Environmental policy is economic policy: Climate change policy and the general trade and commerce power

It is no longer tenable to view environmental policy as distinct from economic policy. I argue that the Laskin-Dickson era's expanded interpretation of the trade and commerce power, along with subsequent decisions in the two securities reference cases, opens the door to upholding regulatory charges on greenhouse gas (GHG) emissions in Canada under subsection 91(2) of the 'Constitution Act, 1867'. I make two central arguments regarding the application of this head of power to climate change policies. First, I use the tools of economics to show that once we think of emissions as costly consequences of the incomplete regulation of commerce, parallels to other federal regulation in relation to competition, trademarks, and securities become clear. Second, I show that while various policy tools are available to regulate GHG emissions, regulatory charges similar in design to the 'Greenhouse Gas Pollution Pricing Act' - the validity of which was recently affirmed by the Supreme Court of Canada - are a better fit under the trade and commerce power than cap-and-trade or other more command- and-control-oriented regulatory regimes. This conclusion is at odds with other scholarly work in the area. While scholars have previously emphasized the fact that emissions trading is an economic tool and considered whether this might be sufficient to uphold parts of a regulatory regime under the trade and commerce power, I conclude that the opposite is true. While the regulation of emissions in general can constitute a truly national policy lying beyond the reach of provincial legislation, the regulation of emissions trading is more narrow and unlikely to satisfy the test for classification under the general branch of the trade and commerce power because it constitutes the regulation of trade in a single commodity.