Brian Zinchuk is editor and owner of Pipeline Online
From left: Jim Reiter, Bronwyn Eyre, Michael Milani. Photo by Brian Zinchuk
Ministers invoke the Saskatchewan First Act, taking first step in battle with Ottawa
Saying “to hell with it” is “definitely on the table”
SASKATOON – In December, the federal government announced measures to cap greenhouse gas emissions and dramatically reduce methane emissions from the oil and gas industry. Minister of Environment and Climate Change Steven Guilbeault made the announcements not on Canadian soil, but at COP28 in Dubai, with little notice to the provinces most affected, like Saskatchewan.
On Monday, April 8, the Saskatchewan government announced how it is fighting back – with the Saskatchewan First Act. And it’s the second time the province is doing so, with the Clean Electricity Regulations currently under review by the same process.
At stake is the Saskatchewan government’s stated goal of increasing oil production by a third, to 600,000 barrels per day from 464,000 barrels per day currently, or reducing production by 100,000 to 150,000 barrels per day, according to the Ministry of Energy and Resources’ preliminary estimates. And along the way, the financial impact to Saskatchewan’s energy sector could be as high as $9 billion by 2030. That energy sector happens to be the largest contributor to the provincial gross domestic product (GDP), even exceeding agriculture.
And the ministry estimates that in 2030, the financial impact to the province’s General Revenue Fund could be as much as $150 million to $250 million on an annual basis that year.
Minister of Justice and Attorney General Bronwyn Eyre and Minister of Energy Jim Reiter made the announcement from the Saskatoon cabinet office. They were flanked by Michael Milani, chair of the Economic Impact Assessment Tribunal.
Minister of Justice and Attorney General Bronwyn Eyre on April 8. Photo by Brian Zinchuk
Eyre, whose previous portfolio was Energy and Resources, been leading the charge on this front. She said:
In December, last year, at COP 28 in Dubai, the Federal Minister of Environment and Climate Change Canada, Steven Guilbeault, announced two interwoven initiatives that we believe will have significant, harmful economic impact on the energy sector in this province. The federal oil and gas cap, which will enforce a national cap and trade emission system, and announced at the same time, new federal methane regulations known as Methane 75, which will mandate the reduction of methane emissions by 75 per cent by 2030, along with federal fines and penalties.
Together these measures do constitute a production cap. They duplicate other punitive federal measures. They were imposed with no consultation, unless we count a ‘just to let you know’ five minute phone call. And its another example of gross federal overreach into provincial jurisdiction.
Constitutionally, it’s our position that the federal government can impose neither of these measures on Saskatchewan. Under Section 92 A of the Constitution Act, provinces have exclusive jurisdiction over natural resources and power generation. In the carbon tax reference case, the Supreme Court did not give the federal government free rein to legislate on all environmental matters. The Supreme Court did not give the federal government free rein to regulate specific provincial industries. The federal government cannot do that. And they know it.
It’s also important to keep in mind that the carbon tax case was extremely narrow on the very specific issue of minimum national standards of price stringency for emissions. And the Supreme Court emphasized that the peace order and good government power, which the federal government relied on, is an exceptional one, that should only be resorted to in extraordinary cases, not every set of regulations that come along.
And remember, the Supreme Court was also completely split.
Since then, we have seen growing momentum in the courts against federal violation of provincial jurisdiction, most notably in the Bill C-69 case, where the Supreme Court agreed with the provinces position.
Since the carbon tax case, we have also seen the Atlantic carve out for home heating fuel, which flies in the face of any pretense at national standards, let alone equal application of the law.
Today, we’re announcing that we will be referring the federal oil and gas cap and Methane 75 to the independent economic impact assessment tribunal chaired by Mr. Milani, which was established under the Saskatchewan First Act.
We will, of course, await the Tribunal’s findings, first on the Clean Electricity Regulations, which we’ll get back next month in terms of the report on May 15, and also on this referral, which will come back to us in September. Remember, those findings can be used as evidence in court. And make no mistake, we are laying the groundwork. We are gathering all facts, all evidence and considering all options, both offensive, including simultaneous litigation against a number of federal measures at once, and defensive.
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On that defensive side, former Supreme Court Justice John Major has explored the scenario whereby a province could simply refuse to implement measures that are adverse to it. Rather than the provinces taking the federal government to court to challenge legislation, which the provinces consider unconstitutional, Justice Major has written quote, ‘The onus should be reversed, and the federal government should have to bring the matter before the court.
“’What is so terrible,’ he wrote, ‘about a province saying that if you want to impose that on us, you better be sure that you’re doing it constitutionally.’
Certainly, as the federal government attempts to pile on regulation after legislation after policy, the question always has to be top of mind: What is the economic analysis? What is the economic impact? The federal carbon tax, existing and proposed methane regulations, Clean Electricity Regulations, Clean Fuel Regulations, and the oil cap? They all target the same industries, in the same regions. They add uncertainty, and they add significant new costs on energy production and products.
And when combined, these stacked regulatory regimes present a financial burden that will dramatically impact the competitiveness of Saskatchewan and Canadian industries. The economic consequences of regulations such as these are profound. We’re talking about what could be equalization formula level impacts. Serious foregone revenue to the province. A dollar figure impact that we could eventually claim from the federal government.
Studying that level of economic impact, quantifying it, is where the tribunal comes in. And its task on these two referrals today will be complex. Here’s one note that I saw on the federal oil cap, as an example: quote, ‘No details have been shared, not clear what technologies will be applied. No way to examine assumptions. If assumptions are ambitious, meeting reductions not feasible.’
Sounds like federal regulations.
For the government and for the Ministry of Justice, there are also legal constitutional issues to consider. Bottom line: the federal government cannot assume control over something that is not within its authority. The adoption of a cap-and-trade system and the methane regulations go beyond the reach of the federal criminal law power. And it is a well-established principle that the criminal law power cannot be used as a guise to regulate matters that otherwise fall under provincial jurisdiction, or if the law is more regulatory than criminal.
Both of these, the cap and Methane 75 are regulatory.
In closing, I will just say as I was Minister of Energy and Resources when we attempted to collaborate with the federal government on methane, and achieved their sign off and approval of our provincial plan, emissions from Saskatchewan upstream oil and gas sector are already provincially fully regulated. Since 2019, the provincial energy sector has reduced greenhouse gas emissions from reported venting and flaring at oil facilities by 64 per cent below 2015 levels. This includes an overall 70 per cent reduction in methane emissions – 70 per cent reduction, that’s how much we’ve reduced methane emissions in Saskatchewan.
In 2020, Minister Guilbeault publicly congratulated the province on its provincial regulatory framework and reduction in methane emissions. We have a proud record in Saskatchewan of provincial environmental stewardship, which is a message that we have to get out as part of building our overall case and this referral today is a big part of that. I would like to thank the tribunal and Mr. Milani for your ongoing in depth and independent work.
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Minister of Energy and Resources Jim Reiter on April 8. Photo by Brian Zinchuk
Energy and Resources minister
Reiter said he wanted to speak of the “true impact of these policies.”
He said:
I’d like to start with the proposed federal oil and gas emissions cap. Regardless of how the federal government likes to frame it, the Government of Saskatchewan, as well as other provinces have taken a clear stance on this issue.
The federal emissions cap will restrict and shut in Canadian oil. It will significantly shut in Canadian oil and gas production.
This will affect our ability to provide affordable ethical and sustainable oil and gas to our trading partners. It will mean even greater reliance on imported energy products in Canada.
The oil and gas industry is one of Saskatchewan its largest economic sectors. The cap on production will have negative consequences for our provinces oil and gas industry and deal a significant blow to our economy.
This proposed policy is unnecessary, extremely costly, and creates enormous uncertainty for our industry.
I want to note that the Government of Saskatchewan agrees with reducing overall emissions. We already have full regulatory coverage of all the oil and gas emissions and support industry’s efforts in a number of ways. And those results are impressive. Our oil and gas sector has proven that it can reduce emissions if given the time and flexibility to develop an approach that works with the industry, not against them.
Unfortunately, the emissions cap is another top-down approach imposed by the federal government that does not take into consideration the economic realities of oil and gas production across the country.
Estimates put the cost of compliance here between $7 and $9 billion by 2030, not including the impacts on jobs, investment and GDP.
Saskatchewan has long been known for its business-friendly regulatory environment for the oil and gas sector. And our government has worked very hard to maintain stability, predictability, and transparency. We’ve already heard from industry that the proposed oil and gas emissions cap is creating uncertainty and risk including for large decarbonisation projects, the very initiatives that are required to reduce emissions.
Now Methane 75: the proposed Methane 75 will force a 75 per cent reduction in methane emissions in our upstream oil and gas sector. As Minister Eyre mentioned, to date industries exceeded expectations and have already reduced greenhouse gas emissions for reported venting and flaring at oil facilities by 64 per cent below 2015 levels. This includes a 70 per cent reduction in methane emissions.
But the federal government is once again imposing additional punitive requirements on the oil and gas sector with the release of these draft regulations and the timeline to get there is tight. Federal analysis estimates a $4.2 billion cost to Saskatchewan producers to comply with Methane 75. The Government of Saskatchewan has made it very clear in our communications to the federal government that these policies will reduce investment production, employment, and other economic benefits generated by the oil and gas sector.
We have asked the federal government to pause on advancing the Methane 75 regulations. We’ve asked the federal government to abandon his ill-conceived plan to push ahead with the emissions cap. Instead, we would look for the federal government to work collaboratively with provinces and industry to support emissions reductions efforts already underway.
Ultimately, Saskatchewan believes we can reduce emissions without inflicting significant economic harm. Once the true scale of the economic impacts of these policies are known, our government can make informed decisions about how to proceed and move forward, while protecting Saskatchewan economy, its businesses and its people.
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Economic Impact Assessment Tribunal Chair Michael Milani on April 8. Photo by Brian Zinchuk
Tribunal chair
Milani spoke about how the tribunal “responsible for providing independent reviews of federal legislation or policies to assess the impact these may have on Saskatchewan economy.” As chair, he oversees the initiatives the panel will follow and assigns members for each review. Those initiatives are referred to the tribunal by order-in-council. No decision has been made yet on who will sit on this particular tribunal. It’s not the tribunal’s role to speak about constitutionality. Milani said, “Our role is more narrow and more focused to determine harm, if any, and try to quantify that for the use of the government and, frankly, for the people of Saskatchewan, so they have an independent assessment of what the costs may be. And so, our report will potentially outline negative impacts. It may also make recommendations as to how to mitigate those impacts. And then to be clear, it will be up to the provincial government to decide what to do with the information contained in the report.”
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Saskatchewan’s largest industry
In a Feb. 14 letter to Minister Guilbeault, Reiter had pointed out that the oil and gas sector is the largest industry in the province, as measured by GDP. In that letter, Reiter wrote, “Saskatchewan’s oil and gas industry is the province’s largest industry and a major contributor to the provincial economy and to the quality of life enjoyed by the citizens of this province. Each year, Saskatchewan’s oil and gas sector invests significant capital to maintain and grow production and to reduce emissions. In 2022 capital investment totaled $2.8B. This investment supports roughly 30,000 direct and indirect jobs connected to Saskatchewan’s upstream oil and gas industry.”
The Ministry of Energy and Resources responded to follow-up questions by saying, “In November 2023, Statistics Canada changed to reporting GDP in chained (2017) dollars. Using the chained (2017) dollars data, the oil/gas/mining industry accounted for 16.5 per cent of Saskatchewan’s total GDP in 2021, which is very similar to the 16.1 per cent in 2022. Removing the mining sector, the GDP for Oil and Gas Extraction and related Support Activities calculates to 9.3 per cent in 2022, while the GDP for Crop and Animal Production and related Support Activities is 8.8 per cent.”
Asked about this on April 8, Reiter said, “The concern is obviously that this would, at same time in our growth plan that we’re trying to increase barrels per day so that people in Canada and around the world have access to clean ethical oil and gas from Saskatchewan, it would actually this would cause the reverse to happen and then companies would be forced to scale back.”
Reiter said implementing the federal measures could result in a reduction of oil production by 100,000 barrels per day.
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Current tribunal on Clean Electricity Regulations
Nothing has come out of the first tribunal on the Clean Electricity Regulations yet, with its reporting date expected in May. Pipeline Online asked what the province would do if the tribunal finds substantial hurt to provincial economy, for the CER, emissions cap and Methane 75?
Eyre said the most important thing was to establish the groundwork and facts, gathering the evidence of such impacts on the economy.
“I think there are a number of options, and one is to use that evidence and to build the case and use those facts to undertake legal action against the federal government.”
She noted how a number of cases a number of policies, regulations and legislation are now are cumulatively harmful, including the Clean Electricity Regulations, emissions cap, Methane 75, carbon tax and Clean Fuel Regulations. “So what is the cumulative impact on those? And what do we do as a province. in terms of fighting our case, and building our case? We’re at the building our case stage now, and we feel it’s very important to have that that evidence. And then the question becomes, is it an offensive stance – simultaneous litigation on a number of these fronts in the name of overall economic impact, or is it a defensive stance? And what does that mean?
“And really fundamentally what this is about?
“What’s so important about this exercise is getting the evidence continuing to put the federal government on notice that is what we are doing, and that we feel that these measures are unconstitutional, also very economically harmful,” Eyre said.
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Can we say ‘To hell with it?’
Asked if the Saskatchewan government can simply say to the federal government, “To hell with it, we’re not going to follow your rules,” Eyre responded. “That is definitely on the table.”
She stressed that Saskatchewan has already made significant reductions, and that’s not been acknowledged by the federal government, even though, conversely Guilbeault had tweeted a few years ago congratulations to Saskatchewan on its methane reductions.
Milani would not say at this time who the current panel, working on the Clean Electricity Regulations, has talked to or what they have specifically done to this point. He said, “the report itself will be a detailed list of most questions who responded to the information being assembled.”
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NDP response
Eyre made a ministerial statement in the Legislature later in the day echoing her statements at the beginning of this story. She provided a copy of it to the official opposition New Democratic Party in advance, so they would have an opportunity to respond. This is what Nicole Sarauer, MLA for Regina Douglas Park said in response:
I appreciate the opportunity to enter in on this ministerial statement, and I’d like to thank the minister for providing a copy of her statement in advance.
Now ultimately what this ministerial statement boils down to is the government is gathering evidence for an inevitable court challenge. Of course there’s a lot of jurisdictional questions when it comes to actions of the federal government right now into provincially regulated territory, Mr. Speaker. But as I’ve said before, when it comes to the economic assessment tribunal, although there’s great people that are working on that tribunal, again this is simply an exercise in gathering evidence for a court application. An economic tribunal is not necessarily needed for that sort of action.
If this government’s going to take them to court, the federal government to court, they should do that. Take them to court. Nothing extravagant about it, not really a need in my opinion for a ministerial statement, Mr. Speaker. We’ll see how the legal arguments advance, as I’m sure there will be other provinces who are also interested in entering into this.
I had other comments about the minister’s statement, but I think I will leave it at that then.
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EPAC
In the government’s release, the Explorers and Producers Association of Canada President and CEO Tristan Goodman said, “The Explorers and Producers Association of Canada remains fundamentally opposed to the imposition of an emissions cap on Canadian oil and gas production.
“This is unnecessary and unacceptable given Canada’s oil and gas producers are already achieving significant emissions reductions as shown in the federal government’s own data. A federal emissions cap introduces further uncertainty, including likely constitutional challenges. To ensure Canadian producers can continue to responsibly produce the affordable and reliable energy that Canada and the world needs, while continuing to advance clean technology projects, our sector must compete for investment – this requires balance, pragmatism, and incentives instead of punitive measures that further damage Canada’s reputation as a place where projects are far too expensive, goalposts are uncertain, and environmental performance is not recognized.”
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