Environmental Federalism in Canada and the United States
Photo by Adam Patterson on Unsplash
Photo par Adam Patterson sur Unsplash
Tony Xun
(FR) Le fédéralisme est un système gouvernemental qui sépare le pouvoir souverain entre deux niveaux de gouvernement distincts. Cela veut dire qu’un gouvernement national exerce une autorité sur les affaires impliquant tous ses citoyens et le pays dans son ensemble, alors qu’un gouvernement infranational est aussi mis en place pour des raisons similaires, mais avec l'ajout de s’occuper des problèmes concernant des plus petites régions géographiques au sein de la nation. Sous réglementation fédérale, ni le gouvernement fédéral, ni les gouvernements infranationaux ne sont supérieurs ou subordonnés les uns les autres, et chacun possède ses propres domaines de compétence sur lesquels ils exercent un contrôle. Dans les systèmes fédéralistes canadiens et américains, le fédéralisme environnemental est un domaine durement contesté qui connaît des tensions entre le gouvernement national et infranational sur l'autorité juridictionnelle et l'élaboration des politiques, de sorte qu’il existe une relation de pouvoir complexe entre ces deux-ci.
Federalism is a system of government that divides sovereign power between two separate levels of government, where a national government exercises power over matters involving all citizens and the country as a whole, and subnational governments exercise power over matters involving citizens and issues of a smaller geographical region within the nation.[1] Under federalism, neither the federal government nor subnational governments are superior or subordinate to one another, and each has its own areas of jurisdiction where it exerts control.[2] In the Canadian and American federalist systems, environmental federalism is a contested area where there is tension between subnational and national governments over jurisdictional authority and policy-making, such that there exists a power relationship between them.
This essay examines the areas of emissions regulation and pipelines; although environmental policy regarding endangered species, air and water quality, nuclear power, and other areas are not inconsequential, they are arguably less directly relevant to the contributors of climate change than contemporary energy policy . This essay’s analysis of the power nominally allocated in these federal relationships and the power practically exerted by federal governments will show that federal control over environmental governance in Canada is characterized by dependence on cooperation with provincial authority, while the American federal government plays a largely dominant and coercive role in its relationship with state governments. Firstly, this essay explores the political authority afforded to Canadian and American governments in constitutional documents, examining the basis of environmental federalism in both countries. Then, it closely examines environmental policy in contemporary administrations, reviewing the Harper, Trudeau, Obama, and Trump administrations and the political contexts within which federal and subnational governments negotiated policy. Constitutionally derived authority legitimizes real-world federal power relationships in which the Canadian federal government is comparatively weaker than the American federal government.
Differences in federal-local power divisions in their respective founding documents are one of the reasons that the Canadian federal government has less power over environmental governance than the American federal government. Both Canada and the United States have federal systems written into their foundational documents: Canada’s British North America Act (BNA Act) of 1867 and the United States Constitution of 1789.[3] The BNA Act outlines specific areas of jurisdiction for federal and provincial governments, but does not explicitly address the environment, leaving questions of jurisdictional authority up to judicial interpretation.[4] However, the BNA Act grants provinces considerable powers adjacent to environmental concerns, including responsibility for “property and civil rights,” “management and sale of… public lands,” and ownership of lands, minerals and other natural resources, and royalties.[5] These powers have been interpreted to give provincial governments authority to regulate industries that are not explicitly under federal jurisdiction, such as forestry and hydroelectricity.[6] Provincial monopolization of these areas of jurisdiction means that provinces provide their own enforcement and monitoring of their regulations independent of Ottawa’s oversight.[7] The BNA Act gives the federal government far-reaching powers too: its requirement to uphold “Peace, Order, and Good Government” has been interpreted to justify some federal encroachment on provincial jurisdiction by the Supreme Court of Canada in Regina v. Crown Zellerbach, allowing Ottawa to address certain environmental issues, including concerns regarding Canadian waters.[8] However, some of Ottawa’s other constitutional powers, such as the power to disallow provincial legislation or seize an area as federal jurisdiction for “the general advantage of Canada” have fallen into disuse and would constitute a dramatic violation of current political norms if used.[9] The BNA Act endowed the federal government with a relatively limited amount of power over environmental governance compared to their provincial counterparts. As a result, the federal government’s jurisdiction is largely relegated to areas such as nuclear power and pipelines that cross subnational or international borders.[10]
Unlike the BNA Act, the American Constitution grants subnational governments some autonomy over affairs inside their own borders while according to the federal government general responsibility for affairs on a national level. Like the BNA Act, the Constitution does not explicitly deal with environmental policy - environmental problems were not prominent political topics during the founding of either country.[11] In the United States, however, ambiguity in the Constitution has generally been interpreted in favour of the federal government, granting Washington sweeping powers. The Interstate Commerce Clause in Section Eight of the Constitution has been used to give Washington jurisdiction over activities that might affect interstate commerce, such as regulation of navigable waterways and resources involved in commerce.[12] American states, on the other hand, derive the relevant constitutional authority from Section One of the Tenth Amendment, which proclaims that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively.”[13] Given that the Interstate Commerce Clause already grants the federal government jurisdiction over much of energy policy, the Tenth Amendment essentially only grants the state governments’ authority over resources not involved in interstate commerce.[14] Considering the interconnectedness of modern energy infrastructure, this is not an extensive amount of control compared to the autonomy that Canadian provinces enjoy. Additionally, Washington, unlike Ottawa, is not hesitant to seize areas of environmental policy from states. In 2007, the US Supreme Court ruled in Massachusetts v. EPA that the Environmental Protection Agency (EPA), the executive branch’s arm for environmental policy, had the right and responsibility to regulate greenhouse gas emissions as they could be “reasonably anticipated to endanger public health or welfare.”[15] The very structures of Canada’s and the United States’ governing documents establish a more commanding role for Washington than Ottawa, which is furthered by American judicial rulings tending to grant more power to the federal government than Canadian rulings.
The federal structure of constitutions, while important to the operation of Canadian and American institutions, does not provide a complete picture of their modern federal systems. While this essay is not a play-by-play of the environmental policies of subsequent Canadian and American administrations, a brief look at each country’s direction within the last decade, roughly divided in half by the administrations of four recent federal leaders excluding President Joe Biden, demonstrates how contemporary federal dynamics with situational policy govern environmental policy. As a model of classic federalism under Stephen Harper’s Conservative government, Canada displayed defined areas of jurisdiction, where federal and provincial policy remained independent from each other.[16] While this suited Harper’s indifference to climate activism, the 2015 election of Justin Trudeau’s Liberals initiated an attempt at expanded federal-provincial coordination, primarily through Trudeau’s Pan-Canadian Framework (PCF).[17] Ottawa’s subsequent negotiations with provincial leaders provide an insightful look into the extent to which Canadian federal policy is dependent on provincial cooperation. In the United States, President Barack Obama’s attempts to expand federal involvement in energy policy under his Clean Power Plan has been rolled back by President Donald Trump’s deregulation. Throughout both the Obama and Trump eras, the federal government, largely through the executive’s direction of the EPA, has remained the dominant driver of environmental policy.
In Canada, federal-provincial relations are dominated by provincial power. Thus, the effectiveness of federal policy is highly dependent on provincial cooperation. In this system, provincial governments have jealously guarded their autonomy, especially when their policies and goals differ from each other and from Ottawa.[18] An example among energy policies are greenhouse gas emissions reductions targets, which are achieved chiefly through carbon pricing mechanisms such as a carbon tax and cap-and-trade programs. Provincial governments can set their own emissions targets and carbon pricing mechanisms and have done so independently of the federal government and each other. During the Harper era, Ontario moved to phase out coal-fired electricity; Quebec partnered with Ontario and California in a joint cap-and-trade system; Nova Scotia legislated emissions reductions from electricity generation; and Alberta enacted emissions reductions programs, a reversal of traditional Albertan opposition to emissions reduction.[19]
Even in pipeline policy, which is dictated primarily by Ottawa, provincial governments have significant say.[20]After the 2017 election of a BC NDP government to replace the BC Liberal government which had made that deal, BC’s new premier, John Horgan, tried to stop the Trans Mountain pipeline through legislation to regulate the amount of heavy oil shipped through BC. Horgan’s move of authority to stop Trans Mountain was considered so serious that Trans Mountain halted work on the pipeline, later selling it to Ottawa in 2018, citing political risk posed by Horgan’s administration’s opposition[21][22] However, the autonomous power wielded by the BC provincial government through ideologically divergent administrations and their policy changes (the BC Liberal Party is centre-right, while the BC NDP is centre-left) demonstrates the appreciable power of provincial authority, despite opposition from both Edmonton and Ottawa.
Trudeau’s 2015 election and his attempts to create the PCF offer an excellent case study for federal-provincial power relations in energy policy. After the election, Trudeau met with premiers and provincial environment ministers in Vancouver to create an understanding for a PCF, called the “Vancouver Agreement”.[23] Reportedly, Ottawa was just happy that provincial governments had all even agreed to show up because provinces were used to Harper’s apathy about environmental policy and were nervous about federal attempts to invade provincial jurisdictions.[24] Trudeau’s creation of the PCF in 2016 was crafted with a healthy respect for provincial skepticism and was acutely aware and reflective of provincial powers. Trudeau’s goal of a carbon tax that would apply to all provinces without this tax met tentative agreement only because policy coordination was bought at the price of concessions to provincial governments. Trudeau overcame Alberta’s traditional opposition to emissions controls by promising construction of the Trans Mountain pipeline to the Pacific and avoided antagonizing the most powerful provinces by asking for little behavioural change: Alberta, BC, Ontario, and Quebec all already had carbon pricing schemes intact beforehand and were therefore not required to pay a federal carbon tax on top.[25] Even though the PCF represented an attempt to phase out coal fired plants, Nova Scotia obtained a concession to keep them operating past 2030.[26] In fact, the PCF contains no commitment by any province to change existing climate change plans or achieve different emissions reduction targets than it had before entering this intergovernmental process.[27] The PCF requirement for the provincial agreement and the provinces’ subsequent display of high-level autonomy to extract concessions from Ottawa demonstrate how little power Ottawa has to coerce provincial governments into signing an agreement against their wishes.
Unlike Ottawa’s relative powerlessness, the American federal system is characterized by Washington’s coercive control over state governments in the realm of environmental policy. Working through the EPA, the executive branch of the federal government has significant discretion to set goals without the consent of state governments, upon whom the EPA enforces its will. While states share responsibility with the federal government, real decision-making power lies in Washington. Obama’s presidency embodied an image of cooperative federalism; the federal government set national standards without giving state governments a say, such that states were enabled to pursue policy when they deemed federal targets insufficient but were not permitted to set lower ones.[28] Empowered by the previously mentioned Massachusetts v. EPA case, Obama’s Clean Power Plan (CPP) set emissions targets for each state. While enforcement of these targets was nominally left to state governments, monitoring was not.[29] States were required to submit State Implementation Plans to the EPA for approval, which described how they would attempt to reach the regulatory goals set out for them by the CPP.[30] Even this weak autonomy is limited - if the EPA found State Implementation Plans unsatisfactory, the EPA could then dictate its own Federal Implementation Plan to shore up inadequacies, which happened 19 times in Obama’s first term.[31] While the CPP has been a prominent example, most environmental statutes are structured this way, including the Clean Air Act, Clean Water Act, Safe Water Drinking Act, and Resource Conservation and Recovery Act.[32] Far from the negotiation and provincial autonomy typical in Canadian environmental governance, the American federal government maintained a dominant, directive role in its relationship with state governments.
While the Obama presidency’s environmental policies were characterized by centralization of decision-making,[33] Trump’s attempts to increase the amount of flexibility states have and roll back Obama-era regulations have demonstrated that real power in the federal-state relationship lies with the federal government.[34] The Trump administration’s primary mechanism for undoing Obama-era legislation has been the Congressional Review Act, where control was returned to states on a case-by-case basis for each individual piece of legislation.[35] Trump’s deregulation in other areas has often stemmed from federal authority, not a cessation of authority to state governments; his Affordable Clean Energy rule, a weakened replacement of Obama’s CPP, was passed as EPA policy in 2019.[36] Instead of giving states real authority over energy policy that they could wield against the federal government, the Trump administration merely rolled back federal policies. The 2021 ruling of federal courts that the Trump administration’s view of federal clean air law was unconstitutional, wiping out aspects of the Affordable Clean Energy rule, only serves as further evidence that federal legislation, not state autonomy, is the driving force in American environmental policy.[37]
The constitutional origins of federal and state powers, and specific policies of the Harper, Trudeau, Obama, and Trump administrations contributed to markedly different approaches to environmental federalism in the US and Canada. Under Trudeau, Canada’s federal government could not expand its powers at provincial expense without stringent resistance. In contrast, American environmental policy over the last decade has been primarily characterized by ideological differences between the Obama and Trump administrations rather than tension in federal-state relationships. Canada’s federal-provincial relationship is characterized by negotiation, cooperation, and significant provincial autonomy, where provincial governments can consistently challenge federal policies. In contrast, the American federal-state relationship is dominated by the federal government acting through the EPA, while the states implement federal targets and policies. State autonomy is relegated to having flexibility in how to carry out federal policy, instead of any real ability to challenge or negotiate with federal governments. It is fairly evident that the American federal government is far stronger in its federal-subnational relations than the Canadian federal government.