13 November 2023
The Supreme Court’s opinion on the IAA is immediately important for new major projects in Canada, but it also signals the constitutional vulnerability of Ottawa’s pending legislation for clean electricity standards, an industry-specific cap on greenhouse gases from oil and gas, and quotas for sales of electric vehicles. [...] To avoid miring Canadian climate policy in protracted uncertainty, the federal government should expedite clarity on its jurisdiction for these proposed regulations by referring the questions around constitutionality directly to the Supreme Court. [...] (I addressed the unprincipled inconsistency of Ottawa’s decision to exempt heating oil from the fuel levy elsewhere.) The federal side says amendments to the IAA will be simply “surgical,” but core components of the legislation require revamp. [...] Notably, the Supreme Court majority also chastised Ottawa for attempting to “do an end run” around the limits of federal jurisdiction for GHGs. [...] The majority stressed that its earlier decision upholding the federal carbon pricing backstop did confer wide-ranging jurisdiction for the federal government to regulate every activity that emits GHGs: “legislation with respect to roadways, building codes, public transit and home heating, for example” remains outside federal jurisdiction.