The timid Supreme Court decision on Canada’s Impact Assessment Act: An incremental step away from ecological law
Human activity and nature. Credits: Geoff Garver
The division of federal and provincial powers in Canada was laid down at the time of confederation in 1867, when environment was not the category of concern that it has become today. The systemic problems of toxic chemicals and waste, plastics waste and industrial pollution that Canada and the world grapple with perpetually today were not on the public agenda. Climate change and biodiversity loss were not the existential crises, still eluding adequate political solutions, that they have become in the 21st century. Unfortunately, the Supreme Court of Canada balked at the latest opportunity to give Canada the tools it will need to face its environmental future. Its ruling marks an incremental step away from the ecological primacy that is central to ecological law, according to which human activity must strictly remain within ecological bounds.
Who knows what under-the-radar factors influenced the Supreme Court of Canada’s split decision finding that the federal government overstepped the bounds of federal jurisdiction on environmental issues in adopting the Impact Assessment Act, 2019? Maybe unstated fears about unsettling Canada’s weak and outdated federalism or undermining Canada’s troubling dependence on a resource economy too much were at play. Perhaps some judges in the majority were swayed by sentimentality toward outgoing chief judge Catherine Ann Fraser of the Alberta Court of Appeals, whose swan song after three decades leading that court was the opinion, appealed to the Supreme Court in this case, that opened with the astonishing claim in paragraph 6 that the Impact Assessment Act posed an existential threat to Canadian federalism on the same order as climate change. She unconvincingly appealed to the principle of subsidiarity, ignoring that although subsidiarity holds that authority should be exercised at the most local level possible to address the concern at hand, with a global crisis like climate change, the lowest possible level is global.
In any event, a majority of the Supreme Court’s judges, including the Chief Justice, largely agreed with her flawed analysis and balked at following the Court’s own logic and trends in recent years on the confusing divide between federal and provincial jurisdiction on environmental matters. It seemed to extend federal jurisdiction in the case involving the federal carbon price law (reversing the Alberta Court of Appeals), but it is drawing some kind of a new line here (largely agreeing with the Alberta Court of Appeals).
A tar sand site in Fort MacMurray, AB (April 2013). Credits: Geoff Garver.
The problems the court’s majority perceived in the impact assessment law likely can be corrected fairly quickly. The first main problem the Court found was that the process for implementing the Act to “designated projects” with “effects within federal jurisdiction” did not clearly limit various decision points only to projects with those federal effects. This seemed especially troubling to the majority of the Court in regard to the use of public interest factors to deny approval of a project. The Court said the federal government gave itself too much leeway to rely on other factors that went beyond federal jurisdiction. That is probably the easier set of fixes to make to the impact assessment scheme.
The more serious problem is that the Court said that the Act includes an over broad definition of “effects within federal jurisdiction” and it focused on the possibility that the mere fact that a project would produce greenhouse gas emissions that leave the province - essentially, any project that produces them - gives the federal government too much authority over too many projects that are within the scope of provincial jurisdiction (i.e., authority that exceeds the bounds of federal jurisdiction on environmental issues). However, the Court in previous cases has said that the federal government has jurisdiction over projects with interprovincial effects, such as those that pollute interprovincial rivers. The dissenters correctly saw no meaningful distinction between greenhouse gas emissions and other kinds of interprovincial pollution, and noted that taken as a whole, the Act would only apply in the case of non-trivial out-of-province greenhouse gas emissions effects – a position with which the federal government agreed. But the majority seemed to take its timid approach simply because of the sheer numbers of projects that potentially could be brought under federal authority - especially the authority to block projects because of their effects within federal jurisdiction, and especially projects that produce greenhouse gases. Heaven forbid that Canada’s federal government should have a nationwide capacity to address pollution, during an existential climate change crisis, that otherwise would fall through the cracks of our federal-provincial jurisdictional maze for environmental questions! This part of the majority decision especially is poorly reasoned and explained. The troubling problem is that the Court has left open the door for provinces to externalize their out-of-province pollution, including greenhouse gases, with no clear way for their impacts to be considered and addressed under federal or provincial impact assessment law in Canada. The archaic divide on environmental jurisdiction that the Court affirmed leaves Canada with a weaker capacity to address nationwide and global environmental problems than most other countries or regions with a federal structure have, most notably the United States and the European Union.
The federal government should be able to adjust the definition of “effects within federal jurisdiction” to narrow the number of projects that will be included, so as to tailor the scope of the Act to comply with the very convoluted set of guidelines that have emerged over the years from the Court’s cases on environmental jurisdiction, especially when the federal government is relying on its Peace, Order and Good Government (POGG) catch-all powers. The POGG power is what the Court found justified the carbon pricing scheme in the Greenhouse Gas Pollution Pricing Act case. The fix may be as simple as being more clear that the Act only applies to non-trivial or significant effects within federal jurisdiction, not effects with no minimum threshold. The government might even be able to maintain the reach of the current Impact Assessment Act, to the extent the Court’s opinion can be read as saying to the federal government, “You did not show your work.”
But let’s not forget that, if this decision hobbles one federal tool to address climate change and perhaps other kinds of interprovincial environmental impacts, the federal government has decided to hobble another much more important tool of its own accord. And the effects of the government’s own timid actions on climate are far and away the more serious problem for climate change. Under a former Greenpeace activist who is now Minister of Environment and Climate Change, Canada, unlike many other countries such as Australia, the United States and Norway, allows downstream emissions from oil that is developed in Canada to be ignored completely under federal impact assessment law. This was the case in foreign investors’ (the profits don’t stay in Canada) Bay du Nord project to develop oil deposits 1.2 kilometers below the ocean surface off the coast of Newfoundland, approved under the Harper government’s weak environmental assessment regime. But it also the case in the federal government’s deceptively named and absurdly limited Strategic Assessment of Climate Change and its regional assessment of deep sea oil exploration off of Newfoundland and Labrador in and around a marine refuge under the Trudeau government’s impact assessment regime (Canada’s Minister of Natural Resources says the marine refuge may have to be sacrificed in order to allow eventual oil development to go forward). The strategic assessment only covers the generalized approach the federal government follows in assessing climate change impacts under the Act - it’s more of a technical guide than a strategy on how to broadly assess the climate change impacts of projects, programs and policies across the federal government. One “strategy” in this assessment is to categorically exclude consideration of downstream emissions from all projects subject to impact assessment in Canada. The regional assessment of deep sea oil exploration opens the door to a massive new source of greenhouse gas emissions, in clear defiance of science-based warnings that a liveable climate means no new oil exploration must occur, without taking into account the most serious ecological consequence: the impact of burning that oil on Earth’s climate system. Let’s not forget as well that the federal government used Canadian taxpayer’s money to purchase the Transmountain oil pipeline that is now projected to significantly increase the amount of bitumen syncrude that can be piped to the coast for export to China and other foreign destinations.
Certainly, the Supreme Court’s Impact Assessment Act decision is not a complete disaster for environmentalists, nor is it the huge victory that Alberta Premier Danielle Smith thinks it is. The Court largely affirmed the broad authority it has already recognized for the federal government to address impacts of projects that fall under provincial approval authority as well. The so-called double aspect doctrine, by which exclusive federal and provincial powers can nonetheless overlap and apply to the same situation, is well established. The decision’s worst aspect, however, is that it is a potent reminder of the systemic blindness in the dominant myth of settler-colonial Canada to the broad and perilous ecological context that Canada and the entire world now face. Judge Greckol, the lone judge of the Alberta Court of Appeals who found the Impact Assessment Act entirely constitutional, captured some of this when she wrote:
Within this country, Canada geese will fly over tailings ponds north of Fort McMurray without heed of jurisdiction. Fisheries will be disrupted by damming waterways or constructing pipelines that transcends provincial boundaries. Effluent from a potash mine in Saskatchewan may affect the health of Québécois or Indigenous peoples living downstream along a river system that has no regard for provincial borders. A proposed coal strip mining operation on the borders of Banff or Jasper National Park may affect the roaming elk herds whose breeding grounds are deep within the Parks or may contaminate the headwaters of rivers meant to provide clean drinking water to Alberta ranchers and Indigenous communities. An oil spill in Clayoquot Sound may contaminate beaches in the wilderness beloved by Canadians, jeopardize the livelihood of local Indigenous peoples, disrupt the tourism economy of Tofino residents, and pollute coastlines abroad. Environmental concerns engage the interests of a complex matrix of jurisdictions and all Canadians, affecting the air we breathe, the water we drink, the food we eat, and are best addressed as the shared responsibility of all levels of government, with Indigenous peoples the first among equals, given their historical stewardship of and continued reliance upon the land. (Dissenting opinion starting at paragraph 436 in the Alberta Court of Appeals ruling on the Impact Assessment Act reference).
Judge Greckol’s opinion acknowledges the undeniable interconnectedness of the land and life that makes up Canada. Canada’s political economy, like many others across the globe, emerged from the co-evolution of colonialism and capitalism since the 15th century and is grounded in notions of property, national sovereignty, human-nature dualism and growth-insistent capitalism that greatly impede any real progress toward confronting the dire ecological challenges of the Anthropocene. The dominant narrative in Canada and the world that sees land, territory and life as property to be exploited for profit lacks the ecological literacy that is now needed to confront these challenges. The Court and the Minister of Environment and Climate Change would serve Canada better if they improved their ecological literacy.
Finally, despite serious economic challenges for many Canadians, Canada remains a country of vast overconsumption. According to ecological footprint science, the average Canadian has a footprint that is almost five times greater than a globally sustainable footprint. Yet, at the same time, our economy operates systemically to create valid fears and realities among many overconsuming Canadians about economic challenges in meeting their housing, food and other needs as prices rise in the global inflationary trend that emerged from the Covid pandemic. This profound conundrum is very rarely put forth in the media. It certainly wasn’t easy to discern, if it was discernible at all, within the Supreme Court’s unfortunate decision in the Impact Assessment Act case.