[2016] 4 F.C.R. D-11
Environment
Appeal from Federal Court decision (2014 FC 776) dismissing appellant’s application seeking declarations of invalidity of regulations on constitutional, administrative law grounds — Appellant challenging constitutional validity of Renewable Fuels Regulations, SOR/2010-189 (RFRs), s. 5, which requiring that 2% of diesel fuel be renewable fuel, on grounds subsection not valid exercise of Parliament’s criminal law power under Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(27) because lacking criminal law purpose, intruding into provincial legislative responsibility for non-renewable natural resources — Also claiming provision ultra vires regulation-making power of Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, (CEPA) s. 140 because Governor in Council required to form opinion that regulation would reduce air pollution, opinion which Governor in Council could not reasonably have held — Federal Court finding that valid criminal law purpose existing in protection of environment from pollution; that evidence adduced by appellant suggesting that RFRs would not be effective in achieving environmental goals irrelevant to characterization of dominant purpose; that criminal law power not requiring total or direct prohibition of conduct in question — Whether Federal Court erring by considering RFRs, s. 5(2) in context of CEPA regime as whole before examining subsection in isolation; whether failing to consider relevant evidence beyond Regulatory Impact Analysis Statement (RIAS); whether failing to conclude that Governor in Council not holding requisite opinion under CEPA, s. 140(2) that RFRs would reduce air pollution — Regarding methodology, Supreme Court of Canada articulating framework for determining validity of law made pursuant to criminal law power — Federal Court doing precisely what Supreme Court of Canada mandating by looking at RFRs, s. 5(2), accepting that when read alone or without reference to enabling statute, it might be considered matter within provincial jurisdiction; then considering purpose, effect of s. 5(2), how fitting into regulatory scheme — Federal Court not erring in analytical framework — Division of powers analysis indicating that s. 5(2) directed to maintaining health, safety of Canadians as well as natural environment upon which life depending — Resort to RIAS confirming conclusion — Valid exercise of criminal law power requiring fulfillment of three-part test — Protection of environment unequivocally legitimate use of criminal law purpose since pollution constituting “evil” that Parliament allowed to legitimately seek to suppress — Regarding alleged ineffectiveness of RFRs, effectiveness of legislation irrelevant for purposes of characterization — In present case, no doubt what regulations seeking to achieve, how they operate, practical effect thereof — Argument that better, more efficacious way to reduce GHGs may exist not altering conclusion — Purpose of legislation cannot be challenged by proposing alternative, allegedly better method for achieving that purpose — Evidence demonstrating, inter alia, that market demand, market supply for renewable fuels in particular having to be created to achieve overall goal of greater GHG emissions reduction — Consequential shifts in agriculture, market for fuel arising from renewable fuel requirement not inconsistent with dominant purpose of s. 5(2) but reinforces it — Prohibition need not be total, can admit exceptions; argument that regulation invalid because not blanket prohibition having no doctrinal support — Appellant’s argument that RFRs intruding into provincial competence over non-renewable resources also rejected — RFRs laws of general application, not directed to management of natural resources — Creation of demand for renewable fuels necessary part of overall strategy to reduce GHG emissions but not dominant purpose — Evidence indicating that RFRs in pith, substance directed to reduction of air pollution by reducing GHG emissions from use of fossil fuels — Regarding requirement under CEPA, s. 140 that Governor in Council form opinion that regulation will reduce air pollution before making regulation, s. 140(2) not requiring absolute scientific certainty; only opinion that regulation could reduce air pollution — Ample evidence before Governor in Council set forth in RIAS supporting that opinion — Even if solid evidentiary foundation establishing different scientific opinion on net contribution of RFRs to reduction of GHGs, not detracting from Governor in Council forming different opinion on admittedly different evidence — Therefore, RFRs, s. 5(2) intra vires both Constitution Act, 1867, CEPA — Appeal dismissed.
Syncrude Canada Ltd. v. Canada (Attorney General) (A-383-14, 2016 FCA 160, Rennie J.A., judgment dated May 30, 2016, 39 pp.)