Guilbeault says government won't challenge 'symbolic' moves by Alberta on clean electricity rules

‘Premier Smith said herself yesterday that the sovereignty act is a largely symbolic gesture. You don’t take someone to court for something that’s symbolic’

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OTTAWA – Environment Minister Steven Guilbeault said his government has no plans to challenge Alberta’s use of the sovereignty act, arguing it has little impact on the Liberals’ proposed clean electricity regulations.

Premier Danielle Smith announced her plans Monday to use her province’s sovereignty act to ignore the Liberals’ proposed clean electricity regulations that aim to have a carbon-neutral grid nationally by 2035. Those regulations will require significant changes to the province’s power grid as Alberta currently relies heavily on natural gas generation.

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Smith said Monday following Ottawa’s rule would force the province to dramatically increase prices or live with a grid that is inherently unreliable.

“We are going to preserve the integrity of our power grid in whatever way we need to.”

The regulations have not been finalized, but Smith said they had no choice but to bring in the sovereignty act. If the motion passes in the Alberta legislature, provincial agencies will be prohibited from working with the federal government on the new rules. Alberta’s electricity is provided by private companies who would not be impacted by Smith’s move.

Smith also said her government will challenge the rules in court and establish a provincially owned power company if needed.

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Smith charged that recent court rulings on the impact assessment legislation and the ban on plastics are a clear indicator the Liberals are overstepping their constitutional authority, forcing her government to use the sovereignty act.

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“These measures are not something that we want to do. They’re our plan to counteract the absurd, illogical, unscientific and unconstitutional interference in Alberta’s electrical grid by a federal government that simply doesn’t care,” she said.

Guilbeault was asked Tuesday if he intends to challenge the Alberta government’s decision in court, but he rejected that idea.

“Premier Smith said herself yesterday that the sovereignty act is a largely symbolic gesture. You don’t take someone to court for something that’s symbolic,” he said.

Geoffrey Sigalet, director of the University of British Columbia’s Centre for Constitutional Law, said if the clean electricity regulations do end up in court the province will have a chance of winning.

“There’s certainly a case to be made that clean energy regulations would be unconstitutional,” he said.

The clean electricity rules rely on the federal government’s criminal law powers. That power in the constitution allows the government to prohibit something if it can demonstrate a public good and has been used widely to ban things like toxic chemicals or tobacco advertising.

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Sigalet said unlike some of the items the government has regulated using criminal law powers, electricity production is spelled out as something the provinces have direct jurisdiction over.

“The federal government will attempt to justify it under its criminal law power and that’s dicey to an extent especially on an on an area like electricity production.”

Earlier this year, the Supreme Court ruled that parts of the impact assessment act overstep federal powers and into provincial jurisdiction.

Smith has cited that ruling as a clear indication that Ottawa has overstepped its bounds with the electricity regulations as well. Sigalet said that case could help, but nothing is certain.

“It’s not a slam dunk precedent for saying that the Clean Energy regulations are unconstitutional, but it does help the province make its case,” he said. “It’s not an open and shut case that a court would necessarily agree with Danielle Smith “

Andrew Leach, a professor of law and economics at the University of Alberta, said he expects much like the carbon tax decision and the impact assessment decision from the Supreme Court there would be a split on the court.

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“I would be very surprised if this were a unanimous court either way.”

He said if a court sees this as entirely about managing an electricity system the province will likely win, but if it sees the regulations as prohibiting toxic emissions than the federal government would carry the day.

He said the federal government would have a strong case here and some precedent on their side.

“It’s certainly not evidently unconstitutional by any stretch of the imagination. I think if you asked the lion’s share of legal scholars, they’d say the balance of probabilities sways to the federal government here.”

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