Supreme Court to Rule on Federal Role in Pricing Carbon

by Joseph Castrilli

Appeals by Saskatchewan, Ontario, and British Columbia on the constitutionality of the federal Greenhouse Gas Pollution Pricing Act (GGPPA) were heard by the Supreme Court of Canada earlier this month.

The GGPPA‘s constitutionality had been upheld in separate reference opinions by appellate courts in Saskatchewan and Ontario on the basis of the national concern doctrine under section 91 of the Constitution’s peace, order and good government clause. But Alberta’s highest court found the GGPPA unconstitutional earlier this year in a reference opinion that prompted British Columbia’s appeal to the Supreme Court.

The challenge to the GGPPA is crucial for CELA clients because climate change is, at its core, an equity issue. Low-income and vulnerable communities are disproportionately impacted by climate change, despite being the least responsible for it. CELA lawyers, representing environmental and faith organizations, had intervened in the Saskatchewan and Ontario appellate courts and again before the Supreme Court in support of the GGPPA‘s constitutionality on the basis of the criminal law power. Our argument would protect the jurisdiction of both levels of government to act on climate change.

Besides the main parties in the appeals, the attorneys general for Saskatchewan, Ontario and Alberta who opposed the GGPPA‘s constitutionality, and the attorneys general for Canada and British Columbia, who supported the GGPPA‘s constitutionality, the case attracted interventions from three other attorneys general (Quebec, New Brunswick, and Manitoba), and approximately two dozen indigenous organizations, environmental, health, labour, youth, and taxpayer groups, municipalities, provincial crown corporations, and others.

The Supreme Court reserved its judgment on the appeals, which is not expected to be released for several months.