government is able to use the National Concern branch of the POGs clause to enforce unilateral carbon pricing (Shieber, 2021; BBC, 2021). This means that Conservative mutiny failed, with the courts finally turning a step in the right direction – national interests trump provincial ones since provinces are a part of Canada. Despite said provinces arguing that the ruling does not change that federal interference violates their autonomy, their plans to resist will ultimately fail (DeClerq, 2021; Platt, 2021). The majority of Canada is already embracing climate measures, which further suggests that the feds have had enough with provincial resistance and using federalism to harm our national interests to fight climate change. Ultimately, this is a big win for federalism and environmental policy.

As a small update, the federal government has seemed to finally stand up to the provinces. They are establishing green energy programs, green bonds for infrastructure, putting an end to the fossil fuel investment and subsidies and much more.

Part 3: Considering an objection

Briefly, I consider the most obvious objection to this paper: making federal interference acceptable could be problematic because of the possibility of an anti-climate federal government that wants to interfere with a pro-climate province. However, there are a few problems with this objection.

First, Canada, as a whole, leans more liberal, which is evidenced by our strong focus on egalitarianism and social justice. Notably, climate change is at the forefront for 4 of the 5 major parties’ federal platforms. Even Erin O’Toole, leader of the Conservatives is attempting to force a change to their political platform, albeit abysmally slower, yet still somewhat in the right direction. Additionally, Gen Z and Millennials finally outnumbering older generations (e.g., ‘the boomer and silent generation’) (Dhaliwal, 2019) means that politicians have to promise meaningful environmental change to win votes. This is supported by the fact that climate change was the most important factor in the 2019 election, explaining the Liberal victory. Ultimately, these factors show that we are more likely to see a federal government that takes serious climate action.

Second, an anti-climate federal government would be unable to use POGs to override pro-climate provinces since ignoring decades of scientific research to pollute the Earth violates our national interests. Even if we set POGs aside to focus on federal areas of environmental control, there are various entities to ensure that the feds are acting in our national interests (Governor General, press, our generation, and Opposition Parties).

Finally, if environmental importance (and climate change) was clearly distinguished in the constitution, then the anti-climate fed’s environmental legislation would be limited since their laws and policies will be unable to violate the highest law in the land. Ensuring both levels of government are properly responsible towards the environment is why it is so critical for the courts to catch up.

Conclusion

This paper discussed and assessed the relationship between Canadian federalism and environmental policy. Based on these several case studies, it is evident that our decentralized federalism has weakened environmental policy. Proponents who are against federal interference seem to be under the misguided notion that the provinces ought to be able to ignore national interests in favour of their own provincial ones. However, such proponents ought to remember that provinces are not independent, but rather part and parcel of Canada. Consequently, national interests, such as preventing the ultimate doomsday (with the exclusion of nuclear wars and alien invasions), are more pressing than regional wants and petty political squabbles. This means that centralization should be embraced rather than seen as a threat. The federal government has been powerless for too long, and it is time for federalist culture to change by embracing the POGs clause and federal interference.

References

Bakvis, H., & Skogstad, G. (2020). In Canadian federalism: performance, effectiveness, and legitimacy (4th ed., pp. 3–30). essay, University of Toronto Press.

Bakvis, H., Skogstad, G., & Broschek, J. (2020). Self Rule vs. Shared Rule: Canada as a case of Comparative Federalism. In Canadian federalism: performance, effectiveness, and legitimacy (4th ed., pp. 31–58). essay, University of Toronto Press.

Bakvis, H., Skogstad, G., Winfield, M., & Macdonald, D. (2020). Federalism and Canadian Climate Change Policy. In Canadian federalism: performance, effectiveness, and legitimacy (4th ed., pp. 363–394). essay, University of Toronto Press.

BBC. (2021, March 25). Canada’s Supreme Court rules in favour of national carbon tax. BBC News. https://www.bbc.com/news/world-us-canada-56526115.

Benger, M. (2016). Climate Change Policy in Canada: Domestic Influences on Foreign Policy Formulation (thesis). University of Manitoba, Winnipeg.

Branfireun, M., Karr, S., Interlandi, J., & Houtman, A. (2014). Environmental science for a changing world: canadian edition. W H Freeman.

Brooks, T. (2019, October). Climate change and Canadian federalism: Examining the constitutional dispute sparked by Parliament’s Greenhouse Gas Pollution Pricing Act. Canada | Global law firm | Norton Rose Fulbright. https://www.nortonrosefulbright.com/en-ca/knowledge/publications/7b195ef7/climate-change-and-canadian-federalism.

Bélanger, A. (2011). Canadian Federalism in the Context of Combating Climate Change. Constitutional Forum / Forum Constitutionnel, 20(1), 21–31. https://doi.org/10.21991/c96x04

Canada’s Economic Contribution: Canada Natural Resources & GDP. CAPP. (2021, March 16). https://www.capp.ca/economy/canadian-economic-contribution/.

Canadian Association of Petroleum Producers. (2019). Oil and natural gas: backbone of the Alberta economy. Context Magazine by CAPP. https://context.capp.ca/energy-matters/2019/btn_oil-and-gas-is-backbone-of-alberta-economy.

The Canadian Press. (2018, October 16). Cancelling cap-and-trade will result in $3B in lost revenue: FAO | CBC News. CBCnews. https://www.cbc.ca/news/canada/toronto/cap-and-trade-cost-fao-1.4864726.

Centre for Constitutional Studies. (2016, October). Pipelines and the Constitution. Pipelines and the Constitution – Centre for Constitutional Studies. https://www.constitutionalstudies.ca/2016/10/pipelines-and-the-constitution/?print=print.

Connolly, A. (2020, December 12). The carbon tax is going up. Here’s how much more you could pay at the pumps. Global News. https://globalnews.ca/news/7515981/canada-climate-change-plan-justin-trudeau/.

Consolidated federal laws of Canada, THE CONSTITUTION ACTS, 1867 to 1982. Legislative Services Branch. (n.d.). https://laws-lois.justice.gc.ca/eng/Const/.

DeClerq, K. (2021, March 25). ‘We’re disappointed’: Ontario will respect Supreme Court ruling on federal carbon pricing. Toronto CTV. https://toronto.ctvnews.ca/we-re-disappointed-ontario-will-respect-supreme-court-ruling-on-federal-carbon-pricing-1.5362373.

Dhaliwall, T. (2019, September 30). For the 1st Time, millennial voters will make up the biggest voting bloc in a federal election. https://globalnews.ca/news/5938985/millenials-biggest-voting-block-canada-election-2019/.

Fusco, I. R. (2019). The Evolution of Canadian Federalism. Federalism-E, 20(1), 85–91. https://doi.org/10.24908/fede.v20i1.13175

Government of Canada. (2020, October 6). Energy and the Economy. Natural Resources Canada. https://www.nrcan.gc.ca/science-data/data-analysis/energy-data-analysis/energy-facts/energy-and-economy/20062.

Hanson, L. L., Salomons, G., & Parkins, J. R. (2018). In Public deliberation on climate change: lessons from Alberta Climate Dialogue (pp. 83–108). essay, AU Press.

Hawke, N. (2002). Canadian Federalism and Environmental Protection. Journal of Environmental Law, 14(2), 185–196. https://doi.org/10.1093/jel/14.2.185

Jeffords, S. (2020, November 18). Ontario auditor says province may not meet its greenhouse gas emission targets. Global News. https://globalnews.ca/news/7469410/ontario-auditor-general-audits-environment/.

Johnson, L. (2020, December 17). New federal hydrogen strategy aligns with Alberta’s blue hydrogen plans. Edmonton journal. https://edmontonjournal.com/news/politics/new-federal-hydrogen-strategy-aligns-with-albertas-blue-hydrogen-plans.

Johnsson, F., Kjärstad, J., & Rootzén, J. (2018). The threat to climate change mitigation posed by the abundance of fossil fuels. Climate Policy, 19(2), 258–274. https://doi.org/10.1080/14693062.2018.1483885

Khan, R. (2019). How Does Canada’s Decentralized Federation Impact Environmental Regulations. Federalism-E, 21(1), 1–11. https://doi.org/10.24908/fede.v21i1.13849

La Flèche, E. R. (2020, August 27). The Western Climate Initiative And The Trump Administration – Environment – Worldwide. Welcome to Mondaq. https://www.mondaq.com/canada/climate-change/979774/the-western-climate-initiative-and-the-trump-administration.

Lagerquist, J. (2021, January 21). Quebec inks contract for one the world’s biggest green hydrogen plants. Yahoo! Finance. https://ca.finance.yahoo.com/news/quebec-inks-contract-for-one-the-worlds-biggest-green-hydrogen-plants-152813060.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuc3RhcnRwYWdlLmNvbS8&guce_referrer_sig=AQAAAEKYv5c5T3FiD63AP_OkEHxQb2XKHIoaJSRHYMQb6e8JRqoH_9gMQJCiXKyjXrxtGgSvxG77xZBeipSe8THbUd9jqhaWW1hsWsXy6meXWIS2eorHFmC4ZAMo4G929ZmvueCWDO8DF0zRdkdP4Oe7q49q4FdoIycjr_ATVZyrKq4X.

Lysyk, B. (2019). 2019 Annual Report. Office of the Auditor General of Ontario. https://www.auditor.on.ca/en/content/annualreports/arbyyear/ar2019.html.

Macdonald, D., Donato-Woodger, B., & Hostetter, S. (2015, October). The challenge of Canadian climate and energy federalism: Explaining the collapse of the Canadian National Climate Change Process, 1998 – 2002. University of Toronto. Paper presented at the annual meeting of the Canadian Political Science Association, Ottawa, June 4, 2015 Notably, Macdonald has his PHD and is a Senior Lecturer, School of the Environment, U of T.

MacLean, J. (2018). Will We Ever Have Paris? Canada’s Climate Change Policy and Federalism 3.0. Alberta Law Review, 889–932. https://doi.org/10.29173/alr2481

McKay-Panos, L. (2020, July 2). The Use of the Peace, Order and Good Government Clause in Canada’s Constitution. LawNow Magazine. https://www.lawnow.org/the-use-of-the-peace-order-and-good-government-clause-in-canadas-constitution/. “Linda McKay-Panos, BEd, JD, LLM, is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta”

Millimet, D. L. (2018). Environmental Federalism: A Survey of the Empirical Literature. Case Western Reserve Law Review, 64(4), 1669–1757.

Newburger, E. (2020, December 22). Rethinking stimulus: How Covid economic recovery can help battle climate change. CNBC. https://www.cnbc.com/2020/12/22/covid-economic-recovery-plans-must-battle-climate-change-.html.

O’Riordan, J. (2018). The Challenges at the Nexus of Canada’s Energy and Climate Change Policies. Environment: Science and Policy for Sustainable Development, 60(3), 4–17. https://doi.org/10.1080/00139157.2018.1449536

Platt, B. (2021, March 25). Kenney and Moe slam federal carbon tax after Supreme Court rules it’s constitutional: Cape Breton Post. Canada | News | Cape Breton Post. https://www.capebretonpost.com/news/canada/federal-carbon-tax-simply-wrong-despite-being-found-constitutional-saskatchewan-premier-scott-moe-568282/.

Scott, D. (2018). Federalism, the Environment and the Charter in Canada. Osgoode Digital Commons: Articles and Book Chapters, 1–31.

Sharps, M. (2019, December 5). Ontario auditor general slams Doug Ford’s climate policies. National Observer. https://www.nationalobserver.com/2019/12/04/news/ontario-auditor-general-slams-doug-ford-climate-policies.

Shieber, J. (2021, March 29). A Supreme Court ruling affirming Canada’s carbon tax opens the door for a startup explosion. TechCrunch. https://techcrunch.com/2021/03/28/a-supreme-court-ruling-affirming-canadas-carbon-tax-opens-the-door-for-a-startup-explosion/.

Star Editorial Board. (2020, December 14). Liberals are on the right track on climate change (and Doug Ford isn’t). thestar.com. https://www.thestar.com/opinion/editorials/2020/12/14/liberals-are-on-the-right-track-on-climate-change-and-doug-ford-isnt.html.

Stillborn , J. (2003, May 30). CANADIAN INTERGOVERNMENTAL RELATIONS AND THE KYOTO PROTOCOL: WHAT HAPPENED, WHAT DIDN’T? for CPSA, 2003 Conference May 30 (morning), Session A2, Challenges to Canadian Federalism. Stillborn was Research Branch, Library of Parliament

Tasker, J. P. (2016, October 3). 4 provinces already have a carbon price, here are the details | CBC News. CBCnews. https://www.cbc.ca/news/politics/provinces-with-carbon-pricing-1.3789174.

UN Climate Change. (n.d.). The Kyoto Protocol. UN Climate Change. https://unfccc.int/kyoto_protocol.

United Nations. (n.d.). The Climate Crisis – A Race We Can Win. United Nations. https://www.un.org/en/un75/climate-crisis-race-we-can-win.

Valiante , G. (2019, April 25). Trudeau says Ontario ‘shortsighted and irresponsible’ for challenging carbon tax | CBC News. CBCnews. https://www.cbc.ca/news/politics/trudeau-carbon-tax-doug-ford-ontario-climate-1.5111507.

Walsh, M. (2018, June 20). Abrupt scrapping of cap-and-trade in Ontario sparking anxiety for businesses. iPolitics. https://ipolitics.ca/2018/06/20/abrupt-scrapping-of-cap-and-trade-in-ontario-sparking-anxiety-for-businesses/.

Wincele, R. (2019, December 17). Cap-and-Trade ambition renewed in 2019 after a decade of decline. Climate. https://climate-xchange.org/2019/12/12/cap-and-trade-ambition-renewed-in-2019-after-a-decade-of-decline/#.

  1. POGS will be discussed more in detail in Part 5
  2. For decades the big fossil fuel has benefitted from shadow pricing. They get incentives and subsidies from the feds and jack up their prices to further profits; however renewables which on their own are the cheapest form of energy even without shadow pricing. They cost pennies per kilowatt hour.
  3. While implied, to be more explicit Alberta is one of the highest emitters of GHGs in Canada (Macdonald et al, 2015)
  4. i.e., British Columbia, Ontario [under Wynn’s Liberals], Nova Scotia and Quebec (Tasker, 2016)
  5. The Supreme Court ruled in fed’s favour on March 25th, so this argument still stands.
  6. While not significant enough to be in the body of the paper, but still notable, even Ontario’s own proposed solutions such as the food waste have been largely ineffective, with Auditor General Bonnie Lysyk highlighting that the government have gone so far to misrepresent GHGs reduced (Lysyk, 2019)
  7. (i.e., Section 91)