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Abstract

It is impossible to know in advance what legal form, if any, Canada’s emissions trading regime will ultimately take. However, the current Conservative government’s explicit policy of replicating the United States’ greenhouse gas reduction goals and legislation offers some clues. Based on the government’s legislation and rulemaking thus far, the emissions trading regime that emerges in the short term may be an informal collection of emissions trading provisions contained in industry-specific regulations passed under the Canadian Environmental Protection Act. Such a regime may not be the most effective in staving off climate change, but it will impose additional costs on certain activities and, consequently, increase the possibility of a legal challenge from one of the provinces or from an economic actor sanctioned for failing to comply with the regime. Considering the likelihood of such a constitutional challenge, this paper explores the potential constitutional bases for such a regime, focusing on the three heads of federal power: criminal law, trade and commerce, and the “national concern” branch of the “peace, order, and good governance” power. It concludes that only one of these heads of power, trade and commerce, will likely support the contemplated emissions trading regime.