On June 28, 2019, the Ontario Court of Appeal issued its opinion on the constitutionality of the Greenhouse Gas Pollution Pricing Act (i.e. the federal government’s carbon-pricing framework).
Like with the recent Saskatchewan Court of Appeal decision, project team member Nathalie Chalifour has succinctly outlined her top ten takeaways from the decision (originally posted to Twitter, and reproduced here):
In a 4:1 decision, the ONCA joins the SKCA in upholding the GGPPA under the National Concern branch of POGG (para 3). Even dissent notes his opinion “…does not mean that Parliament is powerless to address climate change”, but that federal laws would be better as tax or criminal law. (para 240)
The Court recognized the gravity of climate change, citing WHO’s estimate that “…climate change is currently causing the deaths of 150,000 people worldwide each year” and that “rising sea levels threaten the safety and lives of tens of millions of people in vulnerable regions.” (para 15)
The Court also pointed to this as being a very real and serious Canadian problem, citing the evidence that Canada is warming “at roughly double the global average rate” and that already, “Canada has been disproportionately impacted by global warming.” (para 10)
The Court underscored the disproportionate impact of climate change on Indigenous groups: “Climate change has had a particularly serious impact on some Indigenous communities in Canada” because of “traditionally close relationship between Indigenous peoples and the land and waters on which they live.” (para 12)
The Court linked climate change to extreme weather in Canada like droughts, floods, wildfires, and heatwaves, and slow-onset events like thawing permafrost and rising sea levels. It referenced: “major wildfires in Alberta and British Columbia in 2017 and 2018" and floods in Ontario & Quebec. (para 11)
The Court noted the “...need for a collective approach” (para 4), since “The entire country experiences the effects of climate change and every province and territory is affected by the failure of others to reduce their own GHG emissions.” (para 21)
(a) The Court understood the inherent unfairness of “…provinces and territories that have very low emissions," yet “often experience impacts of climate change that are grossly disproportionate to their individual contributions to Canada’s total GHG emissions.” (para 17)
(b) ... and yet “…there is nothing these provinces and territories can do to address the emissions of GHGs by their geographic neighbours and constitutional partners.” (para 20) (hence the need for a national approach)
The Court noted its decision does not preclude provinces from acting: the law “…leaves ample scope for provincial legislation in relation to the environment, climate change and GHGs, while narrowly constraining federal jurisdiction to address the risk of provincial inaction.” (para 4)
Like in an earlier SCC case upholding federal law over National Capital region under POGG, the Court found efforts made to negotiate intergovernmental solution through the Pan Canadian Framework relevant, noting it is “a factor to be considered in assessing the national nature of the concern.” (para 108)
(a) This result is what one expects from a federation that wishes to address climate change: “The Act strikes an appropriate balance between Parliament and provincial legislatures, having regard to the critical importance of the issue of climate change caused by GHG emissions,”
(b) ...”the need to address it by collective action, both nationally and internationally, and the practical inability of even a majority of the provinces to address collectively.” (para 134)
The most important takeaway for the Ontario government is this: Stop wasting time, energy, and resources fighting against climate laws, and start being responsible and taking serious action to reduce GHG emissions. It's time to start acting like grownups.