Constitutional Authority Over Greenhouse Gas Emissions

Volume 46, No 2 ISBN: 1925-8356   |   Courtesy of Canadian Energy Law Edition   |    View Original

Author: Peter W. Hogg

As awareness and concern about global warming increases, Canada’s federal and provincial governments have responded with policies and programs designed to curb greenhouse gas emissions. However, theConstitution of Canada does not specify which level of government has the requisite power to enact the statutes and regulations needed to effectively deal with this pervasive issue. This article explores the constitutionality of a federal program aimed at lowering emissions across the country and concludes that such a program is within the power of the federal government, notwithstanding the fact that it is also within the power of the provincial governments.

The author reasons that the emissions reduction program currently being proposed by the federal government is within its legislative power because its complex administrative procedure ultimately culminates in the requisite prohibition and penalty and has a valid criminal purpose. The article concludes by canvassing other possible heads of power under which the federal government could enact such legislation and by exhorting the federal and provincial governments to co-operate in order to stave off a potentially confusing patchwork of overlapping regulations.

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