There has long been a distinct relation between Canada and the United States, one marked by broad agreement and, like all families, some discord.
In recent years, this has shifted. There is more discord, less agreement. Donald Trump may no longer be in the White House, but this shift will not reverse. While he didn’t get much done on the legislative front, he left a lasting mark on the judiciary, the biggest being his last-second nomination of Amy Coney Barrett to the U.S. Supreme Court to cement a 6-3 conservative majority. But he also installed more than 200 federal judges, including on the powerful Court of Appeals for the District of Columbia Circuit.
The new political complexion of top U.S. courts means Canada is going to have to get used to a southern neighbour that is more conservative and anti-big-government. It’s the opposite of the relative social and environmental alignment rooted in the 1950s and 60s, when Earl Warren was chief justice of the Supreme Court. Americans themselves these days are more liberal on many issues, but their institutions – especially the top court – are not. What seemed in sync between the two countries may not be again for a long time, since the many new young federal judges can serve for life.
The reality of this future hit hard over the past several weeks, in a trio of major conservative Supreme Court decisions.
The first favoured even looser gun laws. The second allowed states to impose draconian anti-abortion laws. The third came last Thursday, when the court restricted the ability of the federal Environmental Protection Agency to regulate greenhouse gases.
It could have been worse – the court could have ruled that the EPA had no right to regulate climate-heating emissions at all. But it still badly undermines the agency.
The case background dates to 2015. Barack Obama tried to use the long-standing and bipartisan Clean Air Act of 1970 – Richard Nixon was president, Congress was Democrat – to empower the EPA to broadly limit emissions from coal-fired power plants. Unlike Canada, where most power is clean, hydro and nuclear, the U.S. relies on fossil fuels. Mr. Obama’s plan never came into effect. Even so, Republican attorneys-general battled it in court. Last week, the Supreme Court upended decades of legal doctrine by ruling Congress, on major issues, has to legislate specific direction for the EPA.
What might look like a specific issue of domestic power generation in the U.S. is important globally. If the world is to truly fight climate heating, the U.S. has to be at the fore. Mr. Trump’s presidency, when he yanked the U.S. out of the Paris Agreement, made that clear.
For Canada, Mr. Trump’s time was problematic in many ways but it especially left the countries out of step on climate policy. Joe Biden’s climate promises had put the countries back on the same track but are now in legislative and judicial peril.
The EPA decision was focused on power generation, and was less sweeping than feared. But there are new worries about the Biden-led EPA’s work to limit vehicle tailpipe emissions and promote electric vehicles, thanks to a Republican legal case against that effort at the D.C. circuit court. Canada has always followed U.S. standards for vehicle emissions. When Mr. Trump rolled them back, Canada was left in the lurch and signed on to California-led rules, which could have fractured the North American car market. The harmony Mr. Biden brought back could be blown up, this time by the legacy Trump courts.
The same could happen to methane emissions in oil and gas, where the EPA is writing up tough new rules. Canada already has such rules. Slashing methane is essential to reduce total GHGs from the oil and gas industry. If there’s a court-dictated U.S. retreat, it could leave the same industry on two sides of the border operating under different rules. It’s not make-or-break for Canadian oil and gas, which is rolling in windfall profits, and whose long-term future depends on cleaning up its act, but it is not ideal.
The U.S. is not a monolith. Some cities and states are acting on climate. Power in New York State is getting cleaner with help from hydro in Quebec. But the rightward shift at the top court, harpooning federal action, is bad news. For Canada and the world, it could create complications and challenges. It’s a new reality that Ottawa, and all Canadians, will have to get used to.
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