The Supreme Court of Canada has handed down a decisive judgement in favour of the federal government’s carbon pricing plan to reduce greenhouse gas emissions. The plan, which sets a “floor” for carbon pricing, notably allows provinces to choose the method or methods by which they meet the federal pricing targets, although it would impose a tax (known as a “backstop”) on those provinces that refuse to do so or fail to meet those targets. (This carbon pricing approach, it should be noted, is enthusiastically promoted by environmentalists and the vast majority of economists as the most effective and efficient way to reduce key emissions that lead to global warming. )
The federal plan was vigorously opposed and originally challenged in court by three provinces — Alberta, Saskatchewan and Ontario — all led by conservative premiers, the first two of which are incidentally home to Canada’s oil industry. Nevertheless all three took great pains to insist that their opposition to the federal plan should not be construed as evidence that they were climate change deniers. On the contrary, they argued, the specific subject matter of this federal policy was irrelevant. Rather it was the fact that the federal government was trying to invade their jurisdiction, and impose a national plan, that they found so offensive.
Of course if the plan was found to be unconstitutional then they would not have to say that they did not want to take action of any kind, or much less invasive action than the federal government was proposing.
Put another way, like federal Conservative leader Erin O’Toole the premiers wanted to have their cake and eat it too. O’Toole, it will be recalled, told his party’s national convention just the week before the Court’s decision was announced that he believed climate change was real. But he also declared he would nevertheless continue to oppose the federal plan, which he consistently and inaccurately described as an unacceptable carbon tax. In one of the many ironies of this stance, conservatives are in fact opposing a market-based approach in favour of a panoply of regulatory and other tools of government intervention that they would normally find philosophically offensive. Such is their apparent fear of the oil industry and large industrial polluters.
But they have now lost that constitutional fig leaf of plausible denial. The majority decision penned by Chief Justice Richard Wagner was categorical. Climate change is a real and imminent threat. Provinces are incapable of responding effectively on their own, even if they were all willing to do so, which they are not. Only a national plan can hope to achieve measurable progress, and the federal government clearly has the constitutional authority to impose one.
So what will opponents of the plan do now? Some, like Saskatchewan premier Scott Moe, will immediately tweet in petulant knee jerk fashion that the federal plan is still bad law and bad policy. But his heart did not appear to be in it. Hours later the premier announced Saskatchewan would introduce its own plan for carbon pricing. This is perhaps because the same voluntary approach to reducing emissions that Moe had long promoted as an alternative is the same one that has landed the residents of his province in hot water during the Covid-19 pandemic. As a recent comprehensive study revealed, this is the province with the most lenient approach to regulation and control during the pandemic, and it is also the province with the highest per capita infection rate.[i]
The same half-hearted defiance was echoed by Ontario’s environment minister when he announced that although he was “disappointed” with the ruling he would comply. Meanwhile Alberta Premier Jason Kenney, arguably the most aggressive opponent of the federal plan, announced that he would “consult Albertans” to see what they wanted to do, offering the possibility of either following the federal plan or creating an Alberta alternative as allowed under the plan. Kenney’s position was immediately criticized by former premier and Opposition Leader Rachel Notley, who noted the government had already spent more than $1 million in legal fees opposing the plan, but apparently had not yet done any work on preparing a contingency plan for that Alberta alternative. Notley also noted that a sizeable percentage of Albertans were in fact concerned about climate change and wanted a government response, whether the federal plan or a provincial alternative.
Kenney also could not resist taking a swipe at the Court itself, suggesting that it had created a new federal jurisdictional tool. “The best we can hope for is that the Supreme Court of Canada has invented a one-time only carbon pricing exception to the constitutional order,” the premier stated. [ii] This would be the same Jason Kenney who served as a cabinet minister in the Harper Conservatives’ government for many years, during which time attacks on the Court – and ‘interventionist judges’ — were commonplace whenever a ruling displeased them.[iii]
As for Mr. O’Toole, he now appears to be isolated by his opposition to the federal plan. With the premiers set to begrudgingly comply, his only option for redress is to win the next federal election and repeal the law. But fighting an election campaign on that platform is certain disaster. What will he do now?
[i] Study released by IRPP’s Center on Excellence in the Canadian Federation, as reported by CBC News, March 20, 2021. https://www.cbc.ca/news/canada/mobility-covid-restrictions-compliance-1.5956947
[ii] Lisa Johnson. “Kenney says he’ll consult Albertans after Supreme Court decision declares carbon tax constitutional.” Edmonton Journal. March 25. 2021.
[iii] See for example https://www.theglobeandmail.com/news/politics/ottawa-notebook/minister-scolds-judges-over-delays-inconsistency-in-refugee-cases/article611725/ and https://www.abbynews.com/news/jason-kenney-criticizes-federal-judges-on-trans-mountain-pipeline-case/amp/
