AuthorMacLean, Jason

Therefore, whilst the unity and consolidation connected with Legislative Unity was obtained on the one hand, due care and attention to the local matters interesting to each Province were provided for by the preservation of local parliaments, and those powers were so arranged as to prevent any conflict or struggle which might lead to any difficulty between the several sections. (1) The Attorney General submits that the Court should not be swayed by arguments about the importance of climate change in today's world ... Maintaining the jurisdictional balance of the division of powers is always more important. (2) No country wouldfind 173 billion barrels of oil in the ground andjust leave them. (3) Introduction: Courting Delay, Distraction, and Disaster

In the fall of 2018, the United Nations Intergovernmental Panel on Climate Change (IPCC) issued a special report on the climate science and policy implications of 1.5[degrees]C or higher of global warming above the pre-industrial norm. (4) Its conclusions are disturbing. There are significant climate and sustainability differences between holding warming to 1.5[degrees]C as opposed to merely below 2[degrees]C; the latter being the original primary target of the United Nations Paris Agreement on climate change, the former originally being the more ambitious, aspirational target. (5) Rapid, systemic, and unprecedented changes to international and local socioeconomic systems are required to hold warming to 1.5[degrees]C and stave off the most disastrous consequences of climate change.

The consequences of climate change, of course, are no longer exclusively the concern of future generations; the planet, including Canada, is already contending with climate change and its costs. According to the Canadian installment (6) of the Lancet's global project (7) tracking climate change's public health impacts, climate change is contributing to increased wildfires, extreme heat events, unstable Arctic ice conditions, changes in Lyme disease distribution, and impacts on food insecurity and mental health across Canada. The Canadian Public Health Association argues that the delayed response to climate change over the past 25 years has jeopardized human life and livelihoods. While these effects will disproportionately impact the most vulnerable in our society, every community will be affected, and present emissions pathways are heading toward levels of warming and associated climatic changes that will very likely exceed our ability to adapt. (8)

However, neither climate change nor sustainability is a binary, either/or phenomenon; a range of outcomes is possible. Similarly, the direction and pace of emissions pathways are highly contingent on policy choices. The International Energy Agency's (IEA) 2018 world energy outlook underscores this point. Regarding the "huge gap" between the IEA's "current policies scenario" (i.e. "business as usual") and its "sustainable development scenario," whereby accelerated clean energy transitions put the world on track to meet the goals related to climate change, universal access to energy, and clear air, the IEA notes that "[njone of these potential pathways is preordained; all are possible. The actions taken by governments will be decisive in determining which path we follow." (9)

What path will Canada follow? Canada's rhetoric aside, it remains more a climate laggard than leader. Were the world to adopt Canada's current greenhouse gas reduction ambitions as a global benchmark, for example, the world would be on pace for a staggering 5.1[degrees]C of warming by the end of the century. (10)

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.

The rest of this article unfolds as follows. In Part I, I examine the constitutional challenge to the federal government's carbon-pricing framework referred to the Saskatchewan Court of Appeal by the Saskatchewan provincial government. By examining the inconsistent and misleading legal submissions advanced by both Saskatchewan and Ottawa, I argue that this judicial reference, formally and ostensibly focused on constitutional law, serves to effectively mask the underlying ineffectiveness of each of these government's climate change policies.

In Part II of the article, I examine British Columbia's referral to the BC Court of Appeal of a series of interrelated constitutional law questions about its proposed regulation of the flow and potential spills of heavy crude oil in the province, and the federal government's assertion of its paramount jurisdiction over interprovincial pipelines. Once again, I argue that these governments' legal submissions--and their public statements--about their jurisdiction over matters of environmental protection serve to belie the underlying ineffectiveness of their actual environmental policies and regulations.

In Part III of the article, I attempt to bring these tensions and contradictions into even clearer relief by examining the controversy over the federal government's tabling of Bill C-69 and the bill's proposed Impact Assessment Act. I argue that the law-reform dispute over the bill masks its true deficiency: its failure to meaningfully contribute to climate change mitigation and sustainability. I conclude the article by discussing the need to prioritize the interdisciplinary analysis of the political barriers to urgent and ambitious climate policy.

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. (11)

My focus, in other words, is simultaneously concentrated on the economic and environmental politics of constitutional law, and the constitutional law of economic and environmental politics; either approach on its own is insufficient to make sense of Canada's crude politics of carbon pricing, pipelines, and environmental assessment. (12) By drawing inspiration and guidance from the legal-pluralist theory-cwm-methodology utilized with so much illumination by Macdonald and Wolfe in their magisterial analysis of the relationship obtaining between the Constitution and Canada's changing national policies, (13) I examine extant case law and doctrine, formal legal submissions, the statements of public officials in the news media, and the law-and-policy discourse of a wide variety of stakeholders in order to show that the "peril of pipelines and the riddle of resources" is inextricably bound up in our understandings and invocations of constitutional law doctrines and law reform disputes, and vice versa. The result is endemic climate inaction, distraction, and delay that we can no longer afford.

  1. Not your Father's Federalism: The Resistance to Carbon Pricing

    In 2018, Parliament passed the Greenhouse Gas Pollution Pricing Act. (14) The GGPPA implements the federal government's Pan-Canadian Approach to Pricing Carbon Pollution plan (15) issued in 2016, which arose out of a First Ministers' meeting convened earlier in 2016 by the government--resulting in the Vancouver Declaration (16)--before the government signed the UN Paris Agreement on climate change. (17)

    Pursuant to the First Ministers' agreement expressed in the Vancouver Declaration to cooperatively collaborate on a national approach to climate change policy, the Working Group on Carbon Pricing Mechanisms was established. The Working Group's consensus-based final report--supported by all provinces and territories--concluded that pricing carbon is among the most efficient policy approaches to reducing greenhouse gas emissions. Pricing carbon allows industries and individual consumers to identify how they will reduce their own emissions, and encourages innovation to find new ways to do so. (18) Based on the Working Group's conclusion, the federal government's Pan-Canadian Approach to Pricing Carbon Pollution explains that "economy-wide carbon pricing is the most efficient way to reduce emissions, and by pricing pollution, will drive innovative solutions to provide low-carbon choices for consumers and businesses." (19) On this basis the government established the pan-Canadian Benchmark for carbon pricing. (20) The Benchmark establishes carbon pricing as a foundational component of Canada's national climate policy. Specifically, the Benchmark embodies the policy objective of ensuring "that carbon pricing applies to a broad set of emissions throughout Canada with increasing stringency over time to reduce GHG emissions." (21) The Benchmark further provides that the federal government will implement a "backstop" carbon pricing system in provincial and territorial jurisdictions that fail to implement regulations that align with the Benchmark (or where a province or territory requests the government's backstop). (22)

    In May 2017 the...

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