Canadian Cannabis Regulation

Photo: Douglas Sprott.

In early March I participated in a fascinating symposium hosted by the McGeorge School of Law entitled Regulating Marijuana at Home and Abroad.  Perhaps because the marijuana industry is evolving so rapidly, every participant (and many of the attendees) seemed to have some new insight that no one else had picked up on yet.  I was given the opportunity to speak about the differences between US and Canadian marijuana agriculture regulations, highlighting some recent trends among US states on the one hand, and the Canadian federal government on the other hand.  

Canada's marijuana industry is at an inflection point this year, as Parliament is expected to consider and pass legislation that would legalize recreational marijuana use on the national level. Existing national regulations have proceeded in piece-meal fashion with mixed results.  This could be due to the fact that Canada's Parliament was forced to pass medical marijuana legislation by a series of court decisions that found it to be an unconstitutional violation of individual liberty and public health to maintain a federal marijuana prohibition.  I wrote an article comparing Canadian and US approaches to marijuana agriculture regulation that is forthcoming in the McGeorge Law Review (access it here). The introduction to the article is below: 

Federal marijuana policy in the United States and Canada has, in recent decades, been fixated on prohibition. That may be about to change.  In 2017, Canada is expected to become the first ‘Group of Seven’ nation to propose legislation that would legalize and regulate marijuana for recreational use.  According to the Canadian government’s party platform, “marijuana prohibition does not work.”  In a change of direction from decades of prohibition, the government is now calling for Parliament to “legalize, regulate, and restrict access” to marijuana.  Importantly, policymakers and regulators are in the process of developing a federal framework for marijuana regulation that would address agricultural considerations, including environmental impacts and protections for small-scale farmers.

The mood of the United States federal government is a marked contrast.  Marijuana has been a federally criminalized substance since passage of the Controlled Substances Act in 1970.  Following the 2016 presidential elections, there is uncertainty regarding President Donald Trump’s stance toward marijuana legalization and regulation on the state level. However, early indications suggest his administration is not interested in a federal regulatory framework.  Although the Republican Party in control of the federal government is generally supportive of federalism principles and state autonomy, there is fear that the federal government will interfere with state marijuana legalization and regulation efforts.  Absent a regulatory framework that goes beyond prohibition, there is little hope for federal involvement in agricultural or environmental issues facing the marijuana industry.

In addition to this contrast on the federal level, the United States and Canada have divergent experiences when it comes to subnational marijuana legalization and regulation.  In the United States, marijuana legalization has gained momentum and become commonplace on the state level.  California became the first state to legalize medical marijuana use in 1996.  Colorado and Washington then became the first states to legalize recreational marijuana use in 2012.  At the time of writing, twenty-eight states had legalized medical marijuana, while eight states (plus the District of Columbia) had legalized recreational marijuana.  Only five states have maintained a strict prohibition policy on marijuana cultivation, distribution, sale, or consumption.  These states represent less than five percent of the U.S. population.  Despite the federal prohibition, there are now a multitude of state regulatory frameworks in place, with a variety of statutory goals and approaches to compare. 

Canada has not experienced the same subnationally-driven path toward legalization.  Instead, the erosion of prohibition has been driven largely by the courts.  Regina v. Parker, 49 O.R. (3rd) 481 [2000], set the stage for legalization by declaring the federal government’s marijuana prohibition unconstitutional absent an exemption for medical necessity.  As the Court stated, “the marijuana laws forced the accused to choose between commission of a crime to obtain effective medical treatment and inadequate treatment,” a deprivation of liberty, security, and fundamental justice.  Invalidating the marijuana prohibition forced the Canadian Parliament to develop at least a basic framework for medical marijuana use.  Although the development of subsequent regulatory frameworks has been inconsistent, Canada’s experience with marijuana regulation on the federal level can serve as a meaningful starting point with which to pursue recreational legalization and regulation. 

A more developed exploration of U.S. and Canadian experiences with marijuana legalization and regulation is provided in the next section. However, this essay’s primary focus is on the contrasting experiences of these two countries with respect to marijuana agriculture.  The agricultural component of the marijuana industry is, after all, where the chain of supply begins.  And yet, the need for thoughtful and realistic agricultural regulations often takes a back seat to more visible concerns, such as distribution, marketing, sale, and consumption.  The lack of attention paid to marijuana cultivation is a disservice to farmers, regulators, and consumers.  Farmers often confront ambiguous or unresponsive legal requirements, and are forced to choose between staying in the shadows of the illicit market or attempting to comply with a confusing web of unrealistic regulations.  Policymakers and administrative agencies face their own challenge, tasked with creating an ambitious regulatory framework from scratch.  These regulators often do not have a history with the marijuana industry, or analogous regulations to fall back on.  Consumers and the public at large, finally, benefit from having a diversity of market options, as well as marijuana that is sustainably cultivated. 

The early record of marijuana agriculture regulation in the U.S. and Canada is mixed.  Some U.S. states, such as California, acknowledge the agricultural component of the marijuana industry and are taking steps to develop a regulatory framework that supports farming communities and the environment.  Other states, such as New York and Florida, aim to control cultivation by severely limiting the number of producers.  In any case, most states have not developed a robust regulatory scheme for marijuana that comprehensively addresses agricultural issues.

Canada’s approach to marijuana agriculture regulation has been simultaneously restrictive and permissive under the current medically-focused framework.  On the one hand, Health Canada (authorized to regulate cultivation) has only issued thirty-seven cultivation licenses nation-wide, despite receiving 1,561 applications.  Eleven Canadian provinces have two cultivators or less.  In addition, marijuana can only be grown indoors, an energy-intensive agricultural method that artificially reproduces the light, soil, and water conditions found on outdoor farms.  On the other hand, licensed cultivators are allowed to develop, grow, and sell whatever strain(s) of marijuana they see fit, and are free to set their own prices. 

In anticipation of legislation that would legalize and regulate recreational marijuana in Canada, the federal government formed a task force to make recommendations on marijuana policy.  The task force report recommended significant changes to the current approach to agricultural regulation.  Notably, the report recommended that: 1) the federal government take the lead on regulating agriculture; 2) licensing schemes be adapted to promote a diversity of cultivators, including small-scale farmers; and 3) environmental protection be promoted through regulations that include licensing and supporting outdoor farmers.  If implemented, the recommendations would represent a markedly more diverse and inclusive approach to marijuana agriculture regulation.

This essay proceeds accordingly.  In Part II, a brief history of marijuana prohibition, legalization, and regulation in the U.S. and Canada is provided and contrasted.  Part III paints a picture of marijuana agriculture regulation in the U.S. by exploring approaches in three states (California, Colorado, and Washington) where regulatory frameworks for cultivation are relatively developed.  Part IV tells the Canadian story (where agricultural production is, for now, scarcely permitted), while looking ahead to impending regulations for recreational marijuana.  Part V concludes by drawing out common regulatory successes and failures, with an eye toward lessons learned that can inform the future development of marijuana agriculture regulations in the United States and Canada. 

Flint Water Crisis: The Aftermath

At the beginning of this year I started blogging about the Flint water crisis, which was spiraling out of control and making national headlines (see my posts here and here). The headlines have moved on, but problems with water infrastructure and services linger.  Cara Cunningham Warren (University of Detroit Mercy School of Law) just released a new paper looking at the broader ramifications of Flint and cooperative federalism of water management, and reports some startling statistics: 

In 2015, at least 3.9 million Americans were exposed to lead in their drinking water at legally unacceptable levels. An additional 18 million Americans are at risk because their water systems are not in compliance with federal rules designed to detect the presence and to ameliorate the impact of lead contamination. What’s more, in 82% of the cases where the violation related to a health standard, no formal state or federal enforcement action was taken.

 The University of Southern California’s Suzanne Dworak-Peck School of Social Work has been doing some great work raising awareness of water issues.  Their online program, Nursing@USC, has offered to post an excellent visual aid explaining the evolution of the Flint water crisis on this blog.  Their infographic, and introduction to it, are below:

One year after the official announcement of elevated lead toxicity in Flint’s water supply, the city’s water is still not safe to drink. While Congress has yet to pass a bill to allocate funds, criminal charges have been filed against state officials and thousands of children have tested positive for toxic levels of lead exposure.

The impact on residents’ wellbeing is devastating—according to the World Health Organization, “the neurological and behavioral effects of lead are believed to be irreversible.” Interim solutions included drinking bottled water, purchasing filters and testing water at home, all of which required families to designate income toward fixing a crisis they could not afford. Roughly 40 percent of the city’s residents live under the poverty level, making it one of the poorest cities in the United States, struggling to pay for a resource that is considered by the U.N. to be a human right.

The crisis has yet to be resolved, just as other incidents of water toxicity have appeared in the District of Columbia, Indiana and Ohio. Clearly Flint is not the only vulnerable city, but the course of action exhibited the dangerous combination of environmental racism and lack of government oversight. The illustration below depicts the series of events that took place, which resulted in a catastrophic event from which lawmakers could learn.

This visual timeline was created by Nursing@USC, the online family nurse practitioner program at the University of Southern California’s Suzanne Dworak-Peck School of Social Work. The program prepares family nurse practitioners to treat physical and behavioral health, address social and environmental factors, and lead positive social change.

Image produced by Nursing@USC

Solar Energy Politics: Texas and Florida are on Divergent Paths

Solar panels near San Antonio, Texas form one of the largest solar farms in the United States. Photo: BlueWing.

This November, Floridians will vote to approve an amendment to the constitution called the "Rights of Electricity Consumers Regarding Solar Energy Choice."  It was one of two solar-related ballot initiatives vying to make it onto the ballot.  The other initiative would have made it easier for third parties to finance solar panel installations, paving the way for Florida to tap into its considerable solar energy potential.  Unfortunately, the initiative didn't receive enough signatures.  The initiative that did make it onto the ballot makes it harder to finance solar installations, a fact that didn't get past Florida Supreme Court Justice Barbara Pariente.  She wrote:

"Masquerading as a pro-solar energy initiative, this proposed constitutional amendment, supported by some of Florida's major investor-owned electric utility companies, actually seeks to constitutionalize the status quo," Pariente wrote. "This ballot initiative is the proverbial 'wolf in sheep's clothing.'"

I wrote about these competing ballot initiatives in November 2015, noting that third-party financing receives political support from both liberal and conservative organizations:

"It is very frustrating to see how special interests affect politics," he said. "I'm a Republican solar contractor and I'm frustrated with my party in this state for taking donations that do not allow for competition and free market."

So it seems unlikely that Florida will tap into its solar potential (third in the country) anytime soon.  Contrast that with Texas, another state with enormous solar potential.  As John Hall points out, Texas is rapidly expanding its solar energy production:

• Texas solar is growing very quickly: The new Solar Market Insight report declares Texas to be the fastest growing utility-scale solar market in the country. In fact, by the end of 2016, SEIA predicts the state’s total installed solar capacity will more than double. And within the next five years, Texas’ solar market will be second only to California’s (although, considering California has one-fourth of the solar power potential of Texas, we could eclipse the Golden State in coming years).

• Solar will make up nearly all of Texas’ new power capacity: The Electric Reliability Council of Texas (ERCOT), the grid operator for nearly 90 percent of the state, evaluated the state’s 2031 electricity needs in eight potential scenarios based on trends and forecasts. For example, one scenario is the continuation of low natural gas prices and another reflects high economic growth. Solar was the common denominator in all eight of the scenarios: This clean energy resource represented nearly all of the new capacity in each one. In other words, the grid operator predicts that – in all foreseeable future circumstances — a lot more solar is coming online in the state. 

• Texans agree on solar: A recent poll from the Texas Clean Energy Coalition found an overwhelming majority — 85 percent — of the state’s voters want to increase the use of clean energy (including solar) to generate electricity. Even better, both sides of the aisle are on board: That group included 78 percent of Republican respondents.

More and more states (partisanship aside) are embracing solar energy and tapping into their potential.  At the moment, solar energy cannot be relied on to provide the entirety of a state's electricity needs, of course, but solar is a worthy component of any state's energy portfolio.  Texas appears to recognize that.  Florida - the Sunshine State - has work to do to catch up.  

Federalism and Reform of the Toxic Substances Control Act

Photo: Joey Gannon.

Last month, in a bit of symbolic bipartisanship, Congress passed the National Bison Legacy Act, making the bison America's national mammal.  Last week Congress passed a significantly more ambitious (if less charismatic) legislative initiative: major reform of the Toxic Substances Control Act of 1976.  The TSCA tasks the federal Environmental Protection Agency with regulating chemicals that pose unreasonable risks to human health or the environment.  It is an admirable statute, but the TSCA hasn't stood up to close scrutiny in recent years.  For one thing, it hasn't been meaningfully updated since 1976.  It requires little from manufacturers in terms of data disclosures or modern technology adoption, and the EPA's regulatory powers are relatively weak.

As a result, regulation of toxic substances has taken place predominantly at the state level, if at all.  States like California, Oregon, Washington, Michigan, and Connecticut have passed comprehensive regulatory programs to address toxic chemicals.  Many of these state programs have been successful, and toxic chemicals regulation is a great example of state leadership filling a federal government void when it comes to environmental governance (climate change is another).  But the state-led approach has its critics, too.  For every state that has passed aggressive chemicals regulation programs, there is another state that has taken little or no action, leaving many populations vulnerable (minority, low-income, elderly, and infant populations bear the highest risk from exposure).  Chemical manufacturers themselves have called for reform as well, preferring a single, uniform regulatory program on the federal level to the patchwork of state programs that must presently be navigated.

Congress responded by passing the Frank R. Lautenberg Chemical Safety for the 21st Century Act, possibly the most sweeping environmental legislation enacted in years:

The bill allows the EPA to evaluate the safety of tens of thousands of older chemicals that were impossible to regulate under existing law and strengthens the agency’s hand in reviewing new chemicals. It requires the agency to consider only safety and health – and not costs – when deciding whether a chemical presents “unreasonable risk.” It charges companies up to $25 million to pay for the reviews, and provides new protections for vulnerable groups such as children, the elderly and people with compromised immune systems.

The bill passed with bipartisan support.  If there was any debate at all, it centered around the bill's preemption of state regulations.  Typically federal law trumpts conflicting state laws, unless Congress otherwise specifies.  Here, some states wanted to maintain their authority to regulate toxic chemicals.  Those states were, unsurprisingly, many of the states with strong existing regulations.  Representatives from California and Washington, for example, expressed concern that weak federal regulations might trump their stronger state regulations.  Or, from a more procedural point of view, if the federal government wants to regulate a new chemical, their lengthy regulatory review process would preclude a more rapid state response.  

All things considered, though, TSCA reform is a win.  A cynical EPA could hamper stronger state regulation in the future, but the more immediate outcome is that a national regulatory program for toxic chemicals is now more firmly in place.