Constitutional claims on environmental issues: a less hostile climate?

When political compromise is elusive, constitutional litigation thrives¹.

Few things divide Canadians today like environmental issues. The political divisions are stark, and fall across numerous active fault lines such as geography, age and political lean. Arguments are cast as both existential and zero sum. For some, ambitious environmental regulation is required to reduce the frequency of natural disasters and preserve the planet. Others consider climate change predictions exaggerated, and current trends in environmental regulation overreaching. With little consensus on the right approach, some Canadians are turning to the courts for direction. While no strategy succeeds all the time, the courts appear, at a minimum, willing to listen to and carefully assess concerns by litigants that governments have overreached—or underreached—in setting environmental policy.

While much of the political debate is happening at the federal level, the case law reflects disputes with all levels of government, from the local conservation authority to the federal cabinet. Although most disputes continue to be about the scope of federal or provincial powers under the Constitution Act, 1867, recent case law has shown that environmental claims under the Canadian Charter of Rights and Freedoms (the Charter) may also have potential. Three cases, released in the last 12 months, show some of the success private litigants have enjoyed against different governments.

One word: plastics! (Responsible Plastic Use Coalition v. Canada²)

Sometimes Parliament wields a legislative scalpel, surgically addressing a problem, but otherwise maintaining the status quo. The government’s recent use of the “toxic substances” regime of the Canadian Environmental Protection Act (CEPA), however, is more of a sledgehammer. CEPA provides that, once a substance is listed as “toxic” under its List of Toxic Substances, the government then has powers to restrict, prohibit, or regulate its import, manufacture, or sale. This scope of power is much more defensible when the regulated substance is narrowly defined.

In 1997, the Supreme Court narrowly upheld this regime as a valid exercise of the federal criminal law power in R. v. Hydro Québec³. But that determination turned on the premise that the government would assert its power to regulate substances that are genuinely harmful. The Court warned the federal government that it could not use the regime as a type of plenary power for industrial regulation.

The government recently tested the boundaries of Hydro Québec by adding Plastic Manufactured Items (PMIs) to the List. This means that the same regulatory regime that regulates PCBs now applies to your plastic knives and forks, the airline tray you use them on, or the plastic chairs your guests sit on at your summer barbeque—along with every single one of the numerous “plastic manufactured items” used in daily life.

The Responsible Plastic Use Coalition—an industry group representing plastics manufacturers—challenged the listing of PMIs as overbroad, and therefore outside the federal Parliament’s legislative authority under the criminal law power. In a decision released in November 2023, the Federal Court agreed, holding that (a) the criminal law power requires a reasonable apprehension of harm; and (b) there was no such apprehension for the entire range of items covered by PMIs. It therefore struck down the order, although its determination was stayed pending appeal, which remains on reserve as of the date of publication.

We would have gotten away with it too, if it weren’t for you meddling kids! (Mathur v. Ontario⁴)

While the PMIs case involved constitutional overreach, Mathur is a case where the applicants—seven young people concerned about climate change—alleged that the provincial government was failing to do enough to meet its constitutional obligations. They argued that Ontario’s targets for greenhouse gas emissions reduction are insufficient, and therefore create risks to their lives, security of the person and equality rights, contrary to sections 7 and 15 of the Charter.

The application judge concluded that climate change increased the risk of morbidity and mortality, and that young people are uniquely vulnerable to those risks. But she concluded that the argument was not that government was itself causing harm to the applicants’ lives, security of the person or equality, but rather that it was not doing enough to prevent these harms. This was a positive rights claim; those positive rights were held to be not protected by the Charter and therefore the claim failed.

To the surprise of many observers, the Court of Appeal reversed. The Court acknowledged that governments have no affirmative obligation under sections 7 or 15 of the Charter to take any specific steps to combat climate change, but reasoned that, once a scheme is put in place, it must be constitutionally compliant. The Court concluded that Ontario was required by legislation to set climate targets, and that the targets it had chosen were insufficient to meet global targets designed to prevent harms associated with climate change. This, it reasoned, created risks to life, security of the person, and equality, and was therefore at least potentially in breach of sections 7 and 15 of the Charter. While the Court of Appeal did not conclusively determine the claim, it sent it back to the trial court to redo the analysis on that basis.

We should note that there had been a Federal Court of Appeal case—La Rose v. Canada⁵—that struck analogous claims while allowing the claim under section 7 leave to amend. But the Ontario case is more impactful because it goes beyond merely the motion to strike and gets into the substance.

Supply chains, trains and automobiles (Halton v. Canadian National Railway⁶)

Halton v. Canadian National Railway deals with the extent of municipal and provincial authority over environmental issues in a federally regulated project. The case involves the building of an intermodal railway hub, where goods are loaded and unloaded on and off trucks for local delivery. Canadian National Railway—CN—spent years obtaining a number of federal environmental approvals to build the hub. The local municipalities unsuccessfully opposed the project through active participation in the federal processes. They also sought to rely on their own bylaws, the requirements of the local conservation authority and a lengthy list of provincial laws. Together, the municipalities and the conservation authority brought an application (later joined by the province) for a series of declarations that all those additional requirements applied to the hub, and for an injunction preventing the project from proceeding unless CN applied for and was able to secure several local approvals. This set up a classic constitutional battle: can a municipality use its authority to interfere with an otherwise fully approved federal project?

On the facts of that case, the answer, it turned out, was no. While the Supreme Court has limited the scope of interjurisdictional immunity in recent years, the Ontario Court of Appeal confirmed in Halton v. Canadian National Railway that the fundamentals of the doctrine remain in full force. A municipality cannot impair the core of a federal undertaking, and that core includes the location, construction and operation of a railway facility.

Two levels of court rejected the municipalities’ claim, permitting the project to proceed. The SCC denied Halton’s subsequent application for leave to appeal.

The thin red line (Reference re Impact Assessment Act⁷)

In October of 2023, the SCC surprised a number of observers—and the federal government—by striking down the controversial designated projects scheme under the updated federal Impact Assessment Act. In a 5-2 decision, the Court concluded that the scheme under the new assessment regime strayed too far from focusing on those aspects of projects that were purely federally regulated. It therefore intruded on exclusive provincial jurisdiction and could not survive constitutional review. The case was a surprise to some because the SCC had in several previous high-profile environmental cases—including the Hydro Québec case noted above, and (more recently) References re Greenhouse Gas Pollution Pricing Act⁸—upheld federal regimes that appeared on their face to push the boundaries of federal power. The Reference re Impact Assessment Act made it clear that the Court intends to ensure that both levels of government have a continuing role in environmental regulation, and that federal reach is not unlimited.

Conclusion: the constitutional environment

Constitutional challenges have been a feature of environmental regulation since its outset, but the pace has been picking up in recent years with the proliferation of increasingly ambitious federal and provincial policy initiatives. The examples above reflect a judiciary that is willing to flex its constitutional muscles to maintain a reasonable balance of power in the realm of environmental regulation, a trend we expect to see continue in coming years.