On June 28, the Ontario Court of Appeal issued their Decision , 4 to 1 in favour of the federal government’s right to impose a system of carbon pricing across Canada, under the Greenhouse Gas Pollution Pricing Act. Some important excerpts from the majority decision:
“Parliament has determined that atmospheric accumulation of greenhouse gases causes climate changes that pose an existential threat to human civilization and the global ecosystem ….The need for a collective approach to a matter of national concern, and the risk of non-participation by one or more provinces, permits Canada to adopt minimum national standards to reduce [greenhouse gas] emissions…
The Act does this and no more. It leaves ample scope for provincial legislation in relation to the environment, climate change, and GHGs, while narrowly constraining federal jurisdiction to address the risk of provincial inaction.
The charges imposed by the Act are themselves constitutional. They are regulatory in nature and connected to the purposes of the Act. They are not taxes.
The Act is the product of extensive efforts – efforts originally endorsed by almost all provinces, including Ontario – to develop a pan-Canadian approach to reducing GHG emissions and mitigating climate change. This, too, reflects the fact that minimum national standards to reduce GHG emissions are of concern to Canada as a whole. The failure of those efforts reflects the reality that one or more dissenting provinces can defeat a national solution to a matter of national concern”
The Ontario government immediately announced that it will appeal the decision to the Supreme Court. The Premier of Alberta, part of the Canada-wide Conservative opposition to the federal carbon tax, said that Alberta is reviewing the decision in his press release. Saskatchewan, which lost its own court challenge to the GGPPA in May 2019, has already filed an appeal in the Supreme Court of Canada, scheduled for December 5 2019 – notably after the coming federal election, in which climate change issues are widely expected to be a top priority for voters.
For a thorough discussion of the decision and compilation of reactions, read: “Doug Ford loses carbon tax battle with Trudeau” in the National Observer . “Ontario Court of Appeal Upholds Federal Carbon Tax” appeared in The Energy Mix on July 2 and also compiles reaction from many sources. “Federal Carbon Pricing Regime Now Two-for-Two” (July 2) in Lexology offers a more lawyerly perspective. And for the mood in Ontario, read “Doug Ford’s $30 million carbon tax fight is money down the drain but it keeps his brand afloat” in the Toronto Star (July 3) or in the Globe and Mail, “The real carbon tax is the money provinces are spending on lawyers.”
Provinces line up to participate in Supreme Court appeal: ( Updated as of July 10): As of July 8, seven provinces are registered as intervenors in the Saskatchewan challenge to the carbon tax, scheduled to be heard by the Supreme Court of Canada in December 2019. On July 8, CBC reported that New Brunswick Premier Blaine Higgs abandons planned carbon tax court fight , stating that the province will not waste taxpayers’ money on their own carbon tax court case, but will act as an intervenor in the Saskatchewan’s appeal. Prince Edward Island is also intervening, as explained in P.E.I. intervening in Saskatchewan’s carbon tax court challenge” (July 5). The Premier of PEI states they are “absolutely not” joining the fight against a carbon tax, but are intervening as a way to reserve the right to participate in future. Even more surprisingly, “Quebec intervenes in Saskatchewan’s challenge of carbon tax“, as reported in the Montreal Gazette on July 8. Quebec has joined the case to ensure its provincial rights are upheld in any court decision, and to protect Quebec’s existing cap and trade system.
Aaron Wherry of CBC posted an analysis of the Conservative premiers’ positions against the federal carbon price in Premiers say they want a ‘co-operative’ approach to climate policy. Are they serious? (July 10). It discusses the differences amongst Alberta’s Jason Kenney, Ontario’s Doug Ford, Saskatchewan’s Scott Moe, New Brunswick’s Blaine Higgs and Bob McLeod of the Northwest Territories, who are meeting separately, in advance of the formal Council of the Federation meeting in Saskatoon, July 9 to 11.