Alberta wants to challenge federal emissions cap in court

The Albertagovernment says it plans to legally challenge the federal government's cap on oil and gas emissions, arguing the cap would violate provincial jurisdiction.

Environment Minister Sonya Savage told CBC News that forthcoming policy would indirectly lead to a production cut, which would interfere with provincial control over the development of natural resources.

"We would most definitely be constitutionally challenging an emissions cap that's not achievable, and I think the federal government knows that," she said.

"The only way you can achieve the emissions reduction is to reduce production. Then that's a fundamental violation of provincial jurisdiction."

The prime minister announced the plan for an emissions cap a year ago, but the specifics aren't expected until the end of 2023.

Ottawa released a discussion paper this summer posing two options: a cap-and-trade system, which would divide emissions into allowances that are then allocated to specific companies through an auction, or an industry-specific carbon price that could be controlled independent of the regular national program.

The oil and gas sector has been tasked with reducing its emissions to 42 per cent below 2019 levels as part of the federal government's 2030 climate targets. Canada has committed to reaching net-zero emissions by the year 2050 a benchmark that almost all major oilsands producers also share, though the Pathways Alliance that represents them has said the targets for the end of the decade aren't realistic.

A Sovereignty Act application

Savage said it would be a constitutional legal challenge, like those seen from Alberta on the federal consumer carbon tax and Bill C-69, the environmental impact assessment legislation.

But it could also be matched with some kind of measure under the impending Sovereignty Act, which Premier Danielle Smith says would enable Alberta to ignore federal legislation or court rulings it deems against provincial interests.

"You can do that with or without the Sovereignty Act, but I think there would be some extra pieces in the Sovereignty Act that could be added upon that," Savage said.

The wording of the Sovereignty Act has not been released yet.

Canada recently refused to support a call for the phaseout of oil and gas production at the COP27 climate change summit. Domestically, federal ministers have also said Ottawa isn't aiming to reduce or shut down production.

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In 2019, Canada's oil and gas sector accounted for 191 megatonnes of greenhouse gas emissions 26 per cent of the country's total emissions. The industry has received criticism for not reinvesting more of its record profits into clean energy projects.

Oil and gas accounts for an average of five per cent of Canada's total GDP, and 21 per cent of Alberta's, according to Statistics Canada.

CBC News has reached out to the federal environment minister, Steven Guilbeault, for comment.

No veto, no monopoly

The most recent iteration of the battle over who controls climate change, environmental measures and natural resource development has been raging between Alberta and feds for several years.

"In some ways, I think both are wrong," said Andrew Leach, a professor of economics and law at the University of Alberta.

"[Ottawa doesn't] have exclusive jurisdiction over climate change. And there's no immunity for provincial natural resources from federal laws."

Despite the subjective interpretations of jurisdiction, Leach added Alberta isn't completely offside.

"This government's been criticized a lot for their constitutional challenges, but as far as I'm concerned, there hasn't been one that I would not say was a legitimate challenge for a province to make."

Savage has also been asked to develop a made-in-Alberta climate strategy. She says that work is her top priority and it starts with more consultations. She also says carbon capture and storage initiatives and the existing provincial industrial carbon tax will be jumping off points.

"It'll be where we're highlighting all of the progress made to date and highlighting progress yet to be made, and commitments from industry, commitments and targets in places where we think they can be achieved. There's a lot of work left to do in it."