Traffic on Toronto's Don Valley Parkway on Nov. 12, 2020.Fred Lum/The Globe and Mail
The warming of the planet is a “threat to the future of humanity,” the Supreme Court said Thursday, ruling that Ottawa has the authority to impose a minimum price on greenhouse gas emissions across the country.
The 6-3 ruling on the Liberals’ climate-change law – which sets out a minimum national standard for pricing carbon and other pollutants – has wide implications for business, industry and consumers, and for the shape of Canada itself. It means that Ottawa can make car drivers, homeowners and businesses in every province pay a steadily increasing charge for their use of fuels, and industry for their emissions. And provinces that object can’t do anything about it.
The Supreme Court majority said in its 35,000-word ruling that the provinces are incapable of addressing climate change effectively on their own. Leaving it to them could cause severe harm to Canada, the majority said, by adding to emissions and by undermining the country’s ability to press for international action.
“A provincial failure to act directly threatens Canada as a whole,” Chief Justice Richard Wagner wrote for the majority. Justice Suzanne Côté, Justice Russell Brown and Justice Malcolm Rowe dissented. Chief Justice Wagner said global warming is already harming the Canadian Arctic, coastal regions and Indigenous peoples.
Merran Smith, executive director of Clean Energy Canada, a think tank at Simon Fraser University in B.C., was pleased with the decision. “Any serious climate plan needs a backbone that does the heavy lifting, and carbon pricing is widely considered the most cost-effective way to reduce emissions,” she said in a statement.
Provinces are free to develop their own pricing systems, as long as they meet the minimum federal standard under the 2018 Greenhouse Gas Pollution Pricing Act. The idea is to discourage behaviours that create emissions. Currently, just more than half of all provinces have their own pricing systems for fuels and emissions and are not using the federal pricing system, the federal environment department said in an e-mail on Thursday.
The federal government intended the law to meet the country’s obligations under the 2015 Paris Agreement, which seeks to limit the increase in the Earth’s surface temperatures to 1.5 C by 2050.
The court case tested Canada’s ability as a federal state to address an existential threat on a national and global scale.
Alberta had described the law itself as a danger, imperilling federalism – the power-sharing bargain between Ottawa and the provinces. Agreeing, Justice Brown, a former member of that province’s judiciary, suggested that federal intrusions could now be possible in other areas of provincial jurisdiction: public health, management of provincial public lands, the construction of hydroelectric dams, the development and management of natural resources, the inflationary effects of intraprovincial trade and commerce, including the regulation of wages and prices, and the management of prisons.
Justice Côté opposed the law for a different reason, saying it vested extraordinary discretion in cabinet, and was therefore illegal. Justice Rowe and Justice Brown agreed with each other that regulating emissions belongs to provincial jurisdiction. (The three wrote separate dissents.)
Canada’s founding 1867 Constitution gives Ottawa the authority to legislate in matters of national concern that aren’t otherwise spelled out in the Constitution, and the use of this authority, though rare, is justified in this instance, the Supreme Court majority said.
Alberta, Saskatchewan and Ontario had referred the law to the appeal courts of their provinces for an opinion on its constitutionality. Only Alberta’s court, in a 4-1 ruling, found the law unconstitutional. On Thursday, Alberta Premier Jason Kenney and Saskatchewan Premier Scott Moe said they are concerned the ruling opens the door for the federal government in areas of exclusive provincial jurisdiction, including natural resource extraction.
“I can’t believe that the Supreme Court actually means for that to be a new principle of Canadian constitutional law, because, as Justice Rowe says, it would turn the federation on its head,” Mr. Kenney said.
Mr. Moe said “all Canadians should be concerned” that the federal government will use Thursday’s decision to expand their reach into areas like health care, too.
Mr. Moe rejected the notion that carbon pricing does anything to reduce greenhouse emissions, but said Saskatchewan would introduce a fuel charge as a result of the ruling.
Mr. Kenney said the decision on whether to introduce a new consumer carbon tax will hinge on which approach – provincial or federal – is cheaper for Alberta families, and imposes less economic damage.
“One thing Albertans can be sure of is we are not going to use the excuse of this decision or the federal carbon tax to squeeze more money for the government out of Albertans,” he said.
Jeff Yurek, Ontario’s Environment Minister, said the province will continue to implement its “tough-but-fair plan, approved by the federal government, to hold large, industrial emitters accountable for their pollution.”
The ruling brought mixed reactions elsewhere.
NDP environment critic Laurel Collins said the party welcomes the court ruling, but denounced “the lack of meaningful action” from the federal government.
Green Party Leader Annamie Paul called the ruling good news, saying that putting a price on carbon is a key to reducing greenhouse gases.
In B.C., provincial Environment Minister George Heyman lauded the ruling. “We supported the federal government’s right to impose a carbon-pricing system or to ensure any system provinces had in place was equivalent.”
Federal Conservative Party Leader Erin O’Toole promised to take up the fight, and repeal the carbon pricing law if elected.
“We will protect the environment and fight the reality of climate change, but we won’t do it by making the poorest pay more,” he said in a statement. “Conservatives prefer a collaborative approach to tackling climate change to make progress while also helping maintain a strong economy.”
Federal Environment Minister Jonathan Wilkinson shot back: “The question is whether this decision will put an end to the efforts of Conservative politicians fighting climate action in court.” He called the ruling “a win for the millions of Canadians who believe we must build a prosperous economy that fights climate change.”
Three distinct reactions came from law professors. Dwight Newman of the University of Saskatchewan said the dissenting judgments pointed out a shift to more centralized government and “may be right to warn of serious tensions potentially ahead.”
Joel Bakan, of the University of British Columbia’s Allard School of Law, said that “if the federal government and Parliament can’t do something like this ... a backstop measure limited to pricing that only kicks in if a province doesn’t meet minimum standards, and all of it to address an existential threat to the nation and the world – what can it do?”
And Jason MacLean of the University of New Brunswick said the court may have been too cautious: By insisting that the pricing of emissions does not amount to the regulation of emissions generally, it may have limited federal authority to assume a more ambitious leadership role, and to work closely with the U.S. Biden administration on a co-ordinated approach to climate action, he said.
With a report from Jeff Gray in Toronto
In 2018, the federal government announced that all provinces would need to implement a carbon-pricing system by April 1, 2019 and those that didn't would fall under a federal carbon tax. But what is carbon pricing anyway?
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