Legality of Ottawa’s new ‘net-zero’ electricity ultimatums unclear, say constitutional scholars

OTTAWA – As the premiers of Alberta and Saskatchewan prepare to fight Ottawa’s new draft regulations to force through a “net-zero” power grid, legal scholars say it’s iffy who might win a potential constitutional court battle.

“The question really doesn’t really turn on as much where provincial jurisdiction lies as how far you can stretch federal jurisdiction,” said Andrew Leach, a professor of law and economics at the University of Alberta.

On Thursday, after the draft rules were introduced, Saskatchewan Premier Scott Moe it wasn’t feasible for his province to meet the 2035 targets for net zero, a term which means emissions are technically eliminated, after accounting for offset credits.

“Trudeau’s net-zero electricity regulations are unaffordable, unrealistic and unconstitutional. They will drive electricity rates through the roof and leave Saskatchewan with an unreliable power supply,” Moe said.

Alberta Premier Danielle Smith said she is prepared to fight the new regulations in court and her environment minister Rebecca Schulz told a Calgary radio station the UCP government could invoke its sovereignty act, which is meant to shield the province from federal legislation it considers harmful.

University of Calgary law professor Martin Olszynski said the federal government’s regulations, which set up a specific prohibition on greenhouse gases from power production, appear to take advantage of Ottawa’s criminal enforcement powers. He said those powers go beyond what people typically associate with criminality and allow the government to prohibit certain things, such as tobacco advertising or toxic, when it can demonstrate a clear purpose for doing so.

He said there is a lot of precedent going back decades that allows the government to use these powers on a national scale to regulate the environment and he sees an uphill battle for any constitutional challenge.

“The reality I think is that horses left the barn a long time ago, 20 to 30 years ago,” he said. “On the basis of precedent, I think the feds have a pretty good argument.”

“I don’t think anyone can argue for it to be a slam-dunk unconstitutional law,” he said. “I think they’re puffing up a little bit there, frankly.”

Leach said federal governments have used the criminal power to push into areas of provincial constitutional jurisdiction in the past. The Supreme Court has been largely deferential to the Liberals when it comes to jurisdictional reach, such as when it upheld the carbon tax, which Ottawa argued for based on different federal powers.

But Leach said it’s possible the court could find the government has pushed too far this time.

“Probably with today’s Supreme Court, it ends up as valid federal legislation, but I don’t think it’s a slam dunk,” he said.

Leach said the federal government definitely has a role to play in environmental legislation, but courts have usually tried to limit its ability to micromanage the economy.

“What we tend to avoid having federal governments do or giving federal governments the power to do is to micromanage either individual facilities or individual industries,” he said.

Leach and Olszynski both say that probably wouldn’t be the central issue in a case over the electricity regulations.

Leach said the fact the carbon-tax case was not settled with a unanimous decision is proof that there is room for debate on what the government’s powers are when it comes to regulating the environment.

But he said it’s also possible the issue never ends up in a courtroom.

“There’s a lot of bluster right now about what’s going to happen and who’s going to challenge and how is it going to play out,” he said. “There are a lot of pathways both political and legally where this doesn’t end up being challenged.”