Saskatchewan court validates Trudeau's carbon tax

The Saskatchewan premier vowed to challenge the Trudeau government's carbon tax in Canada's top court Friday, after a lower court ruled it is constitutional.

In a 3-2 decision, the Saskatchewan Court of Appeal said the Greenhouse Gas Pollution Pricing Act “falls within the legislative authority of Parliament. It is not unconstitutional in whole or in part."

Environment Minister Catherine McKenna called the decision "a win for Canadians and for future generations."

However, Saskatchewan Premier Scott Moe immediately vowed to appeal the ruling to the Supreme Court of Canada. Newly-elected Alberta Premier Jason Kenney vowed to join him and Ontario Premier Doug Ford also voiced support for keeping up the legal challenge to the Trudeau government.

"Though I am disappointed with today's ruling, our fight will continue on behalf of Saskatchewan people – who oppose the ineffective, job-killing Trudeau carbon tax," Moe said on Twitter.

McKenna said the decision confirms that putting a price on pollution and returning the revenues to Canadians through the climate action incentive rebate is not only constitutional, but is “an effective and essential part of any serious response to the global challenge of climate change.”

McKenna also pointed to the court’s recognition that climate change is manmade.

In a judicial first, the court said “climate change is doubtless an emergency in the sense that it presents a genuine threat to Canada.”

“The factual record presented to the Court confirms that climate change caused by anthropogenic greenhouse gas [GHG] emissions is one of the great existential issues of our time,” Chief Justice Robert Richards wrote in the 155-page decision.

“The pressing importance of limiting such emissions is accepted by all of the participants in these proceedings.”

McKenna urged conservative leaders to join in climate action

The court said the impacts on Canadians include thawing permafrost, increases in extreme weather and extreme weather events such as forest fires, degradation of soil and water resources, increased frequency and severity of heat waves, and expansion of the ranges of vector-borne diseases. Among submissions the court drew on was the Climate Change 2014 Synthesis Report Summary for Policymakers from the Intergovernmental Panel on Climate Change.

“Predictions show that Canada’s temperature, particularly in the Arctic, will warm at a faster rate than that of the world as a whole,” the court said.

McKenna said people need look no further than a short drive from Parliament Hill to see the impact. Thousands of residents of Ottawa and across the Ottawa River in Gatineau, Quebec are fighting to save their homes from the second massive flooding in three years. She called on conservative leaders across the country to join forces with the federal government to work on this challenge.

“It is time for conservative politicians to stop the partisan games and join in on serious and effective climate action,” McKenna said. “My question to conservative politicians, from Doug Ford to Scott Moe to Jason Kenney to Andrew Scheer: ‘Will you stop blocking climate action and join us in fighting climate change.’”

Moe’s answer was a resounding no. Focussing on the minority of two judges who deemed the tax unconstitutional, he said, “There are strong grounds for an appeal. I remain hopeful for a different outcome.”

Kenney tweeted disappointment in the decision and said "we will continue to defend taxpayers from the carbon tax cash grab."

In a statement, Kenney insisted this was “far from the broad victory the federal government sought.”

“We disagree with the narrow ruling by the majority that the federal government has the power to ensure a provincial minimum price on carbon, and will be joining Saskatchewan in their appeal to the Supreme Court of Canada.”

Saskatchewan premier says federal election will decide carbon tax fate

Ford echoed the western conservative premiers' disappointment, saying Ontario will not stop fighting the federal carbon tax. "We promised to fight the federal government's job-killing carbon tax with every tool at our disposal, which includes supporting our friends in Saskatchewan in court."

However, Ontario Green Party Leader Mike Schreiner said this is a blow to Ford’s efforts.

“The result does not bode well for the Premier’s own case against pollution pricing, which is supported by Nobel Prize winning economists as the best way to reduce emissions,” he said.

“The floods ravaging parts of Canada show Ford is on the wrong side of history and should stop emptying the public purse to sabotage climate solutions.”

The Act came into force on June 21, 2018. The federal carbon price in provinces that do not have one of their own starts at a minimum of $20 a tonne and is to rise $10 each year until 2022.

The Saskatchewan government was one of the first to publicly challenge the federal plans to price carbon and offer income tax rebates to citizens in provinces that have failed to meet a national standard.

Court challenges are now also underway in Ontario, New Brunswick, Manitoba, and Kenney, elected in April, has previously said he would scrap Alberta’s existing carbon tax and launch his own court challenge of the federal plan.

The conservative-leaning premiers have declined to impose a price on carbon pollution, previously agreed to by federal, provincial and territorial governments as part of a national climate change strategy adopted in December 2016.

“Saskatchewan plans to intervene in each of these cases,” Moe said. “Ultimately the fate of the Trudeau carbon tax will be decided in the federal election this fall.”

Indicating that climate change will be a ballot question in the fall election, Federal Conservative Leader Andrew Scheer issued a statement on the court ruling saying he would "scrap Justin Trudeau’s carbon tax."

“I agree with Justices Neal Caldwell and Ralph Ottenbreit that it is ‘repugnant for Parliament to exercise its power’ in this way," he said, referring to the minority decision.

“Saskatchewanians, along with Canadians from coast to coast, have clearly said no to Justin Trudeau’s carbon tax. The Governments of Saskatchewan, Manitoba, Ontario and New Brunswick are all fighting the Liberals’ tax grab in court, and I look forward to having Alberta Premier Jason Kenney join that fight soon.

The existence of climate change was not at issue in the case. Nor was whether greenhouse gas pricing should be adopted or whether the Act is effective or fair. The court said those are questions for Parliament and provincial legislatures to answer.

The sole issue in this case was whether Parliament has the constitutional authority to enact the Act, which relates to the division of federal and provincial powers set out in the Constitution.

Saskatchewan argued the carbon tax is unconstitutional because it encroaches on provincial jurisdiction and is not applied evenly across the country.

However, the Saskatchewan Court of Appeal ruling said, "There is no recognized constitutional requirement that laws enacted by Parliament must apply uniformly from coast to coast to coast.

"The environment is not a legislative subject matter that has been assigned to either Parliament or the provincial legislatures under the Constitution Act.”

Given that neither level of government has exclusive authority over the environment, it said,
“Parliament can legislate in relation to issues such as GHGs so long as it stays within the four corners of its prescribed subject matters and the provinces can do the same so long as they stay within their prescribed areas of authority.”

Moe said the carbon tax has been the ballot question in provincial elections in Ontario, Alberta and New Brunswick in the past year — and “in every case, the party supporting the Trudeau carbon tax has lost.”

'Provinces are no subsidiaries of the federal government': Moe

Rather than adopt the federal government’s Pan-Canadian Framework on Clean Growth and Climate Change that came out of a first minister’s meeting in December 2016, Saskatchewan released its own climate change strategy in December 2017.

The Prairie Resilience: A Made-in-Saskatchewan Climate Change Strategy proposed to address climate change without a broad-based carbon tax.

The plan would impose sector-specific output-based performance standards on facilities emitting more than 25,000 tonnes of CO2 equivalent per year.

“Provinces are no subsidiaries of the federal government,” Moe said. “Saskatchewan has the authority to implement our Prairie Resilience Plan to fight climate change, to reduce emissions and to do it without a carbon tax.

“Unfortunately this court did not agree, but as I said, today’s ruling is just one step in the battle. The Trudeau carbon tax is bad economic policy, it’s bad environmental policy and our fight against it will continue.”

Trudeau's Liberals have said that making polluters pay is a key plank of the government's strategy to fight climate change and move toward Canada's international targets under the 2015 Paris Agreement.

The court agreed.

“Climate change is a global problem and, accordingly, it calls for a global response. Such a response can only be effectively developed internationally by way of state-to-state negotiation and agreement,” Richards wrote.

In making these international commitments, Canada is expected to make national commitments with respect to greenhouse gas reductions and mitigation targets.

“Those commitments are self-evidently difficult for Canada, as a country, to meet if not all provincial jurisdictions are prepared to implement GHG emissions pricing regimes – regimes that, on the basis of the record before the Court, are an essential aspect of successful GHG mitigation plans.”

This recognition by the court that there has to be a role for the federal government in addressing this is significant, said Nathalie Chalifour, associate professor of law at the University of Ottawa and co-director of the Centre for Environmental Law and Global Sustainability.

Both the Saskatchewan and Ontario governments have argued they don’t need to have the federal government involved in climate change efforts — that the provinces can deal with this on their own.

“It was accepted by the court that no single province can address this issue at a national scale,” Chalifour said in an interview. “That in and of itself speaks to the need to recognize federal jurisdiction.”

Although the province has the right to appeal, Chalifour said that she wishes the provinces opposed to the federal carbon pricing plan would instead focus more on addressing the issue of climate change.

“While we are focusing on the minutiae of constitutional law, ultimately climate change is continuing to become a bigger problem for this country.”

And the reality is, even if the province wins on appeal and the act is deemed unconstitutional, she said the federal government would simply have to tweak the law to have it fit within its jurisdictional powers. The price on carbon is not designed as a tax now — it’s a behaviour changing mechanism — but it could be.

Ultimately, if there is political will to introduce a price, there is a way, so all the opposition amounts to hand-wringing, rhetoric and political posturing.

“It’s a real pity that this has become a partisan issue,” she said.

“The people who will pay are younger generations, Indigenous communities, people who have lower incomes — those who don’t have the resources to deal with floods and wildfires and heat waves that are going to become more frequent and more intense.”

McKenna made clear the federal government won’t be deterred by conservative detractors.

“Cities and towns are on the front lines of climate change. They can't pretend it's not happening, they can't pretend that we can do less as opposed to more,” McKenna said.

“Our scientists have shown that Canada's warming at twice the global average, three times or more in our north, that we are going to see the impacts and we are seeing the impacts of climate change.”

Editor's note: This story was updated at 6:30 p.m. ET on May 3, 2019, with reaction and earlier at 6:10 with a Catherine McKenna tweet, at 6:02 p.m. ET with comments from the federal Conservative leader, at 5:40 p.m ET with reaction and background and at 3:55pm and 4:06 p.m. and ET with reactions from the federal environment minister and the premiers of Saskatchewan, Alberta and Ontario. It was updated again at 10:11 PT with additional comments from Chalifour.