Casework: The Federal Role in Carbon Pricing

CELA often intervenes in test cases to argue in support of municipal, provincial, and federal jurisdiction to act in order to protect the environment and public health. We also act on climate change because its effects will be greatest on the most vulnerable among us, whether homes or livelihoods are jeopardized with crop failures, melting permafrost, rising sea levels, horrific storms, the spread of invasive species, pathogens and insects, or unprecedented heat events.

The carbon pricing regime in the federal Greenhouse Gas Pollution Pricing Act (GGPPA) is intended to incentivize reductions in greenhouse gas emissions. However, the constitutionality of the legislation was challenged in three provincial appellate courts, and was eventually argued in the Supreme Court of Canada in September 2020. CELA’s clients were granted leave to intervene in the Supreme Court appeals, and we argued that the GGPPA can be upheld under certain federal powers (i.e. criminal law and trade/commerce).

The Supreme Court’s judgment was released in March 2021, and in a split decision, the majority of justices found that the GGPPA was constitutionally valid on the basis of the federal government’s “Peace, Order and Good Government” power in section 91 of in the Constitution Act, 1867.

Supreme Court of Canada Finds GGPPA Constitutional

March 25, 2021 – Today, in a 6-3 decision the Supreme Court of Canada finds the Greenhouse Gas Pollution Pricing Act constitutional.

EXCERPT FROM THE DECISION (read full text online):

Held (Côté J. dissenting in part and Brown and Rowe JJ. dissenting): The appeals by the Attorney General of Saskatchewan and the Attorney General of Ontario should be dismissed, and the appeal by the Attorney General of British Columbia should be allowed. The reference questions are answered in the negative.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: The GGPPA is constitutional. It sets minimum national standards of GHG price stringency to reduce GHG emissions. Parliament has jurisdiction to enact this law as a matter of national concern under the peace, order, and good government (“POGG”) clause of s. 91 of the Constitution Act, 1867 .”

February 14, 2019
Greenhouse Gas Reference in Saskatchewan Court of Appeal
Excerpted video of CELA Counsel Jacqueline Wilson and Theresa McClenaghan presenting arguments.