Supreme Court of Canada ruling on carbon tax opens door for Justin Trudeau to curtail production of oil and gas

The prime minister speaks about "emissions" reductions, but so far, he's been afraid to take on the provinces when it comes to limiting extraction of fossil fuels

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      There's a widespread belief in Canada that provinces have exclusive jurisdiction over the production of nonrenewable resources, including oil and gas.

      It's even spelled out in section 92A(1) of the Constitution Acts, 1867 to 1982.

      As a result, Canadians are watching a surreal spectacle unfold in front of their very eyes.

      Prime Minister Justin Trudeau has pledged to cut greenhouse-gas emissions from 730 million tonnes in 2019 to 503 million tonnes by 2030.

      That sounds pretty impressive.

      But it also appears to be an extremely hollow promise in light of the National Energy Regulator's forecast for sharply increasing production of diluted bitumen until around 2040.

      Trudeau never talks about cuts to oil and gas production. Never.

      He only speaks about reducing "emissions".

      But how can emissions be curtailed when the provinces continue giving the green light to new oil and gas projects?

      Especially when the Trudeau government has been such a willing partner, most notably in buying the Trans Mountain pipeline system and approving the LNG Canada project in Kitimat?

      Canada's Energy Future 2020 report from the National Energy Regulator shows what's coming over the next 30 years.

      Canada needs to go on a fossil-fuel diet

      Trudeau's talk of curbing emissions is like saying you're going to lose weight as you keep scarfing down chocolate cake—for decades.

      There is a way for the federal government to intervene to put the country on a fossil-fuel diet that will truly shed emissions and cut production. But it would take the type of political courage that Trudeau has not demonstrated to date.

      The road map was laid out in the Supreme Court of Canada's 2021 ruling upholding the national Greenhouse Gas Pollution Pricing Act, which introduced the national carbon tax.

      The court found that this legislation was constitutional, even though it appeared to intrude into provincial jurisdiction. That's because a majority of judges concluded that global warming causes harm beyond provincial boundaries.

      Therefore, it's a matter of national concern under the constitution's "peace, order and good government" clause.

      There's a three-step legal test for asserting national jurisdiction over what might seem to be an issue of provincial control:

      1. It must meet the legal standard for being of "national concern", which must be demonstrated by evidence adduced by the federal government.

      2. It must pass a test for "singleness, distinctiveness, and indivisibility".

      3. It must also meet the legal threshold for "scale of impact".

      "Courts must approach a finding that the federal government has jurisdiction on the basis of the national concern doctrine with great caution," Chief Justice Richard Wagner wrote for the majority. "The effect of finding that a matter is one of national concern is permanent and confers exclusive jurisdiction over that matter on Parliament.

      "However, the scope of the federal power is defined by the nature of the national concern itself and only aspects with a sufficient connection to the underlying inherent national concern will fall within the scope of the power."

      Canada's highest court has recognized the significant harms created by rising greenhouse-gas emissions.
      Supreme Court of Canada

      Provinces can't act in unison on climate crisis

      According to the Supreme Court of Canada, one of the principles necessary to prevent federal overreach is that it be a "specific and identifiable matter that is qualitatively different from matters of provincial concern".

      In addition, Wagner emphasized in his judgement, the provinces must demonstrate an "inability to deal with the matter" because the failure of one or more governments to cooperate would prevent others from addressing it.

      Alberta is clearly not interested in curtailing production of oil and gas to prevent harm caused by rising greenhouse-gas emissions.

      Nor do B.C., Saskatchewan, or Newfoundland and Labrador appear to be keen to scale back their fossil-fuel industries.

      "While each province’s emissions do contribute to climate change, there is no denying that climate change is an 'inherently global problem' that neither Canada nor any one province acting alone can wholly address," Wagner wrote. "This weighs in favour of a finding of provincial inability."

      He also cited previous rulings noting that international agreements can be relevant to any analysis of national concern.

      "As a global problem, climate change can realistically be addressed only through international efforts," the chief justice declared on behalf of the majority.

      "Any province’s failure to act threatens Canada’s ability to meet its international obligations, which in turn hinders Canada’s ability to push for international action to reduce GHG [greenhouse-gas] emissions," he added. "Therefore, a provincial failure to act directly threatens Canada as a whole."

      Heavy rains and widespread flooding resulted from atmospheric rivers pounding B.C. in November.
      B.C. government

      Climate impacts felt across country

      A third factor necessary to establish national concern, according to the court ruling, is the existence of "grave extraprovincial consequences". Only then can the feds step in and assert jurisdiction.

      In 2021, nearly 600 people died from an unprecedented heat wave in British Columbia. That's pretty grave.

      The hot weather also contributed to the third devastating wildfire season in five years. That's also pretty grave.

      In addition, B.C. was walloped by a series of atmospheric rivers in November that caused billions of dollars worth of damage to infrastructure, homes, and the agricultural sector. That also likely qualifies as "grave".

      These horrific storms were stronger as a result of higher temperatures, which result in more water vapour accumulating in the atmosphere.

      Severe flooding in recent years along the Ottawa River and in the St. John River valley also demonstrate the "grave extraprovincial consequences" of the climate emergency caused by rising greenhouse-gas emissions.

      "Moreover, GHG emissions are predominantly extraprovincial and international in their character and implications," Wagner wrote in the decision. "This flows from their nature as a diffuse atmospheric pollutant and from their effect in causing global climate change.

      "GHG emissions are precisely the type of diffuse and persistent substances with serious deleterious extraprovincial effects that the dissent in Hydro-Québec suggested might appropriately be regulated on the basis of the national concern doctrine."

      Alberta premier Jason Kenney hasn't appeared overly concerned about the impact that Alberta's fossil-fuel industry might be having on the stability of the climate.

      Provinces can't cite lack of overall harm

      The majority of justices also rejected the notion that because climate change is inherently global, each province's emissions cause no measurable harm.

      "Each province’s emissions are clearly measurable and contribute to climate change," the chief justice declared. "The underlying logic of this argument would apply equally to all individual sources of emissions everywhere, so it must fail."

      Moreover, he noted that courts in the United States, the Netherlands, and Australia have come to similar conclusions.

      Canada is the fourth-largest producer of oil in the world. Provincial governments continue approving oil and gas projects even though the science is clear.

      If countries don't take steps to limit production of fossil fuels, the average global temperature will increase to a point where irreversible feedback loops will kick in, setting off the Hothouse Earth scenario.

      "By 2050, we find that nearly 60 per cent of oil and fossil methane gas, and 90 per cent of coal must remain unextracted to keep within a 1.5 °C carbon budget," researchers Dan Welsby, James Price, Steve Pye, and Paul Ekins wrote in Nature on September 8. "This is a large increase in the unextractable estimates for a 2 °C carbon budget, particularly for oil, for which an additional 25 per cent of reserves must remain unextracted.

      "Furthermore, we estimate that oil and gas production must decline globally by 3 per cent each year until 2050," they added. "This implies that most regions must reach peak production now or during the next decade, rendering many operational and planned fossil fuel projects unviable."

      Given Canada's role as a major world producer of fossil fuels, the provinces' failure to curtail production of oil and gas is threatening the future of millions of people around the world.

      Trudeau appears to have the legal latitude to intervene, thanks to the Supreme Court of Canada's ruling on the national carbon tax.

      So enough of the weasel words on "emissions". The prime minister must get on with the job of regulating production, regardless of what's written in section 92A(1) of the Constitution Acts, 1867 to 1982.

      Failing to act would demonstrate once again that Trudeau isn't truly interested in addressing the climate breakdown.

      He showed his lack of concern a few times in the past, most notably in his support for the Keystone XL pipeline, the Trans Mountain pipeline expansion, the LNG Canada plant, and the Enbridge Line 3 pipeline.

      This is likely his last chance to preserve his reputation on climate action.

      Otherwise, he'll go down in the history books as the Liberal version of Stephen Harper.