Alberta invokes Sovereignty Act over federal clean electricity regulations

Just moments ago Alberta tabled a bill to invoke the Alberta sovereignty act never before used it’s meant to help Alberta reject federal laws it sees as unconstitutional or harmful to the province in this case Alberta is pushing back against the federal government’s clean electricity regulations for more

On this the premier of Alberta Daniel Smith joins me now Premier Smith good to see you again hi David your Province the Alberta Ottawa working group has been working together on the draft electricity regulations so why did you choose to use the sovereignty act rather than continuing further in negotiations

With the federal government well we’ve been very clear from the beginning that we wanted to align our our various policies around our 2050 Target to be carbon neutral and they keep on resisting that on the clean electricity Rags we’re making great progress on other issues on small modular nuclear on

Discussion of hydrogen on carbon Capt utilization and storage but we had to draw a pretty firm line here we just know that the 2035 Target is not achievable our our own Electric System operator has said that they’re concerned about reliability and affordability and we know that we need to take actions to

Make sure that we get more Basel load power built and in our Province that’s natural gas power and that’s the the reason why we had to invoke this today you’re talking about creating a crown corporation that if necessary could build gas Bas flow power or buy gas

Companies who are unable to comply uh with the federal regulations and talking about giving a directive to government entities not to comply with enforce or follow the Federal Regulations uh by any means how is it legal for a provincial government to tell people to ignore a federal

Law well you know the way I put it is how was it legal for the federal government to act like the Supreme Court of Canada didn’t just admonish them twice to stop overreaching into our areas of jurisdiction in the in the first case with the impact Assessment

Act they told them very clearly that cooperative federalism means just that you got to cooperate you can’t take unilateral action and in the case of plastics they were told that they had overreached and it was also uncons constitutional and yet they keep on acting as if the Constitution doesn’t

Matter so our sovereignty act resolution today said the Constitution does matter provinces are given exclusive jurisdiction to develop their own electricity grids and we intend to make sure that we’re we’re doing so and that the federal government if they don’t like it they can take us to court but I

Do believe that we’re on pretty strong ground here but you do have the authority under the Constitution to build your own electricity system but the Supreme Court ruled in the greenhouse gas pollution pricing act that that that the federal government under the principle of peace order and good government can regulate emissions

So you can’t build an electrical system that emits to a point beyond the federal standard and and and threatens the rest of the country this is what the Supreme Court ruled I I appreciate the IAC the Plastics ban but those are separate issues from this particular one well I I

Disagree I mean if you look at that um at that legislation or that that ruling what they did say is it applied to the very narrow question of carbon pricing it was not cart blanch for the federal government to use a pretext to invade provincial jurisdiction and in fact I

Would say the subsequent decisions have made it super clear that the federal government can act to regulate Federal projects on federal lands and international but they cannot use their power to invade our jurisdiction and they continue to act as if that Supreme Court decision did not come down and

We’re letting them know that we read the Constitution we read the Court decisions and we’re prepared to do what it takes to make sure that we continue to bring new base load power on in our Province and in our province that means natural gas okay but if there’s a federal law on

The books Premier a and you are instructing uh people who work for your government not to comply with it and if they follow that you’re leading them into legal Jeopardy well I guess you know I’ll watch and see what happens in saskat because they’re a little bit further

Advanced uh they’re taking an an action on a different issue and indemnifying all the employees of their Crown corporations and that’s not unusual we actually have seen in in law before that you can indemnify civil servants when they take action of the direction of their their uh their the the the

Political Direction so I’m going to watch and see what they put in place and we if we need to we’ll we’ll put similar architecture in place as well to make sure that our employees are protected but but what it comes down to is the federal government needs to stop acting

In a lawless way respect the Constitution respect what the court has said come to the table and work with us on a 2050 Target because we are and I have said from the very beginning that we are committed to making major reductions in emissions but we have to

Do it at a pace that technology allows for that makes uh sure that we have affordability and reliability we’ve got to keep the lights on and that’s got to be the number one goal no I I appreciate that and I don’t think anybody wants an unstable Alberta electrical system but

You cite the Saskatchewan example and uh you know I’ve seen a lot of legal theory that uh the basic principle of paramountcy that a lower legislature like a provincial one cannot rewrite how federal law is interpreted means that what they’re doing there is not going to

Stand the test of time and it seems like you the potential exists and I am not lawyer but you know the the lawyers who weighed in on the Saskatchewan one suggested they could be led into legal Jeopardy because it doesn’t matter what you say provincially it matters how the

Law is interpreted federally so I I mean how risky is this going to be for the people you’re telling not to follow federal law with respect David we are not a lower level of government we are an equal level of government we each have Sovereign areas of jurisdiction

Defined by section 91 in the case of the federal powers and section 92 in the case of the provincial Powers I’m annoyed that the federal government keeps treating us like we are a lower level of government and that they can uh enact laws in our areas of jurisdiction

With impunity they cannot the Supreme Court has told them they cannot the federal court just told them that they couldnot and as a result this is the reason why we have decided to take the action that we’re going to make sure that we get our power produced in this

Province where we have our constitutional jurisdiction to do so look we have had instability in our grid already the grid almost failed seven times last winter and three times over the summer this is unusual and it it what it’s showing is our system is under stress we need to bring more base load

Power on and yet because of federal interference in this area I do not have people knocking down the door to create new natural gas plants because they’re fearful of what the federal rules are going to be and this is the reason why we have to create an environment to get

To get those investment dollars back so that we can make sure the the lights stay on in the winter and in the summer and to make sure that we we we are able to protect albertans that’s what’s got to be our number one goal okay fair

Enough on my use of the lower order uh that was probably a clumsy characterization but the point stands that the federal government can’t re rewrite provincial laws any more than a provincial legislature can rewrite federal laws and you talk about how you you need base load power why not look at

Other options Beyond gas for example Hydro I’ve seen a study done in 2010 this is on the government of Alberta’s website there’s 42,000 gwatt hours per year of undeveloped hydroelectric potential in in Alberta that’s enough for 5.8 million homes a year why is this all about natural gas when there are

Other options that exist within your jurisdiction well I look at what’s happened with site C and as you saw the site C project began as an idea in 1954 and it’s taken decades and decades and decades to get to a point where they had

Enough Buy in to be able to do it plus it’s expensive it’s an 11 Mega 1100 megawatt um facility that is costing 15 billion dollar we’re bringing on a 900 megawatt facility next year that cost $1.5 billion so the money makes more sense in this province to do natural gas

We will do a batement to the best available technology and we’ll work with the federal government on small modular nuclear we we’ve signed anou with other jurisdictions on this and we’ve also funded a study looking at how copas might end up implementing that but that is technology doesn’t exist yet and it

Is not deployed yet and we don’t have a regulatory environment for it yet uh hydrogen is another great potential opportunity but again these are all types of technology that are are still in their infancy I can’t I can’t guarantee that they’re going to be ready

By 2035 which is why we need the longer time Horizon and I I hope the federal government understands we’re serious about this we want to work with them on carbon neutrality but carbon neutrality by 2050 these regulations though are are still in their draft form they’re they’re not finalized yet and and you’re

Taking this step I mean has it been made emphatically clear and absolutely that there is no flexibility from the federal government I made it emphatically clear when they were first proposing it I said do a car out for Alberta Saskatchewan New Brunswick and Nova Scotia if they

Need it as well these four provinces that are in very different situation there are some provinces that are already almost at Net Zero on their power grid but give us a little bit more time I made that point over and over again and they continue to to press

Forward with unrealistic targets and so this is the reason why we’ve had to take these matters into our own hands it takes years for the uh for the commission of a new site going through the regulatory process we can’t afford to wait while the federal government

Stalls and make us go to court to try to win our constitutional Authority back we’re asserting our constitution Authority and we’re going to get started on making sure that base load power gets built when we uh spoke about this the first time and in a subsequent conversation I had with Rebecca Schultz

One of your cabinet ministers you raised the prospect of people going to jail if you’re not in compliance uh with these regulations in 2035 and the government has said that good faith non-compliance will not lead to incarceration there’s a quarter Century of Regulation under the Canadian environment protection act that

Demonstrates non-compliance is addressed with warnings compliance orders and gradually larger fines that’s why it needs to have a criminal code provision but what you’re talking about is not a good faith non-compliance you’re talking about a deliberate non-compliance by just telling people not to comply no not

No not true I mean when we are talking about bringing on natural gas we’re talking about bringing it on um abated to the best available technology the the problem is right now the technology only allows for us to Abate about 60% of emissions which is pretty good but it’s

Not anywhere near what the federal government is asking for and so that’s why we believe we have to take these actions and it’s it’s not good enough for them to use their criminal law power to invade our jurisdiction and then say oh yeah but we don’t really intend to

Use it that does that does not give Comfort to our private sector CEOs our private sector CEOs are very risk averse and their Boards of directors will simply not allow them to take a risk that one of them is not going to end up in jail in 2035 we need this this

Clarity and that’s what we’re providing we’re going to make sure that we have a market that investors can invest in and they know that um if there is any risk the risk will fall to the to the provis government and just as a final question Premier have you spoken to anyone in the

Federal government since you announced your intention to do this and and and what was that conversation like if it happened well I I did tell them from the very beginning that don’t go down this path because otherwise we we will have to assert our constitutional jurisdiction I did uh tell them at the

Very beginning uh before we even put our working table together that we wanted them to align around our 2050 Target when we launched our our our campaign across Ross the country to try to uh educate the rest of the country about the impact this would have on us we

Thought that that would move them instead they just continue to proceed as if they can Tinker around the edges and continue to act like these uh targets are achievable they’re simply not so now they know we’re serious that we are going to defend our jurisdiction we’re

Going to build the base load that we need because Alberton expect us to to keep the lights on and and that’s our job to do it Alberta Premier Daniel Smith thanks for your time again today thank you the minister of energy and natural resources Jonathan wison joins

Me now Minister thanks for joining us today not at all thanks for having me I wonder what’s your reaction uh to Daniel Smith and her government choosing to do this now what’s the significance of this move by Alberta well I think it’s unfortunate and I think it kind of represents the

Victory of partisan politics over good public policy um I will tell you that we established a Canada Alberta working group uh it is now met five times over the last few months four of those were on the clean electricity rag the the the working group actually was making very

Good progress I think it’s been a highly productive tool where I think Alberta’s come under to understand the regs a little bit better and we have come to understand some of Alberta’s concerns and Thoughts with respect to how to improve the regulations a bit better and and I think we’ve been making enormous

Progress so um you know the fact that she launched this today without telling us at all that this was something that was on her mind um at a time where I think we were actually headed towards finding a pathway to uh to doing this in a way that would work for Alberta and

For Canada um I think it represents a a victory of partisan politics over good public policy what would that pathway look like Minister because you know Daniel Smith and others in her government of Flatout said there’s just no path forward without a significant amount of natural gas as part of their

Base load power supply and the technology and the capacity just isn’t feasible for them to hit a 2035 Target so how do you see Alberta getting to the point that they’re in compliance with the regulations in 12 years well with due respect to Premier Smith and I know

Her and I and I have respect for her uh I mean what she she’s saying is not actually the case um you know all the G7 countries have a Net Zero by 2035 uh aspiration but all of us have regulations that actually provide for some flexibility with respect to uh to

Gas in particular to ensure that we don’t end up with significant stranded assets and so if you look at the draft regulation that was put out if you built a natural gas power plant in 2024 it can run unabated until 2044 there’s a 20-year period um and so there is certainly opportunity

And we have been discussing whether there was a bit more flexibility that may have been required with respect to that particular provision and other Provisions in the regulation the regulations also allow for gas with a batement um so you can put carbon capture on a gas plant so we recognize

That Alberta is going to need to continue to use gas for some period of time um and certainly have provided for that in the reg and what what Premier Smith is saying she knows is not actually really the case it it doesn’t mean that you all of a sudden shut off

All the the gas plants in 2035 that that wouldn’t work and and we are as cognizant of that as she is at the end of the day I think we all want to get to a grid that is reliable that is Affordable um but also ultimately that not admitting I mean Alberta and

Saskatchewan and Ontario and no SC are not going to be able to attract industry unless they’re able to offer people a clean grid well stepen Gilbo your colleague the environment Minister said not too long ago that you’re going to move ahead with this there’s no legal

Basis for what Alberta is doing and you feel you’re on very Solid Ground and that you’re not going to back off on the 2035 targets is that the the clear position of the Canadian government no matter what Premier Smith does in the legislature you’re pushing ahead towards

2035 well I would start by saying I mean we look for and I continue to look for pathways through which we can actually collaborate to get to an outcome we can all accept that was what the working group was about and I think that was actually the the the path in which the

The working group was headed but if you’re asking me about the Constitutional basis I mean at the end of the day the canadi the government’s power to do this under the Canadian Environmental Protection act I think is reasonably well settled law and from a constitutional perspective and and David

I will tell you I used to be a constitutional negotiator um there is no provision in the Constitution that allows the provincial government to essentially um Shield itself or or say that they will not enforce federal laws that just doesn’t exist nor can it exist in a country that actually Prides itself

On the rule of law just doesn’t make sense so when Daniel Smith says they’re going to order government entities not to comply not to cooperate not to follow Federal Regulations is she putting those people at legal Jeopardy if they follow her instructions not to cooperate with the federal government on something that

You believe is entirely in your jurisdiction well I would just tell you that Canadians uh Canadians you know when we talk about the Canadian Constitution we talk about peace order and good government Canadians by and large are people who actually uh have respect for the rule of law and expect

That their neighbors and and their Premier and their elected officials of all kinds are actually going to abide by the law I continue to uh to think that Canadians will operate in that basis and and to be honest with you rather than having this kind of an argument I’d

Actually rather be sitting at the table and trying to figure out solutions that will work for Alberta that will work for Canada that will work for saskat and that will work for Ontario that’s what can Canadians should be expecting of their politicians not playing these kinds of partisan games but can you even

Sit at that table now Minister if they say they’re going to instruct all their entities and agencies not to comply not to cooperate they’re passing this resolution and she’s flat out said that that it’s mission impossible to to meet what you’re laying out there well I will tell you that there is

Another meeting of the working group that’s scheduled in December to actually talk about a specific area of interest to uh to Alberta that where they have some concerns and we are actually asking for their input on on how to actually address those things Our intention is to continue to have those conversations in

Good faith and to try to find outcomes that are actually collaborative outcomes I think that’s what Canadians should be expecting of their politicians and I will continue to do that um even in in uh in circumstances like we find ourselves today which I think is a very

Unfortunate place but you know part of what Premier Smith says is that industry wants certainty they feel they can’t comply with these things and this creates an uncertain investment climate uh I’m sure the federal government would argue that her actions are in fact creating uncertainty by not complying

And they’re going to have difficulty in attracting investment Lisa R just proposed the idea of why not a reference case or an opinion at the federal court level on these clean energy regulations to deem their constitutionality and get some final Clarity on it and let industry make up their minds based on on

That is that an option you would consider or or where are you on that well let me first say that I have great respect for Lisa ra she’s a super uh Canadian and she does had did great work when she was in political life and

She does great work in in the work that she’s doing right now but what I would say um is that Federal government’s powers under the Canadian Environmental Protection act are a matter of settled law um I think we’re pretty comfortable that we actually do have the ability to

Move forward in this basis but we want to move forward collaboratively we want to move forward in a way that Alberta and other provinces actually see the benefit of doing that and I I will just say to you a clean grid is an economic enabler for all provinces they will not

Be able to actually attract the investment they want without clean grid but if Premier Smith wants to uh to challenge the the legal basis of of the regulation she’s she’s certainly open to do so but I would say that in my mind anyway this is an area where the law is

Is quite clear well she seems to be just as a final Point almost like daring you to take her to court that was certainly certainly the impression we’ve gotten from it do you think there’s any way uh this doesn’t end up in front of a judge

At some point well I think look people should St take a step back and and try to find a conversation where we can actually move forward together um when when Premier Smith says this is about um having zero emissions by 2035 and shutting down gas plan she knows that’s

Not true um if you read the regulation that’s not what it says um she says 2050 a lot of the flexibilities under this rig actually get you a reasonable portion of the way towards that um in many cases so at the end of the day

There’s a basis here to try to sit down and figure out how we do this as I say nobody has an interest in a grid that’s under nobody has a grid that’s unaffordable an interest in a grid that’s unaffordable and everybody has an interest in a grid that’s not admitting

So you know I would just say let’s stop with the partisanship we are all Canadians let’s sit down and figure out how to make this work minister of energy and natural resources Jonathan Wilkinson thanks so much for your time all right thank you thank you sir okay we’re gonna

Get back to this with the power panel they’ve been listening in Rob Russo vanon bride LaVine and super Canadian Lisa R uh uh well Lisa just quickly your quick response to that I mean if Daniel Smith wants a loud aggressive fight I don’t think she’s going to get it from

Jonathan Wilkinson I can’t speak for everybody uh in the government what did you make of the federal response there I think I think Mr Wilkinson put it out really well he said we want to negotiate and the Alberta Premier saying we want to litigate and that seems to be

Where we are and and there may be a case to be made that Alberta just fundamentally does not want to have Federal jurisdiction within electricity generation period and and they’re willing to go to the wall on that so they won’t accept any kind of regulation

In an area that they view as being very much in the provincial jurisdiction so um right now it looks like Alberta wants to litigate and the FEDS may want to negotiate and I don’t at the end of the day we all lose Brad I I didn’t get a

Sense from the minister there they were looking to escalate uh that’s for sure what’s your reaction to what we’ve heard uh from both the premier and the minister well certainly I think the minister was was was overly polite um uh and I I guess he has to he has to be

That but folks on the power panel don’t have to be uh the the I think for for Smith uh her sovereignty act the the the law that was passed in the Alberta legislature talks about how they can invoke it uh and deem whether or not the federal government is being

Unconstitutional or quote harmful to Alberta not only on laws that are passed the parliament but on even proposed or anticip ipated uh regulations or law or laws that are passed so you know in to to keep her sovereignty act whole she’s probably anticipating the notion that

That what the feds are doing is is some somewhat uh harmful to uh the certainty that the business or investor uh communities are looking for it’s absolutely the opposite everything that she’s doing is imposing a high level of risk for investors when it comes to the province of Alberta cuz we don’t know

Well I mean there’s she’s speculating that what they’re doing is legal which I I would I would be on the side of those uh and again I’m not a lawyer but uh I think the feds are right are are within their rights just because they were outside of their jurisdictions on

Plastic doesn’t mean that they’re not uh within their jurisdiction they were by the way on on carbon pricing Alberta took Ottawa to court over carbon pricing and Ottawa won and I think I I think a lot of a lot of people would think that Ottawa is going to be right with their

With their Environmental Protection act uh that Minister Wilkinson was talking about but the the level of uncertainty that Smith herself is claiming Ottawa is providing she herself is providing because if you were to invest in Alberta in in the electricity grid now or in natur you would have no idea whether or

Not what Alberta is doing is is right whether or not it’s going to be held up in courts for years upon years uh the whole thing is is is outrageous and uh I think Smith should give her head a shake well and Rob one of the provisions in

The resolution today is to explore the possibility of creating a crown corporation that if necessary could do natural gas developments or buy or nationalize or acquire in some way existing private sector natural gas projects so that you can’t force a private company to defy the federal law

You bring it in house and you do it through a crown Corporation I mean there’s quite a few things at play here yeah uh you used a couple of interesting words explore the possibility and if NE if necessary right um if I’m reminded of family gatherings when I’m not writing

For the leading English language magazines in the world d I I um I go to family gatherings and young cousins and my niece and nephew love the fact that I do the magic quarter trick where I take a quarter and put it in a hermetically sealed mayonnaise or under funkin wagnel porch

After after 24 hours and I turn it into a teleporting quarter I declare that it is but uh their parents ultimately decide whether or not that’s true when they get home at night and they’re talking about it there’s going to be a lot of talk a lot of possibles uh the

Courts will ultimately perhaps have to decide on that but in between between then I think we’re going to see a lot of talk a lot of negotiation uh and I’m not even sure this is going to get uh to court uh legislatures and parliaments make declarations courts decide this

Could be a good article for The Economist if you know anybody who writes that v i mean what did you make of the uh um there was a deescalation vibe there from from Jonathan Wilkinson though he did say what she’s claiming is not true he was pretty emphatic on where

He stood on the factual basis of the argument I mean Minister Wilkinson’s always calm like that’s just how his demeanor is and I think he also knows that fighting just plays into her hands um what you know Danielle Smith is doing is also political posturing to her base

You know to people saying I’m fighting for Alberta and sharing misinformation about jail time you know and I see the ads in Ontario I don’t think you know I you know she’s trying to play to people who are already tapped up and and angry at what’s happening right now so but I

Think if they were to fight her you know that’s exactly what she wants because I think ultimately she doesn’t want to do this I think she wants to play by her rules and she wants to do it her way and I think any conversation or collaboration on you know trying to get

To 2035 trying to get a little bit past that because I feel like there has been a lot of you know all the reading I’ve done on this is that they have been working with her and they have been trying to figure out how do we get there

But you know what also makes investors really nervous a moratorium on Clean Energy Products and I think exactly what Brad said is that you know what she is doing is making investors uh uneasy and that’s not good for Alberton overall just very quickly D I was talking to

Businessman who deals with the with the oil sands who who said There are two questions when people want to invest in the oil sands number one is where am I going to get my power and number two is that power clean power is it net zero

Power you got to be able to answer those questions if uh if you want to invest anywhere in Canada to get the capital really to get the financing because it’s part of the risk so so Lisa I know we are a collection of non- lawyers that

We’ve all said but you are the only former Federal cabinet minister uh in this conversation unless Rob has yet another job that I can get wrong um what is a legal situation here as you see it in terms of the Jeopardy for people who might be instructed to ignore the law by

Daniel Smith if it comes to this you know what is your take on the legal risk that’s being proposed here I think that’s so far down the road that uh I don’t see anybody being in a position where that actually comes to fruition I think this is a negotiation

SL litigation tactic that is putting really squarely in front of whether or not the federal government should be putting out electricity regulations like this in provincial jurisdiction I think the premier is trying to get this into a court that’s going to make a decision on whether or not that is uh something that

The feds can do and quite frankly I appreciate what Minister Wilkinson said especially the Great Canadian part but I don’t know how settled law it is whether or not this electricity stuff is something as a matter of national concern that was part of the decision in

The emissions act I think it’s a stretch I think it’s a real question for for people serious people like judges to think about and by the way I am a lawyer oh oh well yes I was referring to us that’s why I went to you all right uh

And by the way I have to correct you he said super Canadian so you know we may as well end this we okay go all right listen gang I I get my Cape thanks so much to the power panel Lisa ra briad LaVine Vonda and Rob Russo thanks so much gang

Alberta’s United Conservative Party government has invoked its controversial Sovereignty Act for the first time to push back against the federal government’s proposed clean electricity regulations. In an interview with Power & Politics, Alberta Premier Danielle Smith says the federal government cannot use their power to invade the province’s jurisdiction. Federal Energy Minister Jonathan Wilkinson reacts and the Power Panel weighs in.

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