Lots of talk lately about how Canada will likely line up its climate change policies and regulations with the US. And there’s good reason for this talk – alignment avoids trade issues, keeps Canadian firms competitive, and paves the way for a North American (and perhaps global) carbon market. More recently, Canada’s Minister of the Environment spoke of aligning with the US’s economy wide approach to climate regulation. This would be a sea change for Canadian climate policy and likely add a considerable amount of emissions to the regulatory coverage.
So what does economy wide mean? In the current US Bill (Waxman-Markey), in addition to major industry being responsible for emissions from their facilities, fuel producers and importers along with local natural gas distribution companies are also held responsible for all emissions that would occur from the combustion of the fuel or gas that they produce, import, or distribute, as the case may be. Regulating these companies will allow the government to capture all emissions from the end use of the fuel/gas, for example from transportation and home heating.
How will Canada achieve this? Its definately a mystery as to how the Canadian government plans on regulating climate change, particularly given the speed of changes going on in the US. Previous government policy only sought to regulate emissions that occurred at the facilities (i.e. emissions from an industrial activity or process). There has been commentary on the powers that the government would use to enact climate laws – that GHG regulations under the Canadian Environmental Protection Act, 1999 would be enacted under the federal government’s criminal law power. But would this allow the economy wide regulation that aligning with the US would require? My opinion… no.
Typically, holding one person (or company) liable for the actions of another runs afowl of the basic principles of criminal law. Trying to do this under CEPA, 1999 would no doubt ensure a healthy barrage of constitutional challenges.
But a couple of things still hang on my mind… Does the federal government HAVE to use criminal law power for regulations under CEPA, 1999? No, but the Hydro Quebec case gives the feds power to regulate substance on CEPA’s Schedule 1 (Toxic Substances) under the criminal law power. The court just doesn’t really limit the federal regulatory power to criminal law, leaving the door open to regulating environmental issues under the Peace, Order, and Good Government head of power. Regardless, the feds put greenhouse gases on the list of Toxic Substances back in 2005. Despite some arguably ‘non-criminal’ provisions of the 2008 regualtory framework (namely the Technology Investment Fund), the general feeling seems to be that regulations under the criminal law power are (or at least have been) the way forward.
One option is to use the POGG power to try and enact an new piece of legislation… one that would give the government proper authorities to properly establish and regulate a price on carbon through regulation. Given the perpetual minority government situation in Ottawa, this scenario seems a bit unlikely, though its likely the best solution.
We have to wait and see what comes of the federal government’s review of the economy wide approach. Its seems a big gamble… likely placing the country’s most important piece of environmental law in a very weak position, open to serious lawsuits and constitutional challenges by companies and others.
