Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Gas Emissions Legislation on Provincial Jurisdiction

38 Pages Posted: 18 Feb 2020

See all articles by Andrew Leach

Andrew Leach

University of Alberta - Department of Economics; University of Alberta - Faculty of Law

Eric M. Adams

University of Alberta - Faculty of Law

Date Written: January 21, 2020

Abstract

Federal regulation of greenhouse gas (GHG) emissions presents a difficult challenge for Canadian constitutional law. The federal government’s legislation to implement a national minimum standard of GHG emissions pricing, the Greenhouse Gas Pollution Pricing Act (GGPPA), and the trio of reference cases launched by Saskatchewan, Ontario, and Alberta questioning its constitutional validity, have brought the law and politics of GHG emissions pricing to the forefront of Canadian federalism. In the two appellate court decisions delivered to date, the legislation has been sustained as a valid exercise of Parliament’s power to legislation for the Peace, Order, and Good Government (POGG) of Canada. In each case, however, the Courts have expressed significant concern with respect to the impact of the legislation on provincial jurisdiction.

We draw on recent and historic jurisprudence to characterize conceptual errors that have bedevilled POGG, specifically in the tendency to overestimate its impact on provincial jurisdiction. We then examine the existing interpretive principles that limit POGG’s ability to upend the critical balance inherent in the division of powers. Finally, we discuss how a properly empowered, calibrated, and constrained POGG relates to the GGPPA.

We argue that the reduction of national GHG emissions constitutes a valid federal subject under the national concern branch of POGG, and that the GGPPA is a valid exercise of federal jurisdiction. We see no reason under the double aspect doctrine and cooperative federalism why provinces would lose any existing provincial jurisdiction as a result of the implementation of the GGPPA. Rather, a restrained approach to paramountcy, and the mechanics of the GGPPA itself suggest that provincial and federal legislation will work concurrently on GHGs. That seems to us entirely appropriate given the nature of the climate change crisis before us. In the legislative challenge of our time, we believe Canada’s Constitution is up to the task.

Keywords: greenhouse gases, POGG, climate

Suggested Citation

Leach, Andrew and Adams, Eric M., Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Gas Emissions Legislation on Provincial Jurisdiction (January 21, 2020). Available at SSRN: https://ssrn.com/abstract=3522915 or http://dx.doi.org/10.2139/ssrn.3522915

Andrew Leach (Contact Author)

University of Alberta - Department of Economics ( email )

8-14 Tory Building
Edmonton, Alberta T6G 2H4
Canada

University of Alberta - Faculty of Law ( email )

Law Centre (111 - 89 Ave)
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

Eric M. Adams

University of Alberta - Faculty of Law ( email )

Law Centre (111 - 89 Ave)
Edmonton, Alberta T6G 2H5
Canada

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