The Crude Politics of Carbon Pricing, Pipelines, and Environmental Assessment

Abstract

In this article, I attempt to unpack a particularly problematic “peril of pipelines and riddle of resources,” the theme of this special issue: namely, the simultaneous acknowledgement of the need to act urgently and ambitiously on climate change, on the one hand, and on the other hand the decision – taken over and over again – to delay meaningful action by disputing narrow but largely settled questions of jurisdiction and responsibility while steadfastly supporting and subsidizing expanded fossil fuels production and export. These disputes delay and distract us from the kinds of complex and controversial policy choices that we need to debate and decide. Delay courts – quite literally – disaster.

My argument in this article is that the constitutional law and law reform arguments made in respect of carbon pricing, pipeline approvals and regulations, and environmental assessment processes are inescapably political. On the one hand, legal arguments about the “pith and substance” of each are necessarily normative and ineluctably bound up in competing ideologies, values, and public policy perspectives on Canada’s social and economic priorities. On the other hand, those same legal “pith and substance” arguments are being “weaponized,” not out of genuine, good-faith disagreements over legal doctrine, but as indirect, collateral attacks on the very prospect of urgent and ambitious climate change policymaking.

Keywords: Carbon pricing, pipelines, environmental assessment, constitutional law, public policy