The Decibel - Supreme Court sides with Alberta on federal environmental law

Episode Date: October 23, 2023

As Canada tries to figure out its path forward in combating climate change, the question of which level of government is allowed to do what has become a sticking point in the courts. Most recently, the government of Alberta asked the Supreme Court to rule on whether a piece of federal environmental legislation was offside.The court’s decision was a surprise to both sides. So The Globe’s climate change columnist Adam Radwanski will explain what was in the ruling and why it now has some questioning the power of the federal government to lower greenhouse gas emissions.Questions? Comments? Ideas? Email us at [e-mail]

Do you remember your initial reaction or the reaction of people around you to this news of the Supreme Court of Canada decision? I think there was quite a bit of surprise to this decision and frankly on both sides, though one of them might not want to admit it. Adam Radwanski is the Globe's climate change columnist. And he's talking about a Supreme Court decision that has now opened up a lot of questions about future regulations around greenhouse gas emissions. The main tension here is the federal government's role in applying environmental policy in an increasingly ambitious way as climate change becomes more and more of a priority for Ottawa. Today, we're going to wade into this court decision and talk about the challenges of tackling a big issue like climate change through legislation.

I'm Mainika Raman-Wilms, and this is The Decibel from The Globe and Mail. Adam, thanks so much for being here today. Thanks for having me back. So what was the piece of legislation that's at the center of this court case? At the center of the case is a law passed in 2019 called the Impact Assessment Act that covers how the federal government conducts environmental assessments. It's four major projects. So that can be oil and gas, which of course is a tension with Alberta in particular.

It can be mining. It could even be renewable projects. So it's a range, but it has to be of a certain size. Okay. So of course, Alberta is the one that took this to the Supreme Court. Why did the Alberta government ask the Supreme Court of Canada to review it? The Alberta government's view is that this act gives the federal government way too much power to stop resource sector projects. We're talking really oil and gas here, that it doesn't like.

I mean, it often was referred to by them and by the federal conservatives as the No More Pipelines Act. Of course, it does not actually stop any pipelines from happening as of now. But the feeling was that this gives a lot of discretion. And when you've got a federal government in particular that is not as friendly toward the oil and gas sector as the Alberta government may be, that it could tilt the balance away from those sorts of projects moving forward. Okay. So it could, I guess, slow down these projects or even stop them entirely was the fear. That is their concern, that it could stop projects. And of course, in general, there's just a view, and they're not alone in this, some other provinces would join them in this, there's a view that it just gives the federal government too much intrusion onto

provincial turf, which of course is an ongoing tension, not just with environmental regulation, but it has been one that all sides have been trying to strike a balance on for a long time. And this law, which replaced one that the Stephen Harper government enacted previously, certainly did give the federal government a lot more leeway to decide, based on a wider range of criteria, what does or does not meet environmental standards. Okay. All right. So the Supreme Court of Canada reviewed this legislation.

What did they find? So the Supreme Court did find that part of this legislation, which covers projects that are on federal lands mostly, or which the federal government has a direct role, are fine, constitutionally fine. But the bulk of the legislation they found to be in its current form unconstitutional for a couple of reasons. It has to do with how much discretion Ottawa has and how little clarity there is about the criteria on which projects are being judged. And basically, it gives too much room to make a somewhat arbitrary choice or to use criteria that aren't actually within federal jurisdiction. And this wasn't a unanimous decision from what I understand, right? It's not a unanimous decision. It's a five to two ruling, which is fairly strong. Okay.

But no, not unanimous. Okay. So five to two, so that means there were two dissenting justices then. What did they have to say? The dissenting opinion from the two justices was basically predicated on environmental policy and environmental needs being fluid and the relationship between Ottawa and the provinces being fluid and perhaps a growing role at a time when climate change in particular is of growing concern. It also essentially said that the majority was overly

concerned with how the law could be applied in future to exceed constitutional bounds. But essentially, that was sort of an extreme case. And it was reasonable to believe that Ottawa would act within its constitutional bounds in applying the law. Okay. Okay. So there's a lot of details here. But essentially, this sounds like this is a situation of federalism, which is a fancy word for basically how the provinces and the federal government share power. So who gets a say in how we decide these things? That's right. And there's certainly no indication from the court here, despite what the Alberta government has claimed subsequently, that Ottawa has no role in this.

In fact, it makes pretty clear that Ottawa does have a role in environmental assessments. Okay. When we talk about the majority opinion then, Adam, what was the exact problem that the majority of justices took issue with here? Their issue, I think, largely is around creeping jurisdiction here in that Ottawa has power over some specific environmental concerns. For instance, waterways and the protection of them. The concern here is that, first of all, even the criteria on which an impact assessment could be launched may go beyond those. But also that even if it does launch an impact assessment based on, say, the waterways concern, then the process and the ultimate judgment are much broader and

more subjective and can basically be sort of an all-purpose, is this a sustainable project assessment, which is really not within Ottawa's powers, according to the justices. And there's obviously dispute about that, because what the federal government would say is like, the way we're applying this so far is nothing like that. And this is, you know, yeah, the language may need to be tightened up a bit, but that's really not the intent here. But the concern is the danger of it being overused or ambiguously used by Ottawa. Okay. And just to be clear here, did the Supreme Court, they didn't strike down the law. What was this situation?

This case was a reference opinion. So that's when a government, in this case, Alberta's, seeks a constitutional opinion from the court. So it's not a binding case. This law has not been struck down immediately, but it basically means that the federal government has to go fix the law, because I think you can safely assume that if it didn't, then any future disputes around how this law is applied, you can guess how the court would rule. Okay. So how did the federal government actually react to this news? The federal government has basically downplayed it as a concern. I mean, they have said,

you know, they respect the judgment and they are going to undertake a fixing of the concerns and recraft aspects of the law. But they also basically seized on, this reaffirms that we have a role. We weren't planning to apply it in this way anyway that they said we shouldn't do. So we're just going to tighten it and they'll get past their concerns. There is a lot of uncertainty right now around what it actually means. And this is not a great situation for anybody. As much as Alberta's celebrating it, if you want projects of any sort to move forward, you want regulatory clarity. And right now, nobody really knows what this law is going to look exactly like in six months or a year. So everybody's in a little bit of limbo for now. So you think on the surface of something like this, projects like mining or oil and gas might

find that they have more freedom. But you're saying that's not actually the case. They're not really happy necessarily about this decision. Some sectors and certainly some governments may be quite happy with philosophically with the judgment and they may like its long term implications. So like the Alberta government philosophically may be happy with this? The Alberta government is very happy philosophically with this judgment. And some sectors, I think the oil and gas sector and others are happy with it too in the long-term sense because they didn't like this law to begin with. I don't think anybody

likes the short-term situation, at least they shouldn't, because it does mean that there's a lot of uncertainty. And it certainly doesn't mean what Alberta has been implying, what Alberta's government has been implying, which is, well, now the federal government's out of the way and all projects can just move forward. That is not what it means. The federal government still has a role. It's just that role is a little bit unclear. And so if you tend to complain about our slow regulatory processes to begin with, right now, when you don't really know even what the standing federal environmental assessment process is for major projects, the uncertainty is even greater than it was before.

We'll be back in a moment. So Adam, earlier you mentioned that this decision came as a surprise for a lot of people. Why was it a surprise? I think part of the reason this was a surprise for many people, if not all, was that it's not long ago, a couple of years ago, that the Supreme Court upheld the federal carbon pricing system. So this was when the Supreme Court upheld the federal carbon tax, and that Alberta, Ontario, Saskatchewan all brought this case to the Supreme Court. And yeah, they ruled in favor of the federal government there. That's right.

In retrospect, and this is something the court has been highlighting, they ruled in Ottawa's favor in a somewhat narrow way and made clear that it was about this particular strategy and this particular introduction of a focused policy and that it wasn't giving the federal government unlimited scope to regulate greenhouse gas emissions in areas of provincial jurisdiction. So they do seem to be pulling back a little bit from the leeway they were perceived to be offering a couple of years ago. Yeah. So I wonder, I guess, taking those two decisions together, Adam, like how do we square this? Like the one about the carbon pricing, right, that cited that the federal government has the authority to legislate on these kind of big matters, right, environmental matters of national concern. But then this one says, no, actually, the federal government shouldn't have this much scope here.

So I guess how do we square that? To be honest with you, I don't know how to square it, and I'm not sure that most people do exactly. I think it's a really open question right now, what role exactly the federal government has in greenhouse gas emissions. If you were to read just the majority judgment here, you would think that Ottawa might have almost no role in that. But that's not what the previous judgment said. And frankly, it's hard to imagine that as governments around the world, national governments are taking a stronger role in regulating greenhouse gas emissions and pursuing national emissions reductions targets, and courts

around the world are increasingly taking this very seriously and putting responsibility for it on national governments, that the Supreme Court in Canada would consistently find going to the future that the federal government here just doesn't have jurisdiction here. That seems highly unlikely to me, but it's certainly a very much an open question exactly how much room Ottawa has. And I'm not sure anybody will really know that until further federal legislation is tested. Which we will get into in a second. But I guess really what you're saying, it really gets to the heart of the nature of

the problem of climate change and environmental regulation, right? Because it's borderless in a lot of ways, right? If you've got a river, this isn't a specific place, but with greenhouse gases, I mean, that's a harder thing to control and to regulate. Emissions are kind of borderless. I mean, we do emit a certain amount within this country, but they cross borders. You often hear this debate around exactly how responsible Canada is or isn't. So it's a very different type of environmental regulation than governments were pressed to do in the past. And I think it is unclear right now how we treat that. Yeah. Okay. So we've just talked about two pieces of environmental legislation that the liberals have brought in. What about upcoming environmental legislation, Adam? What's next? There are two really big fronts on the

regulatory side that are very much in conversation after this decision. And one of them is the clean electricity regulations, which is basically meant to move Canadian electricity grids toward net zero. Basically, come 2035, it will start imposing restrictions meant to move us toward net zero electricity grids. That one, really, when you get down to it, is about trying to restrict natural gas power plants that don't have carbon capture and particularly dissuade the building of new ones. All right. So that's one, the clean electricity regulations. What's the second one? The other one, which I suspect will be even more controversial, the first one certainly has been, is a proposed cap on emissions from the oil and gas sector. And basically it will, as it sounds,

impose some form of cap that gets increasingly stringent over time on how much the oil and gas sector is in production of oil and gas, obviously mostly in Alberta, but there's so much in Saskatchewan and British Columbia, how much it can emit. All right. So there are definitely some other things that are coming down the line here then, Adam. I guess, how important, we've talked about a bunch of these regulations, but how important are these in the government's efforts to hit net zero by 2050? Both of these regulations that Ottawa is planning to bring forward are pretty central to its

emissions reduction strategy. In the case of the electricity regulations, we don't actually have very high electricity emissions as a country. Many provinces have basically none, particularly those that are fairly hydro-reliant. Some of the provinces, Alberta, Saskatchewan, Nova Scotia, New Brunswick, to some extent Ontario, are not as clean. They do still rely somewhat on fossil fuels. And the federal concern there, and the importance to the national climate strategy, would be that as we electrify more and more things, if we are powering that

with natural gas, that you're essentially compromising some of the gains you're making by electrifying things if you're powering with fossil fuels that emit. So it is pretty important. The emissions cap for the oil and gas sector is very central. It's very controversial. And you could even find people who are climate policy advocates who don't necessarily think it's the best approach, but certainly finding a way to bring down that sector's emissions is hugely important. I mean, oil and gas makes up now, oil and gas production now, makes up over a quarter of all of the greenhouse gas emissions in Canada, which is a lot. And we're a high emitting country largely because of that sector. And unlike some other sectors, transportation, for example, which was

almost alongside oil and gas, or was pretty much alongside oil and gas in terms of its profile international emissions. Unlike a sector like transportation, oil and gas has not been going down in terms of emissions. And there's not much sign of it going down on its own. There's a lot of talk from oil and gas producers about producing in cleaner ways, and they have to some extent, but that's been compromised by increased production. Carbon capture, which is supposed to be largely their recipe for cleaning up how they produce, has yet to actually move forward in a significant way. So there is a view that somehow a government needs to become much more stringent in how they treat that industry. And if it doesn't, it is extremely difficult to imagine that we're going

to reduce our national emissions by 40 plus percent by 2030 or hit net zero by 2050. Yeah. So, I mean, just to bring it back to the decision that we started off talking about, I guess, how might that recent decision affect how the government designs these upcoming regulations? So I guess, so that they aren't ruled against by the Supreme Court in the future. Both the oil and gas emissions cap and the clean electricity regulations are likely to be advanced as part of the Canadian Environmental Protection Act, which is an existing law that is what it sounds like. It's a bunch of different environmental regulations. Weirdly, it's backed by Ottawa's control over the criminal code. These are actually under the criminal code.

That law is under the criminal code. And that's how it's federal jurisdiction, which so far the Supreme Court has not taken issue with. So, I mean, it sounds a little bit like it's a case of the government maybe putting all its eggs in one basket. So they either all succeed or I just wonder if the Supreme Court could rule on the entire act and strikes it down. Like, could they suddenly everything be gone?

That's exactly the concern. Not that everything would be gone, I don't think. I don't think they're just going to say, we no longer have any environmental regulations. But it's possible, based on people I was speaking to, that they would kind of revisit the way that different federal regulations have crept in under this criminal code power, which is a little strange. Adam, just lastly here, I mean, we've been talking about all these different regulations. Obviously, time is of the essence here when it comes to stopping or slowing global warming. And these court battles between the federal governments and provincial governments, I mean, these take a lot of time, frankly, right?

So I guess what could be done to prevent these fights from dragging on in the first place? The most obvious way to avoid this happening, although perhaps you risk sounding a bit Pollyannaish based on our history of these things, would be for the federal government and the provinces to just work together. And yeah, there's always going to be tensions, but they work those out amongst themselves and you avoid ever having to go to court. I don't know if that's going to happen with the current federal and Alberta government, but in theory, that would be the best way. In the immediate aftermath of this decision, you had people on one side, particularly the Alberta government and some commentators who are friendly to oil and gas and so on saying, well, this obviously shows that future efforts like the oil and gas emissions cap and the

clean electricity regulations will inevitably be overruled, struck down, whatever, by the courts. And then you had, to some extent, the federal government and certainly climate advocates saying, no, no, there's no danger of that. I don't think anybody can really speak with confidence here. It's also just not the case that the Supreme Court lays out a long-term strategy or gives a clear indication of how it's going to rule in the future on somewhat different matters based on this. And they haven't planned that out. I think anybody who claims to know what a future ruling is going to look like hasn't really paid attention to how the last two have gone down.

Adam, thank you so much for taking the time to speak with me today. Thank you, Manika. That's it for today. I'm Manika Raman-Welms. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show.

Adrienne Chung is our senior producer, and Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.