Who has the authority to regulate greenhouse gas emissions?

Research and innovation

By Moira Farr

Writer, Freelance

Nathalie Chalifour
Photo: Peter Thornton
To fulfill the Paris Agreement, the federal government must implement a national climate change policy that respects existing provincial and territorial initiatives, says Nathalie Chalifour.

When Canada signed the 2015 United Nations’ Paris Agreement to deal with global greenhouse gas emissions, it signalled a renewed commitment to addressing climate change, after years of being shamed internationally for not taking the issue seriously enough.

The next challenge, says University of Ottawa environmental law expert Nathalie Chalifour, was for the federal government to use the various legislative and policy mechanisms at its disposal to create a national climate strategy that respected the diverse provincial and territorial policies already in place—the “patchwork” that developed in the absence of federal leadership on climate from 2006 to 2015. The government did this with the release of the Pan-Canadian Framework on Clean Growth and Climate Change in December 2016.

It’s these federal mechanisms that Chalifour has researched and laid out in a paper published last August and in a powerful opinion piece in ipolitics.ca, in which she argues that Parliament has “ample constitutional authority to legislate greenhouse gas emissions through regulations, a national cap and trade program, or a national carbon tax, if designed carefully.”

To provide detailed analysis of Parliament’s constitutional jurisdiction, Chalifour spent months poring through decades of Canadian jurisprudence, scholarship and international case law. Her research suggests that federal government powers stem from a variety of areas, including criminal law, taxation, and trade and commerce. The time is right, she argues, for the government to use “the tools of cooperative federalism” and “a progressive interpretation of the Constitution” to establish a strong federal role in developing policy that fulfills the ambitious goals and timelines of the Paris Agreement.

“This would have been much easier if it had been done 15 or even 10 years ago, before the provinces established such varied approaches to climate policy, especially carbon pricing,” she says. Still, it can be done, she believes, without displacing provincial programs already in place.

It’s critical that the government act quickly and decisively, says Chalifour, since there is a considerable gap between Canada’s current emissions trajectory and the 2030 goal of 30-percent reduction. Courts around the world are increasingly holding governments accountable for taking climate change seriously, says Chalifour, pointing to a decision in the Netherlands in 2015 that concluded that the government has the legal duty to reduce greenhouse gas emissions to levels far beyond what most countries, including Canada, are planning. “Now lots of countries are asking, ‘is there a legal duty in our country to do such a thing?’”

The Canadian government has rolled out its national blueprint for addressing climate change, but not without some political backlash. “Now the question is can this administration transform the plan into reality? While it won’t be easy, I think it is eminently doable,” says Chalifour. The most controversial element is the national carbon price, which the federal government has proposed to implement in 2018 in any province that does not have an equivalent price. While the mechanics of the national carbon price have yet to be ironed out, meeting our commitment to the Paris Agreement will require solid federal leadership and intergovernmental cooperation. As Chalifour argues, it is, after all, a matter of national concern.