Climate Change, Constitutions, and Courts: The Reference re Greenhouse Gas Pollution Pricing Act and Beyond

Saskatchewan Law Review, 82:2 (2019)

39 Pages Posted: 10 Jan 2020

See all articles by Jason MacLean

Jason MacLean

School of Environment and Sustainability, University of Saskatchewan

Date Written: December 20, 2019

Abstract

The aim of this article is to critically assess the Court of Appeal for Saskatchewan’s advisory opinion in the Reference re Greenhouse Gas Pollution Pricing Act, not merely in terms of constitutional law doctrine, but in terms of the Canadian climate policy politics and priorities of which the Court’s opinion is inescapably a part. This raises the following question: What if Canadian federalism, particularly Canadian courts’ interpretation of federalism, were to pose a true obstacle to effective climate action? Or, to frame the question in an even more pointed way: What good is federalism, or even the Canadian constitutional order, if we are all dead?

I argue that the provincial challenges to the constitutional validity of the federal government’s climate-change legislation — dubbed the “Saskatchewan Strategy” — have very little to do with constitutional law doctrine. These challenges, rather, are a continuation of climate politics by other means, and serve only to delay and distract Canadians from the difficult public policy choices that the country must make to effectively contribute to climate change mitigation.

I further argue that the advisory opinions of the Courts of Appeal for both Saskatchewan and Ontario in respect of the Greenhouse Gas Pollution Pricing Act are similarly only ostensibly about jurisdiction and the division of federal and provincial powers. Their opinions, rather, reflect and reinforce the country’s ambivalence about climate change, and its assurance — notwithstanding the cascading conclusions of climate science demonstrating otherwise — that business as usual is a rational and responsible path forward.

Finally, I argue that federalism is neither timeless, nor fixed in form, nor truly an obstacle to effective climate policymaking in Canada (were Canada ever to genuinely commit to effective climate policy action). If federalism were ever to truly conflict with Canada’s genuine public policy commitments, it would soon fall into desuetude.

Suggested Citation

MacLean, Jason, Climate Change, Constitutions, and Courts: The Reference re Greenhouse Gas Pollution Pricing Act and Beyond (December 20, 2019). Saskatchewan Law Review, 82:2 (2019), Available at SSRN: https://ssrn.com/abstract=3507269

Jason MacLean (Contact Author)

School of Environment and Sustainability, University of Saskatchewan ( email )

College of Education
Saskatoon, Saskatchewan S7N 5A7
Canada

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