Canadian Climate Federalism: Parliament’s Ample Constitutional Authority to Legislate GHG Emissions through Regulations, a National Cap and Trade Program, or a National Carbon Tax

Abstract

Prime Minister Justin Trudeau has committed the government to do what is needed to ensure Canada meets or exceeds its national climate targets under the Paris Agreement. While he has promised to work collaboratively with the provinces in establishing a pan-Canadian clean growth and climate framework, it is clear that some new federal climate laws will be required. There are many factors involved in selecting and designing climate policies, one of which is constitutional jurisdiction. This article analyzes Parliament’s authority to regulate greenhouse gas (GHG) emissions and implement a carbon price, either through a national carbon tax, a national emissions trading scheme or other regulations. Taking into account recent jurisprudence and previous scholarship, the article considers five federal powers: the national concern and emergency powers of Peace, Order and Good Government (P.O.G.G.), criminal law, taxation, trade and commerce, and the declaratory power. It also considers the spending power. The analysis shows that there is ample authority within the Constitution for a strong federal role in regulating GHG emissions and pricing carbon without displacing appropriately scoped provincial climate programs. While thoughtful legislative drafting will be important, ultimately the Canadian Constitution’s division of powers is adequately equipped to deal with what may be the greatest public policy challenge of our time. In fact, climate change is perhaps the quintessential issue for engaging the tools of cooperative federalism and progressive interpretation of our Constitution.

Keywords: Climate Targets, Paris Agreement, Climate Laws, Constitutional Jurisdiction, GHG Emissions, Carbon Tax