CANADA, CLIMITE CHANGE, AND CONSTITUTIONALITY
This one is a bit of fun, and as soon as V.T. sent it to me and I saw it, I knew you'd want to read about it too.
Canada, it seems, has a problem with climate change, or to be more precise, the government (if one wants to call it that) of Prime Irritation Justin Turdeau has a problem with its latest climate change law, namely, that it's unconstitutional:
In effect, the Canadian high court ruled that the federal government in Ottawa overstepped its boundaries by trying to turn a matter of provincial jurisdiction into a federal one:
The Supreme Court decided that the federal government had made ‘the scope of the IAA too broad’ by including or ‘designating’ projects that should fall under provincial jurisdiction.“‘Parliament has plainly overstepped its constitutional competence in enacting this designated projects scheme’, Chief Justice Richard Wagner wrote in the 5-2 majority ruling.”
Natural resource projects in Canada fall under provincial jurisdiction, while the transport and communications projects that cross provincial boundaries – such as railways or pipelines – are federal.
Chief Justice of the Supreme Court of Canada, Richard Wagner...
(No, not the composer of turgid but nevertheless occasionally thrilling German operas)
...wrote that environmental protection ‘remains one of today’s most pressing challenges’, and that Parliament has indeed the power to ‘enact a scheme of environmental assessment’ to meet this challenge.
Now all this may seem rather academic and, perhaps, even quaint.
Until one considers some much wider implications and ramifications, that is.
Canada's system of laws is similar to America's in two very general ways: (1) both are developments of Anglo-Saxon jurisprudence and common law, and (2) both developments occur within federal systems where states or provinces retain a jurisdiction and power of their own apart from that central federal government. In the American system, moreover, the central or general (federal) government's powers are delegated powers of the states which formed it, post-Civil War Lincoln-esque mysticisms about the inviolability of the Union notwithstanding. After all, no union should ever be a "once in never out" suicide pact that require states or provinces to acquiesce to central authority one-size one opinion fits all insanity. I strongly suspect, therefore, that Canada's high court's decision will be but the beginning of something that needs to happen within the wider world of "Anglo-sphere" jurisprudence, namely, the rejection of central authority opinions legislated into one-size fits all dogmas. Recently in the United States the high court struck down the infamous Roe vs. Wade abortion law, which made a one-size fits all opinion the policy of the nation. The overturning of the decision did not suddenly make the practice illegal, it merely returned it to the individual states to decide if they were going to allow it, and under what circumstances.
But imagine such a process now vis-a-vis the rather different issues of climate science (or the lack thereof). Recently central governments throughout the West have through their regulatory authority attempted to enact environmental policy (without much debate) based on the idea that climate change (whatever that is) is "real" and that we must take measures to "combat" it, from abandoning petroleum-fueled vehicles, to going "all electric" (which many argue, in my opinion rightly, is even more energy-consuming and hence even more "destructive" to the environment), to trying to regulate animal methane "emissions" and a host of other nonsense. This is all predicated on an assumption that these things are indeed affecting the environment adversely. Or to put it country simple, a scientific opinion has been transubstantiated into regulatory dogma by the pronunciation of a few mystical formulae. Canada at least clarified the central problem by attempting to do a further transubstantiation from regulatory policy into a law, and ran afoul of jurisdiction and constitutionality.
So here comes the high octane speculation: imagine transforming the whole debate, within American jurisprudence, where the constitutional implications are even more clearly spelled out, by taking the issue out of regulatory policy and the interstate commerce clause, and transforming it into what it really is, a right of free speech: does the "best science" ever rise to the level of being able to close down not only contrary opinion but policy based upon that contrary opinion? Does science ever rise to the status of an infallble ex cathedra pronouncement that must be believed on pain of cancellation and ex consensu populorum? Put that way, I suspect there may be relevant precedents, but none going directly to the issue when phrased that way...
... and thus I suspect that Canada's high court and Chief Justice Richard Wagner just opened up a whole can of legal worms. Time will tell of course, but I for one wouldn't be surprised if, someday, it may happen.
... that's all... have a nice day. I'm going to go listen to the overture of Die Meistersinger...
...See you on the flip side...
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