By: David V. Wright

Case Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Not Plenary, but Not Nothing Either: Greenhouse Gas Emissions in the Supreme Court Opinion on the (un)Constitutionality of the Federal Impact Assessment Regime

The Supreme Court of Canada (SCC) recently released its opinion on the constitutionality of the federal impact assessment (IA) regime. In a 5:2 majority opinion, Chief Justice Richard Wagner concluded that much of the scheme is unconstitutional for projects falling primarily within provincial jurisdiction. ABlawg has published initial reflections (see here and here), as well as a primer.

One aspect of the majority opinion and any forthcoming legislative amendments that is in need of further attention is the Court’s analysis of greenhouse gas emissions. This post focuses on that aspect. In short, the majority reiterated that there is no plenary federal power to regulate greenhouse gas emissions, and found that Canada had not adequately made the legal argument to support inclusion of a designated project’s greenhouse gas emissions as a basis for triggering the Impact Assessment Act, SC 2019, c 28, s 1 (IAA) or for making final decisions. However, the majority left the door open on this aspect, while also clarifying that there are no constitutional constraints during the assessment phase (i.e. information gathering phase) of the federal process. At the present juncture, the SCC opinion provides some valuable additional clarity regarding greenhouse gas emissions, but very far from total clarity. Uncertainty remains, and that is unfortunate. In the following discussion, I lay out what the majority said and did not say on greenhouse gas emissions, what that means, and what’s next. Continue reading →

By: Martin Olszynski, Nigel Bankes, and David Wright

Case Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Wait, What!? What the Supreme Court Actually Said in the IAA Reference

This past Friday, October 13, the Supreme Court of Canada released its opinion in Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference). Writing for a 5:2 majority (Justices Mahmud Jamal and Andromache Karakatsanis dissenting), Chief Justice Richard Wagner held that what is known as the “designated project” (or “major project” in colloquial terms) review scheme of the Impact Assessment Act, SC 2019, c 28, s 1 (“IAA”) is unconstitutional. This post sets out what is, and is not, constitutional about the IAA regime. We begin by first clarifying the Act’s current legal status. We then set out the principles – post-IAA Reference – of federal and provincial jurisdiction over the environment generally, and then with respect to impact assessment specifically. This is followed by a discussion of the IAA’s specific constitutional defects as found by the majority, the implications of those defects, and their potential remedies. We conclude with some observations regarding the IAA Reference’s relevance to future constitutional battles over federal clean electricity regulations and an oil and gas greenhouse gas emissions cap. Continue reading →