The Constitutionality of Federal Climate Change Legislation

Over the last decade, the Canadian government has not managed to produce a comprehensive climate change statute and has failed to adequately consider the constitutional implications of doing so. The Clean Air Bill, an unsuccessful 2006 amendment to the Canadian Environmental Protection Act (CEPA), focused on carbon credit trading and a technology fund credit mechanism to permit certain emissions-heavy industries to mitigate their production of greenhouse gases. However, this bill would likely have infringed on provincial jurisdiction over electricity generation facilities, trumping any attempt to address greenhouse gas emissions beneath the rubric of criminal law. The present federal government’s proposed coal-fired electricity generation regulations are similarly flawed. This paper thoroughly analyzes both pieces of legislation from a constitutional standpoint, using a rich body of case law to offer policymakers invaluable guidance in properly framing legally sound emission reduction statutes.