Saskatchewan Court of Appeal rules for federal carbon tax program

With implications across the country, the Saskatchewan Court of Appeal handed down a 3-2 decision  on May 3, ruling that the federal Greenhouse Gas Pollution Pricing Act (GGPPA) falls within federal government’s “National Concern” constitutional power. The Saskatchewan Association for Environmental Law has compiled all the legal submission documents here ; the EcoFiscal Commission provides a summary of the 155-page Decision here  .

Local coverage and reaction appeared in the Regina Leader Post (May 3) in “Court of Appeal: Saskatchewan government loses carbon tax challenge , and the Premier of Saskatchewan immediately declared that the province will appeal to the Supreme Court of Canada, which it must do within 30 days.  As the Globe and Mail points out,  “Saskatchewan court rules federal carbon tax constitutional in first of several legal challenges” .  According to a CBC report, the Premier of New Brunswick  is still considering his options, but newly-elected Premier Jason Kenny of Alberta will join the Saskatchewan Supreme Court action. The Premier of Manitoba announced that his government will not abandon its own court challenge, which it launched on April 3. In Ontario, the Ford government is aggressively promoting its own battle over the carbon tax: four days of hearings ended on April 18th, and the Ontario Court of Appeal is expected to render its own decision on the constitutionality of the carbon tax in several months – possibly not until after the federal election in October 2019.

The political significance of the Saskatchewan decision:  Aaron Wherry at CBC  summarizes the general situation in  “The carbon tax survived Saskatchewan. That was the easy part”  (May 4).  The Globe and Mail states what is a widely accepted opinion in its editorial,  “Why conservatives secretly love the carbon tax”: “Round One goes to Ottawa. But the courtroom war against the federal carbon tax continues – waged by a fraternity of conservative provincial governments with more of an eye on immediate political returns than ultimate legal outcomes.”

Update:  Three law professors- Jason MacLean (University of Saskatchewan), Nathalie Chalifour ( University of Ottawa) and Sharon Mascher (University of Calgary)  published a reaction to the Saskatchewan Court’s decision on May 7 in The Conversation“Work on Climate not weaponizing the constitution”   takes issue with some of the finer legal points of the decision, but welcomes the Court’s recognition of the urgency and scale  of the climate emergency, and concludes: “We have to stop weaponizing the Constitution and start working together, across party lines at all levels of government, on urgent and ambitious climate action.”

Generational justice and climate change: we can all strike for our future

The constitutional challenge by the government of  Saskatchewan to the Canadian government’s Greenhouse Gas Pollution Pricing Act of 2018  is underway – hearings were held in February and a decision is pending, with a similar challenge by Ontario to be heard in April. The main purpose of the court challenges is to nullify the federal government’s national carbon tax program , the signature issue of the Pan-Canadian Framework on Clean Growth and Climate Change.  But the case has also given youth activists an opportunity to address the intergenerational justice of Canada’s climate change policies, as described in “Canada obliged to protect future generations from climate change, test case on carbon tax hears”   (Feb. 20)  in The Narwhal.

The preamble of the Greenhouse Gas Pollution Pricing Act of 2018  states: “…Parliament recognizes it is the responsibility of the present generation to minimize impacts of climate change on future generations.”   This gave the Intergenerational Climate Coalition, led by  Generation Squeeze ,  a platform, as recognized intervenors, to argue that: “Failure to price pollution discriminates against younger Canadians, because it puts in jeopardy our reasonable aspiration to thrive in 2030 and beyond” and “the health threats to children and future generations are vastly disproportionate to their contribution to greenhouse gas emissions”. A press release in December 2018 describes the coalition and summarizes their arguments – mostly based on health consequences of climate change.

This issue of intergenerational  justice was also addressed by Hadrian Mertins-Kirkwood in “The all too ugly truth: Climate change is generational genocide” , published  in Behind the Numbers in February.  Echoing the strong and direct tone we have come to expect from Greta Thunberg,  Mertins-Kirkwood states: “For the generations poised to inherit our warming world, the complacency and greed of their predecessors is no longer being tolerated. From Autumn Peltier’s presentation to the United Nations to the climate strikes organized by school children across Europe to the Quebec youth suing the government for failing to protect the environment, young people are refusing to sit by while this existential crisis deepens.”  He continues: “The perpetrators of the climate change genocide include the fossil fuel industry and climate-denying politicians, of course, but also the silent majority of fossil fuel consumers who actively ignore the mounting scientific evidence or otherwise take no responsibility for the path we are on. It is this generation’s campaign of destruction that is being inflicted upon all other and future generations.”

Youth are asking for help:  The main point of Mertins-Kirkwood’s article is to urge us all to act:  First, by recognizing and acknowledging how we have contributed to the problem; Second, by making climate change “a central concern for everyone in your life” ; and third, by supporting  those fighting for a better future, through donations, but also by amplifying youth voices “online and beyond”.  Greta Thunberg has also stated:  “If you think that we should be in school instead, then we suggest that you take our place in the streets, striking from your work. Or, better yet, join us, so we can speed up the process.”

How to respond? “Intergenerational” organizations exist to support the actions of youth activists:  for example, in Canada, Canadian Parents for Climate Action, and  For our Grandchildren Canada ; in Australia, Australian Parents for Climate Action and  1 Million Women .   Fridays for Future Canada   is coordinating the school strikes, but there are many more  youth-led activist groups, many of whom are asking for support and donations.   Some Canadian examples:  Canadian Youth Climate Coalition ; ENvironment JEUnesse  (Quebec group for under-35’s suing the government) ; PowerShift Young and Rising  ; Youth Climate Lab ; The 3% Project .

Youth in at least 22 communities in Canada are participating in the Global Fridays for the Future climate Strike on March 15.  As George Monbiot wrote in Resilience,  “Young climate strikes can win their fight. We must all help”.

fridays for future strikes

An excellent example:  At their most recent climate strike, elementary school students in Sudbury were presented with a letter  of support from the faculty members of Laurentian University.

Canada: the year past and the battle over carbon pricing in the year ahead

The Energy Mix Yearbook Review for 2018 is undoubtedly the most thorough and informed review of 2018 climate issues for Canadians.  It compiles its newsletter coverage of 2018 stories and adds context and analysis, as well as a multitude of links to further reading.  The sections of exceptional interest include “Jobs and Just Transition: Renewables and Efficiency Jobs Surge while Fossil Employment Sags “; “Fossils go for Broke”  and “Canada’s Contradiction: Low-Carbon Leader or Perpetual Petro-State?”  .  Other, briefer overviews for Canada include “State of Play 2018”  from EcoJustice, highlighting legal issues;  “ 10 wins for Canadian energy and climate action in 2018: Year in review” with a positive slant from the Pembina Institute (Dec. 20) ; and from the Council of Canadians 2018 in Review: Offshore drilling (December 21),  a chronology from Atlantic Canada.

On December 20, easily overlooked because of the holiday season,  Environment and Climate Change Canada published five separate review reports.  Clean Canada:  Protecting the Environment and Growing our Economy   is a snapshot of Canada’s federal climate action policies and expenditures, and seems intended for a wide popular audience.  Second Annual Synthesis Report regarding the Pan-Canadian Framework on Clean Growth and Climate Action   (French version here )  is a more detailed accounting of the policies and programs by the federal and provincial governments in 2018, organized in chapters relating to carbon pricing, complementary measures (buildings, transportation, electricity, agriculture, etc.); adaptation and resilience; clean technology and innovation and jobs; reporting and oversight; federal engagement and partnership with Indigenous people .  2018 Canada’s Greenhouse Gas and Air Pollutant Emissions Projections Report  (French version here ) provides, again,  a policy overview but its main purpose is to continue the series of annual reports (since 2011) of detailed emissions data for economic sector and  geographic region. It also includes emissions projections to 2030 under two different scenarios – (spoiler alert: oil and gas will be Canada’s leading source of emissions, followed by transportation and heavy industry).

Other substantial reports published on December 20 will form the basis for consultations in 2019.  The new draft for the Federal Sustainable Development Strategy 2019 to 2022 will inform a public consultation until April 2, 2019. (The companion 2018 Progress Report on the Federal Sustainable Development Strategy  evaluates the 2016 to 2019 strategy goals and the activities of  41 federal departments and agencies.)

The final Clean Fuel Standard Regulatory Design Paper focuses on the liquid fuels regulations, with comments requested by February 1, 2019. The draft regulation is scheduled to be published in 2019 and a final regulation by 2020, bringing to an end a complex consultation process that began in 2016 (summarized by WCR  in January 2018).  The Clean Fuel Standard will apply to the full life cycle of all fuels, gasoline and diesel, aviation fuel, natural gas for heating, and metallurgical coal, and has been called the single most important policy tool to achieve Canada’s emissions reductions target for 2030.

And finally, a regulatory proposal relating to the most publicized issue for 2019: carbon pricing.  Next Steps in Implementing the Federal Pollution Pricing System for Large Industry (the “Output Based Pricing System”)  was released on December 20, and carries  a deadline for public comments of February 15, 2019. The Output Based Pricing System registration system went live on November 1, 2018, with reporting and verification requirements starting on January 1, 2019.

The coming battles over Carbon tax in 2019:   As Prime Minister Justin Trudeau announced in late October 2018,  the federal government has not backed down on its determination to impose a carbon pricing policy across all Canadian jurisdictions in 2019, despite resistance and constitutional challenges led by the premiers of Saskatchewan and Ontario.  In some provinces – British Columbia , Alberta , Quebec  – established carbon pricing systems continue; in Nova Scotia , Prince Edward Island , Newfoundland and Labrador –  newly approved systems which meet the government’s benchmarks under the Pan-Canadian Framework will begin.   In the other provinces who have opposed the federal plan – Manitoba , Saskatchewan , New Brunswick and Ontario  –  the federal backstop fuel charge will be imposed starting in April 2019, sweetened by a “Climate Action Incentive”,  whereby all carbon revenue collected by the federal government will go directly back to people in the provinces from which it was generated.  The Annex of the Second Annual Synthesis Report of the Pan-Canadian Framework  provides up to date summaries for the situation in each province.

Public opinion supports the government’s carbon tax actions, though barely, according to polling made public by Global News on January 3 . Based on a November 9 internal poll conducted for the Liberal party, 46 per cent supported and 44 per cent opposed the plan  in Saskatchewan and Manitoba ; in Ontario, 43 per cent were in support and 32 per cent opposed. Nationally, support was at 47 per cent and opposition was at 29 per cent, with women more supportive than men.

Recently, one article appeared in the labour press, supporting carbon pricing:  “Pricing carbon first step to tackling climate change” in CUPE’s Economy at Work newsletter (Jan. 2).  The mainstream press has been far more active, with general support for a carbon tax: for example,  an editorial in  the Globe and Mail newspaper is titled: “ Do you want a carbon tax, or do you want to be lied to? “(Dec. 26) . The editorial is critical of the Ontario government’s Ontario Carbon Trust proposal, about which it states:  “One emerging conservative alternative to carbon pricing is working with business to spur the development of green technology. What that usually means is taxpayers giving subsidies to business.… “Ontario’s Progressive Conservatives ….say they will dish out $400-million on a “Carbon Trust” that will collaborate with industry on emissions cuts. They can rail against carbon pricing all they want; spending taxpayer money has the same effect on pocketbooks as asking consumers to pay more.”

The Canadian Chamber of Commerce was also widely cited as supporting a carbon tax, to the extent that they issued a press release on December 17 2018, clarifying their position:  “While some of the [media] coverage notes the Chamber’s support for carbon pricing, it neglects to include that the support is contingent upon significant caveats. The report calls for government to take concrete steps to reduce the overall regulatory burden on businesses in Canada, and to return the revenues from the carbon tax to business to help them lower their carbon emissions and their energy costs.”  The report referred to, outlining the full arguments, is   A Competitive Transition: How smarter climate policy can help Canada lead the way to a low carbon economy, which was published in December 2018.

Take it to the Courts!  Saskatchewan filed its challenge to the constitutionality of the federal price on carbon pollution in April 2018; the Saskatchewan Court of Appeal announced that it will hear the case in February 13 and 14, 2019, and released the lengthly list of intervenors which it has allowed to appear.  Intervenors include the provinces  of Ontario and New Brunswick on the side of Saskatchewan, and the province of British Columbia on the side of the federal government; other intervenors include the Canadian Public Health AssociationEcoJustice, representing the David Suzuki Foundation and the Athabasca Chipewyan First Nation; and the Council of Canadians , as part of a  group of seven other civil society groups, including the National Farmers Union and  Climate Justice Saskatoon.

A separate case  was filed by the Government of Ontario and will be heard by the Ontario Court of Appeal in April 2019.  The full list of intervenors, as well as the court filings by the Ontario government, appear at the Court of Appeal website here . British Columbia and New Brunswick have also applied for intervenor status in this case.

How will the courts decide?   “Courts should not have to decide climate change policy” appeared on December 21  in Policy Options,  with a discussion of the carbon pricing cases as well as the recent litigation by Quebec’s ENvironnement JEUnesse . Co-authors Nathalie Chalifour and Jason Maclean  argue that “only a collaborative  approach to policy-making is capable of delivering the kinds of rapid, forward-looking and systemic changes in how industries and societies function that are necessary to avoid the most catastrophic consequences of climate change. Litigation, by contrast, is necessarily reactive and typically divisive, time-consuming and influenced by the incremental development of legal precedent.”  Regarding the provincial carbon tax challenges, they state that “the federal Greenhouse Gas Pollution Pricing Act is an example par excellence of cooperative federalism.”…. “There’s little doubt that the courts will confirm the federal government’s jurisdictional authority to regulate GHG emissions. They may even decide that the Constitution obliges the government to take more serious climate action.”

A complex road is ahead, as indicated by a C.D. Howe Institute Memo published in October 2018:   “Federal carbon-pricing backstop is new constitutional territory”.

 

New climate legislation in Saskatchewan – Prairie Resilience without carbon pricing

On October 30,  the first Bill introduced to the new session of the Saskatchewan legislature was Bill No. 132—The Management and Reduction of Greenhouse Gases Amendment Act, 2018 , which, according to a Regina Leader-Post article , carries on  Bill 95, which was introduced in 2009 by the previous government of Brad Wall .  The government’s press release   states that the new legislation: “provides the regulatory framework for performance standards to reduce industrial greenhouse gas emissions, a provincial technology fund, performance credits and offset credits…. In addition to performance standards and compliance options, these amendments require large emitters to register with the province, provide for administrative efficiencies in governance of the technology fund, and enable associated regulations and standards. ”   The press release carries on the province’s existing climate change strategy from December 2017,  titled Prairie Resilience, which rejects carbon pricing.   saskatchewan Prairie Resilience cover

Saskatchewan introduces climate change legislation as feud with Ottawa continues”   in the National Observer  provides a summary; the “feud” referred to was most recently in the news on October 29,  “Doug Ford attacks ‘terrible tax’ on carbon alongside Saskatchewan Premier Scott Moe” .

As yet, the text of the Bill is available only through a two-step process: Bills are listed here , which lists a PDF file “ Progress of Bills 2018 – 2019”  which includes a live link to Bill 132.

Just Transition Summit in Saskatchewan – updated

saskfordward just transition jobsAlthough Alberta is the clear leader in oil and gas production in Canada, the province of Saskatchewan ranks second, with about 13% of Canada’s total crude oil production.  Saskatchewan also derives approximately 40 per cent of its power from coal.  Yet on October 27 and 28, progressive organizations in that province convened an enthusiastic forum,  Just Transitions: Building Saskatchewan’s Next Economy Summit in Regina. Sessions most related to employment issues included:  “Transitioning Employment and Work”,   moderated by Hadrian Mertins-Kirkwood of the Canadian Centre for Policy Alternatives, and including panels on  “Labour and Just Transition” by Unifor, CUPW and SEIU West.  There was also a session on “Phasing out Coal” , presented by Climate Justice Saskatoon and Chris Gallaway of the  Alberta Federation of Labour. The full list of presentations is here .

Hosting organizations included: Saskforward   , the Corporate Mapping Project, Climate Justice Saskatoon , the Regina Public Interest Research Group and Unifor.

Local media coverage appeared in the Regina Leader-Post newspaper, and several items at CBC-Saskatchewan, including:  “Indigenous perspective must be heard on climate change, Regina conference told” ;  “Regina summit looks at what shift from coal to renewable energy means for future of Sask. Economy” (specifically reporting on the  town of Coronach, home of the Poplar River coal mine and associated Poplar River Generating Station, threatened by the federal government’s goal to phase-out coal generated electricity by 2030); and an Opinion piece by Emily Eaton from the University of Regina “Beyond ‘jobs versus environment’: Transitions to renewable energy present opportunities for us all”  (Oct. 25).

winds of change saskatchewanEmily Eaton was one of the authors of  “Winds of Change: Public Opinion on Energy Politics in Saskatchewan” , published in April 2018 by the Canadian Centre for Policy Alternatives Saskatchewan office.  Based on a public opinion poll of 500 Saskatchewan adults, the report summarizes the political climate in Saskatchewan and shows that despite the government’s opposition to carbon taxes and the Pan-Canada Framework on Clean Growth and Climate Change, there is public support for a transition away from fossil fuels, and for government investment in solar and wind power.

The Saskatchewan event follows the Just Transition and Good Jobs for Alberta 2018 meetings, held in Edmonton on October 22 and 23, with active participation and sponsorship of USW, Unifor, and the Alberta Federation of Labour.  This was the third year of meetings, coordinated by BlueGreen Canada.

Update:  In November, Climate Justice Saskatchewan  has released a report, The Future of Coal in Saskatchewan: Bridging the Gap: building bridges between urban environmental groups and coal-producing communities in Saskatchewan . The report summarizes what was heard during 17 interviews with citizens of the small coal-producing communities of Estevan and Coronach during the spring of 2018, and draws some conclusions which might have application for other social justice and climate justice initiatives.  In general, the interviews exposed the unique challenges of each rural community, but found a common sense of uncertainty stemming from a lack of planning and communication about phasing out coal, bound up in wider challenges of rural decline, agricultural trends, and the boom-and-bust cycles of oil and gas.