We can thank Donald Trump for this question, which should have been obvious. “Can a country invoke legislation designed for emergencies regarding climate change?” He raised the issue of emergencies in relation to his pet-project the “border wall.” But, as many pointed out, the real emergency is our global climate. This post will focus on Canada, but the ideas are likely roughly transferable to other nation-states (although there could be substantial differences in powers granted under emergency legislation and how that fits with constitutional structures).

Do we have legislation which can grant broad powers to the government to deal with emergencies? In Canada the answer is yes, yes we do. The Emergencies Act (R.S.C., 1985, c. 22 (4th Supp.)) was passed in 1988, replacing the War Measures Act.

The Emergencies Act is a federal piece of legislation designed to deal with national emergencies, or emergencies which the provinces are not able to deal with. There is wording in the Emergencies Act which makes it clear that it should not be used if less drastic means would work instead (s. 3).

There are other limits on the powers granted under the Act. One is that Parliament must review any declaration made under the Act by Cabinet, and the other is that the Charter of Rights and Freedoms still applies, and s. 1 (justification of infringement) is the only tool to violate Charter rights.

The key part for our purposes, the “Public Welfare Emergency” is found in s. 5. It is defined as:

public welfare emergency means an emergency that is caused by a real or imminent

(a) fire, flood, drought, storm, earthquake or other natural phenomenon,

(b) disease in human beings, animals or plants, or

(c) accident or pollution

and that results or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency. (bolding added).

Climate change seems to fit that description, at least generally. But, is it acute enough yet? And is it necessary?

On the one hand all we’ve had is some big fires, a bit of heat, and a minute rise in sea level. And we’ve also had some storms which seem bad, but were really only marginally worse than we’ve had in the past, and may pale in comparison to storms to come in the foreseeable future.

On the other hand, according to the World’s leading climate scientists we have eleven years to roll back our carbon footprint significantly. That’s not much time. Even more ominously, many scientists argue that once we hit a tipping point where warming initiates other changes which also accelerate warming, such as melting tundra releasing carbon, and the oceans ceasing to absorb carbon, there is no way to stop the terrifying negative impacts of climate change.

That’s pretty acute, despite life generally carrying on as it has. But maybe not acute enough, and this is simply something to consider for the future.

Is using the Emergencies Act necessary? In other words, how would it, or could it, help? There are two considerations here, one is what is needed to resolve the crisis, and the other is what powers are granted under the Emergencies Act?

As far as what is needed is concerned, the imagination is the limit, But we know some fundamentals – cut fossils fuel use, plant trees, build a renewable energy industry and increase research and development in this area.

What powers are granted for Public Welfare Emergency? They are listed in section 8.

8 (1) While a declaration of a public welfare emergency is in effect, the Governor in Council may make such orders or regulations with respect to the following matters as the Governor in Council believes, on reasonable grounds, are necessary for dealing with the emergency:

(a)the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals;

(b)the evacuation of persons and the removal of personal property from any specified area and the making of arrangements for the adequate care and protection of the persons and property;

(c)the requisition, use or disposition of property;

(d)the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered;

(e)the regulation of the distribution and availability of essential goods, services and resources;

(f)the authorization and making of emergency payments;

(g)the establishment of emergency shelters and hospitals;

(h)the assessment of damage to any works or undertakings and the repair, replacement or restoration thereof;

(i)the assessment of damage to the environment and the elimination or alleviation of the damage; and

(j)the imposition

(i)on summary conviction, of a fine not exceeding five hundred dollars or imprisonment not exceeding six months or both that fine and imprisonment, or

(ii)on indictment, of a fine not exceeding five thousand dollars or imprisonment not exceeding five years or both that fine and imprisonment,

for contravention of any order or regulation made under this section.

A particularly fitting section is 8(i). But others could possibly be used too.

Another interesting section is 8(c), which could possibly be used to seize oil and gas assets, pay for them, and start to shut them down, as well as fund massive renewable energy projects. It could possibly also be used to seize intellectual property related to renewables, with fair market compensation.

Could the Act be used to jump-start the building of a renewable energy industry? It could possibly work for that, but is not really suitable. There are probably more appropriate measures. But, it may depend on how much further down the wrong road we go.

Could sections 8(d, e and f) be used to fund a massive national tree-planting/employment project? Planting fast growing and food-producing trees in all available green space in Canada might become necessary if we get to 2025, are having major disasters, and it’s clear we are headed for a cliff.

It is most well-suited, however, to a genuine climate-caused emergency, such as a massive winter storm with extensive power outages, tsunamis, abrupt sea level rise, flooding and fire. In that case it would be used for the more standard response – shelter, medication, relief efforts, the supplying of food and water. But tree-planting or other actions could be part of that emergency declaration if climate change was clearly connected to it, in order to do everything necessary to prevent the next. Parliament would need to be on board, and any infringement of rights would have to be justifiable under the appropriate legal test (the Oakes test).

For now it’s food for thought. Hopefully we will not need to revisit this post any time soon.