Reducing emissions from oil and gas production has been notoriously difficult, in large part because the main oil and gas producing provinces, Alberta and Saskatchewan, have shown no interest in doing so and because the federal government does not have the Constitutional power to reduce oil & gas production.  Section 92A of the Constitution states:

Laws respecting non-renewable natural resources, forestry resources and electrical energy

 92A (1) In each province, the legislature may exclusively make laws in relation to 

(a) exploration for non-renewable natural resources in the province;

(b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and

(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy. [13] [Emphasis added.]

However, s. 91(27) of the Constitution gives the federal government exclusive jurisdiction over “The Criminal Law” [14]. This has been interpreted by judges to include authority to regulate pollution. 

ECCC, “plans to implement a national emissions cap-and-trade system through regulations to be made under the Canadian Environmental Protection Act, 1999” [15] “CEPA”).

While opponents, including Premier Danielle Smith of Alberta, have already stated their opinion that that the O&G Emissions Cap is unconstitutional and have promised to oppose it, [16] there is reason to have some confidence that the Supreme Court of Canada will ultimately determine that the use of CEPA in this manner is a valid exercise of the federal government’s criminal law powers, and that the regulations for the O&G emissions cap are, therefore, constitutional.  In 1997, the Supreme Court of Canada considered a similar use of CEPA and decided:

Under s. 91(27) of the Constitution Act, 1867, Parliament has been accorded plenary power to make criminal law in the widest sense. It is entirely within Parliament’s  discretion to determine what evil it wishes by penal prohibition to suppress and what threatened interest it thereby wishes to safeguard.  Under s. 91(27), it is also within the discretion of Parliament to determine the extent of blameworthiness that it wishes to attach to a criminal prohibition. [17]

In that Supreme Court case, the “evil” that the federal federal government wished by penal prohibition to suppress was the dumping of polychlorinated biphenyls (PCBs) into a river.  PCBs had been designated a “toxic substance” within CEPA.  With the Framework and the forthcoming regulations, the evil that the federal government wishes by penal prohibition to suppress is the emissions of GHGs from oil and gas production.  Carbon dioxide (CO2) is listed as a “toxic substance” within CEPA, as are other GHGs. [18]

This creates a tricky balance for ECCC and the federal government:  They can use their power over criminal law to regulate GHG emissions from oil and gas production, but the Courts  – ultimately, almost certainly the Supreme Court of Canada – could decide that their regulations are unconstitutional if the Supreme Court finds that the core purpose of them is to restrict the production of oil and gas, which is the “exclusive” jurisdiction of the provinces.