Casework: The Federal Role in Carbon Pricing

CELA has often intervened in cases to argue in support of municipal, provincial, and federal jurisdiction to act in order to protect the environment. 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 Greenhouse Gas Pollution Pricing Act was challenged in various provincial courts and goes to the Supreme Court of Canada in the fall of 2020. CELA argues that this law falls under the criminal law head of power in the Canadian constitution.  It aims to reduce emissions of greenhouse gases in Canada and contains various prohibitions on industrial emissions, or sale of fuels, unless polluters register and pay charges, with penalties to ensure compliance. Criminal law is one head of power that justifies federal action when the intent of Parliament is to address an “evil” – prior such cases have dealt with firearms registration, cigarette packaging, and toxic substances under the Canadian Environmental Protection Act.

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.