The Constitutional Limits on Greenhouse Gas Policy in Canada

• Author / Creator

  Leach, Andrew

• This thesis examines the constitutional limitations on federal action to reduce greenhouse gas (GHG) emissions to combat climate change. I rely primarily on cases in other areas of economic policy including agricultural supply management, the control of inflation, the regulation of competition, and the regulation of securities to inform a novel analysis both of the real and important limits on federal power and of potential opportunities for federal legislation. When climate change is looked at through an economics lens though, I find that our legal history suggests jurisdictional opportunities under Parliament’s trade and commerce power not widely discussed in the existing literature. Once we see the environment as part and parcel of our economy rather than separating the two in a false dichotomy, the federal role to regulate pollution in general and GHG emissions in particular is compelling.

  In the introductory chapter of this thesis, I provide a summary of existing GHG policies in Canada and survey the legal scholarship with respect to the constitutional limitations on future federal legislation. To frame this discussion for those not familiar with the classification of laws under the Canadian Constitution, I provide a brief digression on the division of powers.

  The main focus of this thesis is Parliament’s trade and commerce power. I use the tools of economics to make two central arguments regarding the application of this head of power to climate change policies. In Chapter 2, I argue that the parallels between agricultural supply management policies upheld under the extra-provincial branch of the trade and commerce power and potential federal climate change policies are weaker than suggested by some legal scholars. This is because, despite both relying on similar underlying economic tools, the federal government’s ability to backstop such a regime is much more restricted in the case of GHG emissions than in the case of chickens or eggs because emissions aren’t traded in a traditional sense. In Chapter 3, I argue that once we view environmental policy in general and climate change policy in particular as economic policy, this framing opens the door to consideration of the general branch of the trade and commerce power as a means to uphold federal regulatory charges on GHGs. Once we think of emissions not as trade but as costly consequences of the incomplete regulation of commerce, then parallels to other areas of federal regulation including competition, trademarks, and securities become clear.

  I approach this thesis from an interdisciplinary perspective. While the analysis is primarily constitutional law, it is informed by my background in economics. In my conclusion, I argue that Canadian environmental economics should be more informed than it currently is by the constraints imposed by Canadian constitutional law. Ignoring these constraints will necessarily lead to bad policy advice.

• Subjects / Keywords

  • constitutional law
  • climate change
  • carbon pricing
  • carbon tax

• Graduation date

  Spring 2021

• Type of Item

  Thesis

• Degree

  Master of Laws

• DOI

  https://doi.org/10.7939/r3-fgww-bw04

• License

  This thesis is made available by the University of Alberta Libraries with permission of the copyright owner solely for non-commercial purposes. This thesis, or any portion thereof, may not otherwise be copied or reproduced without the written consent of the copyright owner, except to the extent permitted by Canadian copyright law.