THE UNWRITTEN CONSTITUTIONAL PRINCIPLE OF ECOLOGICAL SUSTAINABILITY: A SOLUTION TO THE PIPELINES PUZZLE?

• Author: Collins, Lynda

"A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework". (1)

"Our common future, that of every Canadian community, depends on a healthy environment." (2)

Abstract

This Article explores whether recognizing an obligation of ecological sustainability as an unwritten constitutional principle (UCP) would assist government decision-makers and courts in addressing the many competing imperatives raised by the problem of petroleum pipelines. I argue that if the rule of law is the foundation of our society, then ecological sustainability is the bedrock on which it stands. Moreover, an ecological UCP would assist courts hearing pipeline-related disputes in interpreting environmental legislation, supervising the discretionary decisions of environmental regulators, adjudicating environmental claims under the Charter, and/or determining environmental powers under sections 91 and 92 of the Constitution Act, 1867. In particular, the UCP of ecological sustainability strongly militates in favour of upholding environmental legislation where there is even a slight jurisdictional toe-hold for the relevant level of government. The Article will also contrast how a sustainability analysis of pipelines differs from one grounded in the right to a healthy environment --the other major avenue for constitutional environmental protection. The Article concludes that while the right to a healthy environment arguably does not clearly resolve the pipeline puzzle (since such a right could equally be violated by alternative methods of transporting petroleum products, notably train transport), an unwritten constitutional principle of ecological sustainability points clearly to the need to divest from fossil fuel infrastructure and aggressively invest in renewables.

1. Introduction: the Canadian pipelines conundrum

   Fossil fuel pipelines implicate nearly every environmental question one can imagine. (3) Indeed, the catalogue of issues raised by pipelines reads like the syllabus of a typical environmental law course: constitutional jurisdiction over the environment, environmental justice, Indigenous environmental rights, environmental assessment, endangered species, pollution, ecological economics, etc. The economic argument for moving oil sands product to market through pipelines is relatively straightforward, (4) if one discounts the very serious economic implications of climate change (5) and pipeline spills. (6) However, the environmental costs of pipelines should give us pause. The impacts of building more pipelines range from temporary localized pollution to global repercussions reaching indefinitely into the future. (7) Canadian pipeline projects may threaten the health of whales--and humans--in Canada but may also contribute to global trends that endanger citizens of low-lying island nations halfway around the world. (8)

   Pipelines raise legal challenges at the municipal, provincial, federal and international levels. In particular, the construction or expansion of major pipeline projects makes it virtually impossible for Canada to meet its international climate commitments under the Paris Agreement, (9) In Canada, pipelines exist to facilitate the exploitation of natural gas and tar sands oil that cause greenhouse gas emissions during their extraction, refining, and end use. (10) Thus, in addition to the particular effects of construction and operation, pipelines also connect unsustainable production to unsustainable consumption. At the same time, industry, several governments, some First Nations, and many ordinary Canadians seem to view petroleum pipelines as necessary conduits for the economic lifeblood of the country. (11) As Chalifour aptly puts it, "[i]f there were to be a competition for the most polarizing sustainability challenge in Canadian politics, pipelines might emerge as the winner." (12) How can law and policy solve the puzzle of pipelines?

   This paper argues that Canadian environmental law--both generally and as applied to petroleum pipelines--is in need of a fundamental organizing principle. In particular, courts should recognize ecological sustainability as an unwritten principle of our Constitution (UCP). As a lodestar for environmental policy, ecological sustainability could clarify the limits of discretionary environmental decision-making, assist courts in interpreting environmental legislation, provide important context for division of powers arguments in environmental cases, facilitate a respectful relationship with Indigenous legal orders in Canada, and complement rights-based approaches to environmental protection under the Charter. In each case, the UCP of ecological sustainability would clarify the debate over Canada's climate policy in general and the puzzle of pipelines in particular.

   The Article begins in Part 2 with an analysis of the fatal flaws in Canada's existing environmental law regime. Part 3 introduces an alternative approach to environmental law and governance--the ecological law paradigm--with its central concept of sustainability. Part 4 considers the place of ecological sustainability in Canada's constitution, imagining how a UCP of ecological sustainability would assist decision-makers in resolving environmental dilemmas across a range of issues. Part 5 applies the proposed UCP to the pipeline problem and demonstrates how a constitutional principle of ecological sustainability could guide courts in resolving the inevitable litigation that erupts around pipeline projects. The Article concludes that ecological sustainability is indeed an unwritten constitutional principle in Canada, and that such a principle points clearly to the need to divest from fossil fuel infrastructure, including pipelines.

2. The broken paradigm of conventional environmental law

   Environmental law as we know it has achieved many significant victories, saving countless human lives, bringing certain species back from the brink of extinction, and improving quality of life for millions of people around the world. (13) However, when assessed against the crucial parameter of sustainability--that is, the capacity of societies to survive and thrive over the next 50 years and more--conventional environmental law has arguably been a "colossal failure" (14) in Canada and around the world. A robust body of scholarship demonstrates that conventional environmental law has not yet achieved sustainable environmental protection, even in well-resourced nations such as Canada. (15) Collectively we have failed to manage marine and terrestrial ecosystems and, crucially, the climate, in ways that can ensure the long-term survival of human societies. (16) The voluminous literature on point reveals that the reasons for this failure are many.

   For example, environmental regulatory agencies tend to be highly complex, isolated from each other and from ecological realities, inaccessible to the non-expert public, and vulnerable to political and economic pressures that have no respect for non-negotiable environmental imperatives. (17) Meanwhile, courts have habitually deferred to governmental decisions in the area of environment, even where such decisions are palpably unsustainable. (18) The Canadian context is particularly challenging; Canada's environmental governance has historically been weakened by jurisdictional ambiguity (19) and our economic over-dependence on natural resources, particularly fossil fuels. (20) Moreover, Canadian environmental regulators, especially in the oil and gas sector, (21) have been notoriously "subject to 'regulatory capture', meaning that the corporations and individuals subject to environmental regulation become 'clients' whose interests prevail over the broader public interest that the government is supposed to defend". (22) Under the pressure of multiple distractions from the core mandate of environmental protection, Canadian environmental law has too often ignored the ecological context in which pollution and development occurs. (23) In particular, it has chronically failed to adequately assess the cumulative impacts of environmentally destructive activities, regulating each project (or polluter) as if it existed in splendid isolation. (24) This approach is utterly divorced from ecological reality, and cannot produce a healthy environment for present or future human and non-human beings. (25)

   Pipelines are a case in point. (26) As Paien et al have noted, the true environmental costs of pipelines result from "the cumulative effects of [extraction], refineries, ports, pipelines, railways and a fleet of transoceanic supertankers". (27) Moreover, while pipeline accidents may be locally or even regionally devastating, (28) by far the most serious impact of pipelines involves their contribution to climate change. (29) Yet both the National Energy Board and the federal government have historically been reluctant to address the cumulative GHG emissions that will flow from various proposed pipelines (although, this may change with the introduction of Bill C-69 reforming the National Energy Board and introducing the Impact Assessment Act). (30)

   The consequences of Canada's confused and conflicted environmental law regime are severe. Nine in ten Canadians believe that the right to a healthy environment should enjoy constitutional protection. (31) However, despite the centrality of the environment to Canadian culture and economy, (32) Canada ranks very poorly in comparative analyses of environmental performance in developed countries. (33) For example, the Conference Board of Canada has consistently ranked Canada fifteenth out of seventeen large, wealthy industrialized nations on environmental performance. (34) Indeed, Canada has developed a reputation as an environmental "laggard in both policy innovation and environmental performance, known for inaction and...