With the unveiling of a draft of Ottawa’s new
clean electricity regulations last week, the Liberals have made the opening move in a high-stakes chess game between the federal government and the provinces that could play out over the next decade and a half. But if one thing is clear, it’s that they won’t be playing by the rules.
Environment Minister Steven Guilbeault says that the new regulations — which are designed to phase fossil fuels out of the power supply by mandating that generation be largely emissions-free by 2035 — are being announced 12 years before they take effect, in order to give stakeholders enough lead time. “They want to know what the rules of the games will be,”
he said.
Indeed they do. Except in Ottawa, the rules of the game seem to change on a near daily basis.
What’s the point of having a federal system in the first place, if everything just ends up being dictated from Parliament Hill?
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The game was supposed to be about incentivizing players to reduce their carbon emissions through a steadily increasing carbon tax. But the Liberals have since decided to add in a host of other rules, including industry-specific emissions caps for the oil and gas sector and tens of billions of dollars worth of subsidies for green special interests. And they threw in a ban on straws that don’t disintegrate in your mouth, for good measure.
The carbon tax itself was imposed, not through the traditional method of dangling gobs of money in front of cash-strapped premiers, but by forcing the provinces’ hands from on high. This resulted in a lengthy court battle between Ottawa and three provinces — Alberta, Saskatchewan and Ontario.
The
Supreme Court ultimately used the “rarely applied doctrine” of “national concern” to justify the federal government’s intrusion under
the Constitution’s “peace, order and good government” (POGG) clause.
The court took
pains to stress that the provinces have “autonomy” over their constitutionally entrenched powers, and that the judiciary must exercise “great caution” when finding that a matter constitutes a national concern. Nevertheless, in a 6-3 ruling, the majority threw caution to the wind.
The carbon tax isn’t actually a tax, you see, it’s merely a “regulatory charge.” And the federal government isn’t forcing a regulatory regime upon the provinces, it’s simply setting a “minimal national standard.” The provinces are still free to legislate as they see fit. So long as they further the prime minister’s goals.
Of course, it didn’t matter how limited in scope the Supreme Court ruling was. Because as we know, once you recognize that climate change is so great a concern as to justify the federal government’s intrusion into traditional areas of provincial jurisdiction, you open a Pandora’s box that can be used to justify regulating everything from electricity, to natural resources, to transportation, manufacturing and agriculture.
This time around, as one law professor
told the Post, the clean electricity regulations appear to be designed to take advantage of the federal government’s powers of criminal enforcement. Best not to tempt fate by claiming that the POGG clause allows Ottawa to regulate everything under the sun, I suppose.
Especially since, when it comes to electrical generation, a plain reading of the Constitution couldn’t be more clear: “In each province, the legislature may exclusively make laws in relation to … the generation and production of electrical energy.”
If we go the hydro route, which 22 rivers would he suggest we dam up to provide this electricity?
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The clean electricity regulations won’t come into effect until 2035. At that point, they will hit like a ton of bricks, imposing severe penalties on dirty sources of electricity. Before then, they will merely serve as a warning, of no legal force or effect.
While New Brunswick and Nova Scotia have also expressed their opposition to the regulations, the most vocal opponents have been Alberta and Saskatchewan,
provinces that generate a majority of their power from fossil fuels. Notably silent is Ontario, where nearly 90 per cent of the electricity supply comes from non-emitting sources.
Quebec, which is generally a staunch defender of provincial rights, also produces most of its power from hydroelectricity, while the northern territories have been given a free pass to continue burning fossil fuels with abandon. It’s a divide-and-conquer strategy that’s sure to further alienate the Prairie provinces, but may end up having little effect on the Liberals’ electoral chances.