In 2018, the Canadian government adopted a national carbon tax of $40 per ton. The tax was intended to ratchet up by 5% a year and take into account inflation. Canada, like its neighbor to the south, is a constitutional democracy that attempts to respect the rights of its 10 provinces and 3 territories while maintaining a cohesive national legal system. In America, we hear a lot about “states’ rights,” and in Canada the provinces are keen to chart their own course whenever possible. Three provinces — Alberta, Saskatchewan, and Ontario — opposed the national carbon tax and took steps to block it in court.
Last week, they lost their fight when the Canadian Supreme Court ruled 6 to 3 that the carbon tax is legal because of the “peace, order and good government” [POGG] provisions in the Canadian constitution, which give the federal government the authority to enact laws to deal with issues that concern the entire country. The POGG doctrine applies when there is a “provincial inability to deal with the matter” and where the “failure of one or more provinces to co-operate would prevent the other provinces from successfully addressing it,” according to the CBC.
Writing for the majority, Chief Justice Richard Wagner said the federal government is free to impose minimum pricing standards because the threat of climate change is so great that it demands a coordinated national approach. He agreed that climate change is a pressing matter of national concern and said it is constitutionally permissible for Ottawa to take the lead on a threat that crosses provincial boundaries. “Climate change is real. It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future,” Wagner wrote. If Canada’s Parliament was prohibited from addressing the emissions issue, “irreversible harm would be felt across the country,” he added, especially in communities and regions most vulnerable to the effects of global warming.
In his opinion, he wrote further that there is a “broad consensus among international bodies” that carbon pricing is a “critical measure for the reduction of GHG emissions,” and the threat of climate change “justifies the limited constitutional impact. The evidence clearly shows that establishing minimum national standards of GHG price stringency to reduce GHG emissions is of concern for Canada as a whole. This matter is critical to our response to an existential threat to human life. As a result, it readily passes the threshold test and warrants consideration as a possible matter of national concern.”
“A failure to include one province in the scheme would jeopardize its success in the rest of Canada. What is more, any province’s refusal to implement a sufficiently stringent GHG pricing mechanism could undermine GHG pricing everywhere in Canada,” Wagner said. “Emitting provinces retain the ability to legislate, without any federal supervision, in relation to all methods of regulating GHG emissions that do not involve pricing. They are free to design any GHG pricing system they choose as long as they meet the federal government’s outcome-based targets.”
Predictably, the leaders of the provinces who came out on the losing end of the decision were quick to start shouting about federal overreach, the destruction of the Canadian federation, and a massive loss of critical jobs if they are not allowed to keep pumping death-dealing pollutants into the air. A few generations ago, they would have been moaning about restrictions on asbestos or DDT.
How can a government justify putting any limits on economic activity, even if they cause people to get sick and die, decrease fertility, and make the Earth so hot that humans can no longer survive? Clearly, they should be free to extract and sell every molecule of fossil fuel they can find in order to keep their economies humming. We hear the same sort of “free market” blather from reactionaries south of the Canadian border all the time.
Justices Russell Brown and Malcolm Rowe both wrote lengthy dissenting opinions to Wagner’s majority opinion, with Brown saying the law’s subject matter “falls squarely within provincial jurisdiction. This is a model of federalism that rejects our Constitution and rewrites the rules of Confederation,” he wrote. “Its implications go far beyond the [carbon tax] act, opening the door to federal intrusion — by way of the imposition of national standards — into all areas of provincial jurisdiction, including intra-provincial trade and commerce, health, and the management of natural resources. It is bound to lead to serious tensions in the federation.”
Justice Rowe added that the POGG clause should be a “residual and circumscribed power of last resort. Courts interpreting the division of powers must be careful not to dim or to whittle down the provisions of the Constitution, and its underlying values. The Canadian federation guarantees the autonomy of both orders of government within their spheres of jurisdiction.” In other words, peace. order, and good government considerations have no place in a discussion about behavior that endangers all Canadians. The provinces should be free to jeopardize the health and safety of all Canadians if there’s a buck to be made.
Alberta premier Jason Kenney and Saskatchewan premier Scott Moe both issued snarling denunciations of the court’s ruling, suggesting they will do everything in their power to thwart implementation of the decision. Kenney said he was “profoundly concerned” that the court’s expansive ruling would vest too much power in the hands of the federal government to fight climate change. “We’re going to consult with Albertans and talk to our allied provinces to determine the best way forward to protect jobs and the economy and to minimize the cost of any future policies on this province,” he said. He also lauded his government’s pathetic attempts to limit carbon emissions from the tar sands in his province, which contain the dirtiest oil to be found anywhere on Earth.
Moe was equally combative. He said the court decision “does not change our core conviction that the federal carbon tax is bad environmental policy” and “simply wrong.” He claimed the carbon tax “kills jobs” and “threatens the competitiveness of our industries.” Moe and other leaders have said the carbon backstop places an unfair financial burden on farmers — especially those who use fossil fuels to dry grain and corn. He added that Saskatchewan will “forge our own path” and that he would outline soon measures his province will take to “protect the people of Saskatchewan while addressing climate change.”
Stop Burning Fossil Fuels
The solution to the existential crisis of an overheating planet is clear. Stop burning fossil fuels! Alberta, Saskatchewan, and Ontario have all the hydro, solar, wind, and geothermal power they could ever possibly need at their fingertips and it’s all free. All it would take is the political will to make renewable energy the dominant source of power in their provinces. There need not be any job losses or burdens on farmers. Listening to these reactionaries is like listening to people trying to defend whaling or using coal to power naval ships. Leadership means embracing and managing change, not straining to prevent change from happening.
The old ways threaten us all with extinction. What more does any sentient person need in order to know it is time to act and act decisively? The question now is whether the ruling by the Supreme Court of Canada will have any impact on future rulings by the US Supreme Court. The answer, sadly, is probably not. The reactionaries on the USSC are firmly committed to preserving the status quo and some of them will be on the court for the next 40 years. By then, it will be much too late for us all. Unfortunately, the path forward for the US is probably in the political arena, not the so-called halls of justice.
A CleanTechnica hat tip to Dan Allard.
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