Sunday, October 07, 2018

On necessary measures

I've previously linked to columns by Paul Wells and Jen Gerson on the coordinated right-wing attack on carbon pricing. (And even the Notley government has made a show of withdrawing from a coordinated federal climate change plan, though without abandoning its own climate change policy.)

But let's not assume that what's being treated as a convenient political argument for now won't produce some blowback. To the contrary, the unilateral withdrawal of provinces from any federal system might ultimately favour the development of stronger federal climate regulation.

From a legal standpoint, one of the primary arguments around the federal government's power to price carbon (among other climate change measures) surrounds the question of whether fighting climate change can be categorized as a "national concern" which cannot effectively be dealt with by the provinces acting independently. On that front, see e.g. Manitoba's legal opinion (PDF) on a "backstop" strategy - particularly to the extent it relied on the assumed fact that a province planned to adopt equally effective measures which failed to receive federal recognition.

Saskatchewan's sad excuse for a plan is the most obvious example of a province falling woefully short of that presumption. But in assessing the necessity of federal action, there might have been some argument available that a single province continuing to stumble in the wrong direction wouldn't have an important enough effect to preclude the achievement of national goals.

With Ontario now on the climate denial side - ceding any claim to basing policy on evidence in favour of anti-tax bombast - there's now no question that the current set of provincial defectors is of a sufficient size to undermine any national action. And every province which adds its name to the list of objectors (and trashes its own climate change measures in the process) will only strengthen that position, making it more likely that courts will recognize a need for federal action in response to a provincial-level vacuum. 

What's more, that point may prove important in political as well as legal terms. In time, enough provincial recalcitrance might lead to a push for a federal plan which serves as a national governing system rather than a mere "backstop".

To be clear, such a system wouldn't necessarily need to represent a less cooperative form of federalism in the sense of failing to account for the position of provinces willing to act in good faith; instead, it could incorporate provincial preferences through a federally-applied system. And it's not out of the question that the provincial governments who retain a strong interest in fighting climate change could decide the best path toward that end involves a national system - which as a bonus could result in public pressure being directed toward the federal level.

Of course, it would be preferable to see provinces take climate change seriously on their own, particularly given the seeming preference of a Lib majority government to treat the issue (like most) as one of symbolism rather than substance.

But the more conservative premiers refuse to exercise their power responsibly when it comes to the planetary threat of climate change, the more likely it is that the federal government will see a need to increase its own level of responsibility. And the end result could be a national system that's both more consistent, and even more likely to survive whatever evidence-free arguments might be made against it in court.

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