With the climate crisis dominating so many headlines over the past couple of years, it was fitting to wrap up the first installment of the OBA’s Institute Series with a look at some critical topics and practical concerns – climate change, plastics and the role of federalism in environmental law.
Led by Talia Gordner of McMillan LLP and Jennifer King of Gowling WLG, this session laid out key issues facing Canada and the rest of the world, while providing a pragmatic overview of what environmental lawyers need to know in order to navigate the terrain of different jurisdictions.
Blanketing the entire discussion was the interplay between Canada’s three levels of government – municipal, provincial and federal. Jurisdictional questions provided the foundation of discussion during the 45-minute presentation with the following statement framing the issues and difficulties at hand: “The environment is not a subject matter specifically assigned to one level of government or the other – jurisdiction over environment is shared.”
As King outlined, the country’s highest court has recognized the need for all governments to address critical issues such as climate change. However, the Constitution Act of 1867 did not assign environmental issues to any level of government, so it is expected that jurisdiction is to be shared. This makes answering the question of who has the final say about environmental protections and curbing climate change nearly impossible to answer.
This “primer on what makes constitutional law so interesting” began with a look at how courts address the constitutionality of environmental legislation and how jurisprudence has shifted from “watertight compartments” to a principle of “co-operative federalism”. It then examined current government initiatives to highlight how environmental lawyers can work within jurisdictional ambiguities.
The discussion about what laws are in place or being developed began with the federal government’s plan to ban single-use plastics and how the Canadian Environmental Protection Act is going to be used as a regulating mechanism (i.e., labelling plastics as a “toxic substance”). Provincial and municipal efforts to move forward with their own bans or plans to phase out single-use plastics were also highlighted.
These efforts coincide with changes to the provincial blue box program that shifts the costs from municipal taxpayers to producers. Ontario is using the Resource Recovery and Circular Economy Act, 2016 to bring in these changes, with a transition period between 2023 and 2025.
The “most exciting” topic of the session was about Ontario’s Emissions Performance Standards (EPS) Program for Regulation of Greenhouse Gas (GHG) Emissions and the “whirlwind” environmental lawyers have witnessed over the past few years. Gordner explained the development of provincial plans from the cap and trade program in 2016 to the constitutional challenge of federal regulation of GHG emissions launched by the current government in Ontario to the federal government accepting the EPS program late last year as an alternative to its Output-Based Pricing System.
The constitutionality of the federal Greenhouse Gas Pollution Pricing Act (GGPPA) fittingly brought the presentation portion to an end. A comparison of the contrasting factums of the attorneys general of Canada and Ontario on the constitutionality of the GGPPA summed up the different perspectives, while also providing a good example of how the question of the division of powers is determining how the country deals with the environment and the question of climate change now and in the future.
About the author
Michael Speers is the OBA’s media and communications specialist.