WC130 MayJune2023 - Magazine - Page 25
Much of the difficulty stems from the
ability to easily discern environmental
”As new issues creep up, we have this constitutional toolbox for
consequences with the naked eye. It’s
federal-provincial jurisdiction. But the toolbox does not always
patently obvious when a marsh or bog
directly abuts or connects in navigable
contain the perfect tool, which creates some jurisdictional
fashion with a larger body of water such as
a river or lake. However, roads, dikes, and
uncertainty that our courts have needed to weigh in on.”
seasonal droughts can create visual barriers
Brett Carlson, Borden Ladner Gervais LLP
even when underground connections exist.
“Often, there’s a hydrological exchange in
the subsurface or during floods,” Kao says,
noting that the failure to protect a wetland
that may appear to be disconnected might in fact prove devastat- est court in the U.S. Although Americans on both sides of the
ing not only to that wetland but to its entire watershed.
divide are paying attention, the outcome might potentially have
some impact north of the border. While, Canadian jurisprudence
Disconnected protections
mainly turns to British and Commonwealth law when looking
Both the courts and successive presidential administrations
for precedent outside the country, so Canadian courts are unlikehave long tussled over responsibilities for wetlands protection.
ly to look to a U.S. Supreme Court ruling for guidance
In 2006, in a landmark Supreme Court case, Rapanos v. United
given constitutional differences between the two countries.
States, now-retired Justice Anthony Kennedy wrote that federal
Matti Lemmens and Brett Carlson, environmental litigators
Clean Water Act protections should apply if the wetlands in
with Borden Ladner Gervais LLP in Calgary, nevertheless point
question, alone or in combination with similarly situated lands,
out that court actions south of the border parallel judicial and
“significantly affect the chemical, physical, and biological integpolitical developments in Canada in some respects. Certainrity” of nearby federally regulated navigable waters. However,
ly, Canada is no stranger to comparable legal wrangling over
Kennedy stood alone in his reasoning. The remaining eight jusjurisdictional and constitutional rights. In 2021, for instance,
tices were evenly split, with four on the liberal side of the bench
the Supreme Court of Canada ruled the federal Carbon Pricing
satisfied with the status quo and four conservative jurors, led by
Act constitutional after Alberta, Saskatchewan, and Ontario
Justice Antonin Scalia, arguing that federal regulation should
argued that the federal government was intruding into provincial
apply only when a continuous surface connection exists between
jurisdiction over natural resources. Writing for the Court’s 6-3
a wetland and a larger, recognized water body.
majority, Chief Justice Richard Wagner said the federal governRapanos v. United States thus ended as a stalemate, and the
ment is free to impose minimum pricing standards because the
ambiguity in interpretation has lingered judicially and politically. threat of climate change represents a matter of pressing national
Under Barack Obama, the EPA adopted both Scalia’s “relatively
concern that crosses provincial and territorial boundaries.
permanent” and Kennedy’s “significant nexus” standards into its
rulemaking, only to have the scope narrowed to just the Scalia
Ripple effects
standard when Donald Trump became president. This past
Canada’s top court is also facing other environment-related
December, Joe Biden’s administration repealed the Trump-era
jurisdictional tests. Last year, the Alberta Court of Appeal ruled
changes, applying federal protections to wetlands, tributaries,
the federal Impact Assessment Act unconstitutional and an
and other waters deemed to meet either standard.
“existential threat” to the constitutionally guaranteed division
However, these latest amendments have fueled further discord. of powers. The Impact Assessment Act empowers the federal
The states of Kentucky and Texas, along with industry groups
government to review, approve and impose conditions on new
such as the American Farm Bureau Federation and the Ameriresource projects on the basis of a wide range of environmental
can Petroleum Institute, have filed lawsuits alleging the Biden
and social metrics. The Supreme Court heard an appeal of the
administration rule illegally expands federal authority to regulate
Alberta Court of Appeal’s decision on March 21 and 22 of this
beyond what Congress intended in the Clean Water Act. Texas
year. As well, the Supreme Court is slated to examine the Alberta
goes so far as describing the Biden-era interpretation of federal
Sovereignty Within a United Canada Act, which provides a
rule as inappropriately expansive, arguing that states have the
legal framework to push back on federal laws or policies deemed
right to choose whether or not to regulate waters within their
unconstitutional and is partly driven by a desire to control
own borders.
natural resources extraction at the provincial level.
With a ruling imminent, the Sackett case stands to set what
“My sense is that Alberta is trying to set its boundaries in
would become the most current legal benchmark from the highterms of what it has jurisdiction over, and the federal government
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