Environmental legislation can serve a variety of important ends. For example, it can regulate water and air quality, manage toxic substances, protect fish and migratory birds and their habitats, and determine how infrastructure and natural resource projects can be developed and operated while minimizing or mitigating adverse effects to the environment. Nevertheless, environmental laws must be carefully crafted to ensure that they respect constitutional limits on legislative authority.
Canada’s Constitution Act, 1867 (the Constitution) sets out the respective legislative powers of the federal and provincial governments. Determining which level of government may lawfully legislate with respect to the environment can be problematic because “the environment” as a subject matter is divided between the federal and provincial powers. This constitutional division of powers can be particularly challenging when one level of government enacts environmental legislation that touches on areas reserved for the exclusive jurisdiction of the other level of government.
In two different challenges to federal legislation – References re Greenhouse Gas Pollution Pricing Act and Reference re Impact Assessment Act – the Supreme Court of Canada (the Court) was asked to interpret federal environmental law in light of Canada’s constitutional division of powers. This HillStudy examines the Court’s advisory opinion that the federal government’s attempt to regulate greenhouse gas emissions through the Greenhouse Gas Pollution Pricing Act was a constitutional exercise of federal authority under the national concern doctrine of the peace, order and good government power set out in section 91 of the Constitution. A companion HillStudy, entitled The Constitution and the Impact Assessment Act, reviews the Court’s opinion with respect to the constitutionality of the Impact Assessment Act.
The Court’s advisory opinions in these two reference cases offer insight into what is, and is not, constitutionally acceptable and why. These are significant decisions that arrive at their conclusions via different routes, and both are likely to inform the development of environmental legislation at the federal and provincial levels for years to come.
Read the full text of the HillStudy: The Constitution and Carbon Pricing
By Sam N.K. Banks, Library of Parliament
Categories: Agriculture, environment, fisheries and natural resources, Executive summary, Law, justice and rights