On May 3, 2019, the Saskatchewan Court of Appeal issued its opinion on the constitutionality of the federal government’s carbon-pricing framework. A 3-2 majority of the court agreed that Ottawa can impose a gradually rising floor price on greenhouse gas emissions across the country, confirming the consensus view of Canada’s legal experts. While the court’s opinion is only an advisory one and is confined to Saskatchewan (the Ontario Court of Appeal’s decision is next, and Saskatchewan has already filed leave to appeal to the Supreme Court of Canada), its recognition of climate change as a major threat requiring urgent political action is welcome.
Below, project team member Nathalie Chalifour succinctly outlines her top ten takeaways from the decision (originally posted to Twitter, and reproduced here):
The Court recognized the gravity of the issue: “…climate change caused by anthropogenic greenhouse gas (GHG) emissions is one of the great existential issues of our time.” (para 4)
The Court acknowledged that the threat is global: “…climate change has emerged as a major threat, not just to Canada, but to the planet itself.” (para 144)
The Court agreed that climate change is an emergency: “Climate change is doubtless an emergency in the sense that it presents a genuine threat to Canada.” (para 202)
The Court accepted and relied upon the findings of the IPCC, citing basic facts about climate change and its impacts from the last assessment report (para 16).
The Court recognized that carbon pricing is an essential element of the global effort to limit GHG emissions, citing widespread international consensus and experts like Nic Rivers (Associate Professor, Graduate School of Public and International Affairs, Faculty of Social Sciences and Canada Research Chair in Climate and Energy Policy at the University of Ottawa) in support of carbon pricing as a necessary and effective GHG mitigation measure (para 147).
The Court recognized the transboundary nature of GHG emissions and the need for national approach: “... GHG emissions do not respect provincial boundaries. As a result, the failure of one province to take action in respect of such emissions will have impacts on other provinces.” (para 154)
The Court recognized Canada cannot meet Paris targets “if not all provincial jurisdictions are prepared to implement GHG emissions pricing regimes – regimes that, on the basis of the record before the Court, are an essential aspect of successful GHG mitigation plans.” (para 156)
The Constitution is to be interpreted flexibly: “If it is necessary to apply established doctrine ... to ensure both levels of government have the tools essential for dealing with something as pressing as climate change, that would seem to be entirely appropriate.” (para 144)
It is not a tax: “the levies imposed by the Act are regulatory charges, not taxes.” (para 9) “It is difficult to see how the Act, which is ultimately wholly disinterested in generating revenue, can... be seen as a law with a primary purpose of raising revenue....” (para 87)
Last but not least, the Court's decision is “in keeping with what the Supreme Court has said about the utility of, where possible, allowing both Parliament and the provincial legislatures jurisdictional room to act in relation to the environment.” (para 144)
In other words, there is ample jurisdictional space for climate policies at the federal and provincial levels. It is time to get on with it, and stop fiddling while Rome burns (or Ottawa floods).