My Horse for a Civilization: Regulating Carbon Emissions and Emergence of Climate Change Law

A century ago, Western civilization was still extensively using domesticated animals, specifically the horse, as one of the main means of transportation. Though domesticated for at least 6,000 years, this animal provided an invaluable means for people, goods, and services to move throughout North America, especially in inland areas away from shipping routes.

As could be expected, the common law at the time contained ample number of decisions that related to horses or incidents connected to horses. The horse was a central piece of technology that enabled civilization. Of course, all of that changed with the introduction of the Model T Ford in 1908, with the car slowly displaced this long-standing technology. And the law changed with it.

Stephen Carlisle, President and Managing Director of General Motors Canada, wrote in The Globe & Mail in 2016,

The shift from horses to cars was actually a 50-year period of change and transformation complete with large safety, environmental and economic challenges, not unlike today.

Congestion and accidents became a significant problem on North American roads that were crowded with more than 20 million horses. In New York in 1900, about 200 people were killed by unpredictable horse-drawn vehicles – close to the 242 vehicle fatalities in the same city in 2015.

But city leaders were focused on another problem. The typical horse annually consumed about five acres of hay and grain – good for the rural economy. However, the same horse produced a very large volume of manure and flies – bad for the urban setting. One prognosticator estimated that, unabated, horse droppings would rise to the level of third-storey Manhattan windows by 1930.

Necessity being the mother of invention, automotive technology progressed rapidly, and cars overtook horses on city roads in the 1920s, sparking a national economic boom, but also new challenges for roads and infrastructure. We’re looking at similar, significant challenges and opportunities today, minus the piles of droppings.

More recent innovations, such as the advent of the Internet, gave rise to discussions about whether a specialized area of law should be developed to deal with new challenges and opportunities. Frank Easterbrook, in his 1996 article, Cyberspace and the Law of the Horse in The University of Chicago Legal Forum, rejected the notion that a specialized area of law should be developed for these new technologies,

Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on “The Law of the Horse” is doomed to be shallow and to miss unifying principles. Teaching 100 percent of the cases on people kicked by horses will not convey the law of torts very well. Far better for most students-better, even, for those who plan to go into the horse trade-to take courses in property, torts, commercial transactions, and the like, adding to the diet of horse cases a smattering of transactions in cucumbers, cats, coal, and cribs. Only by putting the law of the horse in the context of broader rules about commercial endeavors could one really understand the law about horses.

Easterbrook’s position was soon countered by Lawrence Lessig, who argued in the Harvard Law Review that a specific focus on cyberlaw demonstrates some unique challenges around the regulation of the Internet due to its very design. Traditional legal rules should be employed when they are most effective and socially desirable, but should not ignore the technological dimension. In other words, traditional problems or challenges, such as interjurisdictional enforcement or privacy concerns, manifest themselves differently online,

The threats to values implicit in the law — threats raised by changes in the architecture of code — are just particular examples of a more general point: that more than law alone enables legal values, and law alone cannot guarantee them. If our objective is a world constituted by these values, then it is as much these other regulators — code, but also norms and the market — that must be addressed. Cyberspace makes plain not just how this interaction takes place, but also the urgency of understanding how to affect it.

These debates continue even today, with The Law of the Horse being discussed in the context of blockchain law, regulations and policy. To that effect, Canada has finally released new regulations for cryptocurrencies (referred to as fiat or virtual currencies) under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. New technologies invariably require new laws.

Kevin Werbach argues in 2018 in the Florida Law Review that The Law of the Horse debates extend to contemporary legal challenges created by technology and innovation, including on-demand services such as Uber and Airbnb (also known as the sharing economy), the Internet of Things, and Big Data. Instead of a battle between regulation and innovation, he extends Lessig’s analysis to promote greater transparency or procedural fairness, ensuring that new laws are subject to evaluation and critique, and exert the least overreach, to ensure that rules do not go further than necessary,

Legal regimes exist to protect certain values. If those regimes fail, the answer is not to abandon the values; it is to adapt the legal institutions or develop new regimes more reliant on market forces, norms, or technology. Regulation can evolve, but only once regulators and regulated engage with one another in good faith. The longer the pattern of oversteer persists, the greater the cost to innovation, on one side, or societal values, on the other. If anything, the innovators stand to lose the most by delaying government involvement in adopting reasonable solutions. Leading on-demand providers are already beginning to recognize this.

Arthur Cockfield of Queen’s Law looks at technology more broadly as any human modification of the environment for a useful purpose, and describes in the Manitoba Law Journal in 2004 two different approaches towards legal analysis in light of technological change:

  1. a ‘liberal’ approach that is more sensitive to the ways that technological change affects
    interests, while often seeking legal solutions that are less deferential to legal precedents and traditional doctrine; and,
  2. a ‘conservative’ approach that relies more on traditional doctrinal analysis and precedents

Lessig’s response to the Internet could roughly be described as the former, with Easterbrook’s being better characterized as the latter.

Preserving traditional interests could be considered as important when the technologies themselves affect, change or mask what those interests are, and Cockfield suggests the forward looking and flexible liberal approach might paradoxically protect these interests better because it scrutinizes the relationship between law and technology. In doing so, it creates better policy outcomes than the strictly conservative approach that ignores the profound impact that technology can have on the law, and its effectiveness,

The liberal approach employed by courts and policy makers is categorized for organizational purposes into the following discrete but related enquiries where legal analysis:

(a) explores the complex interplay between law and technology;
(b) recognizes that the law should respond directly to technology developments that threaten values and interests (“law is technology”);
(c) acknowledges situations where the law can encourage uses of technologies that protect interests (“technology is law”); and
(d) promotes consequential analysis that strives to fit policy developments within current and anticipated technological environments (“is the legal rule scientific?”).

Though drawing on the literature of The Law of The Horse, and the critiques and champions of the development of cyberlaw, Cockfield makes his point most directly with the changes in technology directly impacting the use of the horse,

Legal rules and principles have an interactive, dynamic and complex relationship with technological developments. Take the example of laws that have regulated automobiles, “arguably the most disruptive technology of the past hundred years”. Laws promoted the mass adoption of automobiles in some countries, which in turn created more—often unanticipated—areas that could be subjected to legal regulation. The development of roads in turn fuels demand for more cars, calls for laws to protect driver safety, and even changes how our communities are organized by encouraging commutes from suburbs. In addition, the emissions from cars have promoted global warming, influencing domestic and international law efforts to promote energy conservation. Finally, the fuel required for cars shapes, at least to a certain extent, international foreign policy as gas importing nations tailor their policies to ensure continued supply.

More recently, Gregory Shill of the University of Iowa College of Law describes in The Atlantic how the law effectively compels the use of the automobile, repeating the 1977 SCOTUS reference in Wooley v. Maynard, where it was likened to “a virtual necessity for most Americans.” He claims that government has gone beyond the desire to drive, to effectively the newer technology, and instead have subsidized this technology and penalizing people who don’t do it,

It’s no secret that American public policy throughout the 20th century endorsed the car—for instance, by building a massive network of urban and interstate highways at public expense. Less well understood is how the legal framework governing American life enforces dependency on the automobile. To begin with, mundane road regulations embed automobile supremacy into federal, state, and local law. But inequities in traffic regulation are only the beginning. Land-use law, criminal law, torts, insurance, vehicle safety regulations, even the tax code—all these sources of law provide rewards to cooperate with what has become the dominant transport mode, and punishment for those who defy it.

The new horse, the automobile, has indeed transformed the law over the course of a century. Although the Law of the Horse may not actually exist as a coherent and discrete area of law, the Law of the Automobile also fails simplistic characterizations, but has been enormously influential on the existing body of law. Shill’s question is whether those underlying values in society have been maintained throughout all of those transformations.

In his forthcoming article in the New York University Law Review, Shill details further the social costs of the automobile and its interplay with the law, questioning whether subsidies for this lifestyle should continue. He illustrates how at the automobile, many legislatures reacted with fear and outrage. Early regulations included advanced notice one week in advance prior to automobile use, or hiring a person to walk in front of a car with a warning flag to all those who may encounter it. Safety concerns were eventually addressed when industry members mobilized to change the law and the terminology used in regulation. Our entire culture shifted with our way of life, due to the new technology that was being adopted.

Modern automobile manufacturers recognize that we are on the threshold of yet another technological change, which is why Carlisle recounts his company’s experiments with self-driving cars, longer-range battery electric vehicles, and other innovations in telecommunications and mobile computing that will invariably match the shift away from a carbon-based economy. It’s no surprise he references the 2016 Federal Budget‘s support for a strong and innovative automotive sector,

The automotive industry is among Canada’s leading employers and exporters, valued at $17 billion per year and directly employing more than 125,000 Canadians from automotive assembly to parts production.

As the global automotive industry is evolving toward the production of cleaner, more connected vehicles, Canada has an opportunity to apply its strengths in areas such as lightweighting and information and communications technologies to designing and building the cars of the future. The Government of Canada partners with the Government of Ontario and the automotive industry to attract strategic, large-scale research and development projects focused on new vehicle technologies through the Automotive Innovation Fund.

The Budget highlights these efforts given the importance of the Federal government developing an effective strategy to ensure the long-term competitiveness of the sector, and to maximize the support that they offer it. These are complex policy decisions, which will impact how our regulation and laws reflect the shifting economy. They are changes that are directly looking at the interplay between the law and new technologies, developing the appropriate response in light of Canada’s values and interests, recognizing that law and policy can protect the use of these interests through new technologies, and are promoting scientifically-drive policies in light of these anticipated changes.

Another way to look at this is to consider these future challenges as the new Law of the Horse to the most pressing issue facing western civilization – climate change. The modification of our environment for purposes useful for us, including the use and promotion of the automobile, has had a profound effect on our civilization, demanding a political and legal response. The transportation sector, and our use of automobiles, is one of the most significant sources of greenhouse gas (GHG) emissions in Canada.

After reviewing the debate of cyberlaw, Ruhl & Salzman make the case in the Duke Law Journal in 2013 for a new, sui generis area of law of climate change law, distinct even from environmental law. Doing so can provide a forceful political statement that develops its own authoritative texts and foster new laws and policies, and improve efficiency by encouraging highly technical and deep knowledge into a new field of specialized knowledge. Pointing to the development of environmental law and health law, a new paradigm allows for the law to be more responsive to contemporary challenges.

Ruhl & Salzman suggest there are two possible ways to develop an area of climate change law. The first, which would correspond with Cockfield’s liberal approach, would develop discrete areas of law to create increasingly tight interconnections around climate change challenges. This would help to foster legal doctrines and institutions to coalesce into a distinct and coherent field of law, which would maintain its own principles. The alternative would be to combine different fields that intersect with climate change, specifically to find focused solutions, but would fail to create any overarching principles or policies, disparagingly “forming nothing more coherent than a Law of the Horse.”

In repeating calls by others to develop new ways of thinking about the law in relation to climate change, and to formulate new legal frameworks to deal with the radical changes that will impact our society, Ruhl & Salzman emphasize the limitations with the more conservative approaches towards responding to these challenges,

Given the daunting challenges of this uncertain future, decisionmakers are increasingly concerned about the “adaptation deficit” in climate change law and policy that has amassed over time. Until very recently, the focus on climate change mitigation, particularly reducing greenhouse-gas emissions, has held center stage. Debates over mitigation—how much and how fast to reduce causes of climate change—largely crowded out considerations of adaptation—how best to manage the impacts of climate change…

It stands to reason that the demands of climate change adaptation will present new kinds of challenges and conflicts for public and private legal institutions. It is no surprise, therefore, that a flood of recent scholarship has focused on the implications of climate change adaptation for the law––exploring how law will adapt in fields as varied as insurance, environmental, immigration, water supply, torts, energy, and property, to name just a few––while crosscutting issues such as federalism and human rights are also receiving careful attention.

Perhaps it is only with this backdrop that the Greenhouse Gas Pollution Pricing Act (the GGPPA), which came into force on June 21, 2018, can be understood. The GGPPA relies on broad scientific consensus that human activity creates GHG emissions that contribute to climate change, and that these changes provide an “unprecedented risk” to the environment, including biological diversity, health and safety of our citizens, and our economic prosperity.

The GGPPA employs the polluter pays principle, pricing GHG emissions to create incentives to behavioural change that will lead to the use of cleaner energy and adoption of cleaner technologies. Although some provinces have implemented similar pricing systems, the lack of a coherent and uniform strategy across Canada fails to achieve the goals of protecting our society. This particular component created jurisdictional concerns by the provinces, a couple of whom launched a constitutional challenge against the Act.

The first Reference decision on the GGPPA’s constitutionality was by the Court of Appeal for Saskatchewan, released on May 3, 2019. The court ruled in a 3-2 decision that the GGPPA’s carbon pricing scheme, also referred to as a carbon tax, was not a tax intended to raise revenue for general purposes and is constitutional, even when imposed on provinces that lacked their own sufficient plans by the federal government.

Central to the majority’s ruling was that section 53 of the Constitution Act, 1867 for appropriation of public revenue, and principles of federalism do not require the effect of Parliament’s laws to apply uniformly across the country, in that they only apply to provinces who have not adopted GHG pricing regimes, given that climate change law is effectively an entirely new area of legislation in response to contemporary challenges that were non-existent at the time of Confederation,

[65] …Saskatchewan suggests the strength of its federalism argument is revealed by asking what would happen if a national government, spurned by the electors in a particular province, implemented a tax aimed solely at that province in order to, in effect, punish the electors in question. Saskatchewan submits that, in such a circumstance, the principle of federalism would have to be invoked to invalidate the law. This line of argument is not convincing. The easiest and most doctrinally regular answer to Saskatchewan’s hypothetical problem lies in the doctrine of colourability, not in the principle of federalism. In other words, the punitive law envisioned by Saskatchewan would be struck down not because it offended the principle of federalism but because, in pith and substance, it was not a “tax” within the meaning of s. 91(3) of the Constitution Act, 1867.

[67] This fundamental reality is perhaps somewhat obscured in areas like the regulation of GHG emissions where the constitutional boundaries between federal and provincial authority might be somewhat unclear and where there is at least some room for both levels of government to legislate. Nonetheless, the basic point remains the same. The scope of Parliament’s constitutional authority is not dependent on how or whether a province has exercised its own exclusive jurisdiction. Conversely, and putting the doctrine of paramountcy to the side, the scope of a province’s constitutional authority is not dependent on how Parliament has or has not exercised its jurisdiction.

The majority also concluded the GGPPA was a valid exercise of Peace, Order and good Government (POGG) power under s. 91 of the Constitution Act, 1867, because the core purpose is to ensure minimum standards for an area of national concern,

[128] The significance of Saskatchewan’s argument was not that recognizing GHG emissions as a matter of federal authority would give Parliament comprehensive jurisdiction over every GHG-producing activity. Rather, it was that the production of GHGs is so intimately and broadly embedded in every aspect of intra-provincial life that a general authority in relation to GHG emissions would allow Parliament’s legislative reach to extend very substantially into traditionally provincial affairs. A general legislative authority over GHG emissions would, for example, presumably include such things as (a) the specification of materials and production techniques used in manufacturing and processing, (b) the control of any variable affecting the fuel efficiency of vehicles including tire pressure, engine size and speed limits on highways, (c) the determination of construction and insulation standards for buildings of all sorts, (d) the content of livestock feeds and the size of livestock operations, and (e) the prescription of matters affecting electricity consumption such as the hours of operation of business and service providers. Given the absolutely pervasive nature of GHG emissions, the boundaries of possible regulation in respect of such emissions are limited only by the imagination.

[131] In other words, the problem is not only that recognizing federal jurisdiction over something as broad as GHG emissions would give Parliament wide authority in positive terms. It is that, in negative terms, provincial legislatures would be significantly denied the authority to deal with GHG emissions. Provinces could address such emissions only to the extent laws enacted in relation to provincial matters such as property and civil rights had an incidental impact on them. As the Supreme Court observed in Reference re Securities Act2011 SCC 66 (CanLII) at para 66[2011] 3 SCR 837, “the double aspect doctrine, allows for the concurrent application of both federal and provincial legislation, but it does not create concurrent jurisdiction over a matter (in the way, for example, s. 95 of the Constitution Act, 1867 does for agriculture and immigration)” (emphasis in original).

[emphasis added]

Underlying this analysis, the SKCA is acutely aware of the risk of overreach, where the legislative power of Parliament would go farther than necessary to address the policy concern raised.

Because carbon pricing is an essential aspect of the global effort to limit GHG emissions [para 147], national standards of price stringency are clearly of national concern [para 148]. In concluding that GHG emissions are of genuine national importance, they referred to the evidentiary record that “indicates climate change has emerged as a major threat, not just to Canada, but to the planet itself,” requiring the constitution to be interpreted in light of emerging realities [para 144].

Closely following this decision is the Reference decision by the Ontario Court of Appeal, released on June 28, 2019. The 4-1 majority here also upheld the constitutionality of the GGPPA, mirroring the SKCA in their finding of national concern under the POGG power, and the characterization of the surcharge as a regulatory fee and not a tax. However, the majority did not accept the broad characterization of the the pith and substance of the GGPPA as proposed by the Federal government,

[76] The purpose of the Act, as reflected in its Preamble and in Canada’s international commitments and domestic initiatives, discussed earlier, is to reduce GHG emissions on a nation-wide basis. It does so by establishing national minimum prices for GHG emissions, through both the fuel charge and the OBPS excess emissions charge. Its effect is to put a price on carbon pollution, thereby limiting access to a scarce resource: the atmosphere’s capacity to absorb GHGs. The pricing mechanisms also incentivize behavioural changes.

[77] The Act’s purpose and effects demonstrate that the pith and substance of the Act can be distilled as: “establishing minimum national standards to reduce greenhouse gas emissions.” The means chosen by the Actis a minimum national standard of stringency for the pricing of GHG emissions.

The ONCA spent more time attempting the classify the GGPPA, noting that the environment did not exist as an expressly identified head of power in 1867. The greater appreciation of environmental pollution today would take it outside of the s. 92(16) general provincial powers, and more closely to the POGG powers similar to pestilence and famine, as it is no longer of a purely local concern,

[104] Establishing minimum national standards to reduce GHG emissions is a new matter that was not recognized at Confederation. The record demonstrates that global warming and climate change and, in particular, the role played by anthropogenic GHG emissions in those processes, were not widely understood by the scientific community until well after Confederation. The existential threat to human civilization posed by anthropogenic climate change was discovered even more recently. Accordingly, it cannot be said that establishing minimum national standards to reduce GHG emissions, as distinct from efforts to reduce local air pollution, was a matter in existence in 1867.

[105] Nevertheless, whether it is regarded as a new matter that did not exist at Confederation or as a matter that, originally of a local or private nature, has become a matter of national concern, the need for minimum national standards to reduce GHG emissions is a matter of national concern in the commonly-understood sense, given the consequences of climate change.

The ONCA used the Crown Zellerbach analysis to ensure that the GGPPA focused on a distress matter to avoid broad characterizations of areas of national concern, using singleness, distinctiveness, and indivisibility. Environmental law itself does not necessarily fit these criteria, but climate change law could, as proposed here through the legislation,

[117] The application of the “provincial inability” test leaves no doubt that establishing minimum national standards to reduce GHG emissions is a single, distinct and indivisible matter. While a province can pass laws in relation to GHGs emitted within its own boundaries, its laws cannot affect GHGs emitted by polluters in other provinces – emissions that cause climate change across all provinces and territories. However stringent a province’s GHG emissions reduction measures, they cannot, on their own, reduce Canada’s net emissions. To use the example mentioned earlier in these reasons, the territories and the Atlantic provinces can do nothing, practically or legislatively, to address the approximately 93.2 percent of national GHG emissions that are produced by the rest of Canada.

[118] The matter is itself indivisible. No one province acting alone or group of provinces acting together can establish minimum national standards to reduce GHG emissions. Their efforts can be undermined by the action or by the inaction of other provinces. Thus, the reduction of GHG emissions cannot be dealt with in a piecemeal manner. It must be addressed as a single matter to ensure its efficacy. The establishment of minimum national standards does precisely that.

[119] The inability of one province to control the deleterious effects of GHGs emitted in others, or to require other provinces to take steps to do so, means that one province’s failure to address the issue would endanger the interests of other provinces: cf. Schneider v. The Queen, at p. 131. This speaks to the singleness, distinctiveness and indivisibility of the matter.

[120] The evidence establishes that a cooperative national carbon pricing system would be undermined by carbon “leakage” in jurisdictions that do not adopt appropriately stringent carbon pricing measures. This is the quintessential case in which the failure of a province to cooperate would undermine the actions of other provinces, and would place unfair burdens on other provinces, potentially subverting a cooperative national scheme.

[emphasis in the original]

Also essential to the transparency or fairness of the GGPPA, as alluded to by Lessig, is that the Act sets out minimum national standards, leaving ample provincial scope to exceed that minimum through their own policies and legislation. In this manner, the GGPPA mirrored the approach of the Model Provincial Act reviewed in the 2018 Securities Reference,

[136] A harmonious reading of the Act, which itself confines its operation to the creation of a national minimum pricing scheme to address a national and international concern, permits it to operate concurrently with provincial laws applicable to the environment in general, and to the reduction of GHG emissions in particular.

Specifically, Manitoba, New Brunswick, Ontario and Saskatchewan are all subject to federal carbon pricing schemes and a fuel levy, as these provinces do not have carbon pricing schemes in place of their own.

Both the SKCA [at para 144] and ONCA [at para 109] emphasized that the choices on whether and how to use tools available to Parliament, and to enact policy to address GHG emissions, is best left to the elected officials, and not judges.

The challenge for policy makers is that they may not have all of the proper tools or information at their disposal to address these problems. A study by Natural Resources Canada earlier this year, Canada’s Changing Climate Report, was leaked prematurely, and revealed that Canada is warming at twice the global rate.

Modelling used in this study provides a projection for low emission scenarios that would require rapid and deep reduction of emissions and near-zero emissions in this century. Higher emission scenarios result in much more significant impacts to Canada, including complete loss of the glaciers in the west, extreme fire weather, water supply shortages, costal flooding, widespread heatwaves, droughts, and wildfires. Climate change law is indeed akin to the pestilence and famines of old.

None of this evidence was before either appellate court this year. Part of the problem with climate change law is that the evidence of harm will invariably come after the fact, and at a time when the harm is irreparable and irreversible.

Both the SKCA and ONCA failed to uphold the GGPPA under the emergency power of the POGG doctrine, but the science clearly demonstrates that a climate emergency is already at hand. Relegating climate change law exclusively to the legislature subjects a crisis to the political whims and the invariable changes in government. Climate change law must demand more.

For this reason, these decisions, while providing an adequately flexible approach towards the new law and new technologies, fails to properly understand the complex interplay between the and how changes are threatening our values and interests. While liberal in their approach in the Cockfield taxonomy, they are not liberal enough. The basis for their constraint however may lie in the fact that both provinces are already appealing to the Supreme Court of Canada.

This inability to fully grasp the scope and the extent of the current crisis also explains the analysis found in the dissents of these appellate decisions. Cockfield would characterize them as conservative in their approach, in that they stick to rigid and formulaic interpretations of the law to attempt to understand and respond to something that is entirely new.

The fuel levy was characterized by the dissent at the SKCA as a tax [para 265], but this is largely given their inability to connect the legislation to the regulatory behaviour sought by the GGPPA [para 305]. Although complete elimination of GHG emissions might be desirable from a climate change law perspective, such immediate and drastic measures are not economically feasible at this juncture. The federal government’s attempt to broadly characterize the GGPPA’s pith and substance as focusing on the cumulative dimensions of GHG emissions may have itself impacted this conclusion [para 311], and may explain the majority in the ONCA’s subsequent more narrow interpretation of the same [see also the ONCA dissent, at para 196].

Once characterized as a tax, the GGPPA would lack both the transparency and the overreach that is required under Lessig’s design to technological changes. The power to tax must have an express and unambiguous delegation of Parliament’s taxing authority [paras 358, 360]. The over 430 references to prescribed definitions, primarily in Part 1, provides Parliament sweeping legislative powers to adapt and modify the GGPPA by redefining words and expressions [paras 364-366].

Similarly, the sole dissent at the ONCA analyzed the GGPPA largely in absence of the context of climate change and the compelling science demanding need for legislative action,

[192] This is a request for the court’s advice on a question of constitutionality. The court is not required to decide anything about the science of climate change in order to provide that advice: all of the governments that are party to the reference – those arguing in support of the constitutionality of the law as well as those opposing it – proceed on the basis that climate change is a real and pressing problem that must be addressed. Nor does this case require the court to decide anything about how climate change is best addressed. That is a question for governments and legislatures, not the court, which has neither the expertise nor the mandate to express any views on the matter.

The urgency alluded to previously by Lessig, of how the GGPPA affects the values underlying climate change law, appears entirely lost in this analysis. This dissent’s caustic remarks about oral submissions relating to the emergency branch of POGG powers appears outright dismissive of this context [paras 216-219]. Instead, the dissent left with hollow, empty, and largely meaningless gestures relying on traditional doctrinal analysis from entirely different factual scenarios, and precedents from a time when such a crisis could not even be contemplated. Unfortunately, this barren approach lacking information and expertise can be found in the public and political realms as well.

In a special edition of Maclean’s, John Geddes explores climate change modelling, and claims that public awareness and knowledge of the coming dangers significantly lags behind the scientific evidence. Climate change is the greatest issue to impact our health in our time, according to the experts he interviews, and the needs are urgent. Some might even call it an emergency.

The greatest resistance Geddes identifies in the responses to climate change has been in carbon pricing,

Taxing carbon pushes industry and individuals to figure out the cheapest ways to burn less fossil fuel, or switch to renewable alternatives. How high must the tax be to do the trick? The Parliamentary Budget Officer estimates $102 per tonne of emissions would achieve the cuts Canada committed to at the UN’s Paris climate conference in 2015. Right now, Ottawa’s controversial carbon tax stands at $20 per tonne, and is slated to climb to $50 by 2022.

And Environment Minister Catherine McKenna recently said the Liberals don’t plan to push it higher, signalling that they’re worried about what voters will tolerate. Conservative Leader Andrew Scheer promises to scrap the tax and substitute his own suspiciously vague plan to require big industrial emitters to invest unspecified amounts in green innovation if their emissions exceed unquantified levels.

He does note that other measures, including regulation of electricity generation and phasing out of coal, can have even more significant effects. But the challenge is that the federal government has little ability to directly impact those areas of GHG emissions. Instead, this is best left to provincial regulation under the GGPPA framework.

Some younger Canadians seem to agree that not enough is being done. In June, a novel class action was launched out of Quebec against the federal government for their inaction or inadequate action to combat climate change. These students claim intentional fault under Quebec’s jus commune civil law, as well as the right to life and the security of the person under s. 7 of the Canadian Charter and s. 1 of the Quebec Charter, the right to live in a healthful environment in which biodiversity is preserved under s. 46.1 of the Quebec Charter, and intergenerational equality under s. 15 of the Canadian Charter and s. 10 of the Quebec Charter.

Arguments by the government included that legal action should not be used to override executive powers of the government, and that this would be an unjustified interference in the political sphere. On July 11, 2019, Justice Gary D.D. Morrison of the Superior Court of Quebec refused to grant certification to this class, but the applicants intend to appeal. While this action is unlikely to succeed, the immunity that government has normally received for what are otherwise called “natural” disasters may be slowly eroded in law if there are clear examples of failures to mitigate or respond appropriately.

In a companion piece in Maclean’s special edition, Alanna Mitchel points out that a carbon free economy is possible, without sacrificing the lifestyles we are accustomed to. It requires rearranging our economic incentives, including the significant subsidies for fossil fuel and related industries. Business leaders like Carlisle appear ready to embrace this challenge, finding the economic incentives to do so in a new economy,

Decarbonizing the whole economy is within grasp…

For David R. Boyd, the metamorphosis in transportation will be measured in bird song. Today, electric vehicles are routine. In a carbon-free 2050 world, they will be ubiquitous, says Boyd, a UN Special Rapporteur on human rights and environment and a professor of law, policy and sustainability at UBC.

“You’ll be living in a city that is quieter and cleaner, where you can actually hear the birds singing on the way to work,” he says. The noisy internal combustion engine will be all but obsolete. Cities will be built for walking and cycling, featuring plentiful electrified public transit. This is not a utopian vision, he says. “Everything I’ve said is grounded in trends that are happening today.”

It’s an incredible vision Mitchel lays out, but it’s one that even she concedes requires decisive and immediate action. The political tensions and ideological differences between the levels of government simply does not allow for that to occur without the GGPPA in place right now.

We must all abandon our modern day horse equivalents, the fossil fuel burning cars and related aspects of a carbon based economy, and instead embrace a paradigm of climate change that should fully inform our policies and laws. We must do so now, for our very civilization is at stake.


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