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A missed opportunity?

By narrowly framing carbon pricing as a matter of national concern, the SCC takes great pains to balance provincial and federal legislative powers. Critics say it could have done more.

air pollution

There's a lot to unpack in the Supreme Court of Canada's latest reference ruling – a lengthy judgment that dissects whether carbon pricing is a matter of national concern within Ottawa's power to legislate in respect of peace, order and good government.


A 6-3 majority held that it clearly is. And while few court observers would characterize the decision as ground-breaking in a strictly legal sense, it is significant that the Greenhouse Gas Pollution Pricing Act – or GGPPA – has survived a challenge by Alberta, Ontario and Saskatchewan. 


"I think that the SCC upheld the legislation as constitutional surprised precisely no one," says Kerri Froc, a University of New Brunswick law professor. But the ruling shows the top court "is willing to return to a more muscular conception of federal power, perhaps generally, but particularly to address a diffuse and intractable problem that is highly unlikely to be addressed via provincial cooperation in the near future, if ever." 


And that, fundamentally, is the central message from the majority: "No one province, territory or country can address the issue of climate change on its own," wrote Chief Justice Richard Wagner. "Addressing climate change requires collective national and international action. This is because the harmful effects of GHGs are, by their very nature, not confined by borders."


Canada is a large federal country with unevenly distributed populations and a complicated energy profile. "The interests of carbon-producing provinces in the West are entirely at odds with provinces that are most likely to be impacted by climate change (e.g. Atlantic Canada)," said Froc. "And the area already most affected by climate change, the North, has the least political power in Confederation to protect their region. And without federal intervention, it is to the detriment of all of us long term."


Not everyone is thrilled with the new carbon pricing power. Saskatchewan Premier Scott Moe called carbon pricing "a blunt, ineffective instrument that kills job[s]." Alberta Premier Jason Kenney highlighted the three dissenting opinions from Justices Côté, Brown and Rowe, "validating our position." Manitoba Premier Brian Pallister has promised to forge ahead with a separate legal challenge of the federal legislation.


Too far, or not far enough?


Jason MacLean, an environmental law professor at the University of New Brunswick, worries that the majority's decision will "prove to be very short-sighted." He gives the court credit for clarifying the national concern test under the POGG power. But it acted too cautiously, he says, by putting "Canadian federal climate policy into a really narrow box."


By identifying the pith and substance as "the establishment of minimum national standards of price stringency for GHG emissions" – effectively handing Parliament a new power – the court went too far in trying to appease critics of federal intrusion into areas of provincial jurisdiction. "What they should have done is define the new matter more broadly as 'regulating greenhouse gas emissions nationally,'" said MacLean. "Because that's still an extra-provincial matter, and beyond the ability of one province or all the provinces acting together. You still have to satisfy the specific legal test."


That test is threefold. First, the federal government has to "establish that the matter is of sufficient concern to the country as a whole to warrant consideration as a possible matter of national concern." The matter must possess the "singleness, distinctiveness and indivisibility" that distinctly sets it apart from matters of provincial concern. Only then will the court examine the "scale of impact of the proposed matter" to reconcile it with the division of powers.


"Yes, they could have gone bigger," Froc acknowledges, "but it's a doctrine with a lot of moving pieces. It may have meant that a broader matter may not have fit the test." Perhaps the court have done more with the "newness" of the problem which GGPPA addresses, "rather than doing away with it entirely," says Froc. It could have incorporated that analysis" into the threshold question as a means to recognize problems that have grown to threaten the practical viability of the nation as being appropriately designated national concern."


"That would have constrained the doctrine further, but would still have allowed a broader matter to be addressed as a national concern."


Broadening the matter to regulating climate change is easier said than done, according to Martin Olszynski, an associate law professor at the University of Calgary. "Throw in the case law that says that you should characterize the law as precisely as possible, and it gets hard to drop the pricing aspect from the equation. The GGPPA is exclusively about pricing."


In other words, the feds could have swung a little harder for the fences, though with no guarantee of success. "It may be the case that, if the GGPPA were not so restricted – if it had provisions for setting other standards – then that might have made its way into characterization," says Olszynski. "But I think it's an open question – and perhaps even doubtful – that it would have survived the subsequent three-step framework."


"[T]here is a clear tension between comprehensive environmental policy and the division of powers. In privileging one, many are prepared to completely disregard the other (and that goes both ways to be clear)," Olszynski added in an email. "The courts have tended to want to strike a balance, and though imperfect, that's probably as it should be."


If anything, the ruling offers some promise that federalism isn't necessarily a barrier to fighting climate change. Indeed, Parliament can also legislate on the climate using its criminal law and taxation powers. "I would say that Canada has the constitutional levers that it needs to tackle climate change in an effective and flexible way that recognizes the intricacies of the problem." 


What's more, he says, defining the matter narrowly has the merit of creating space for the provinces to act within their powers to fight climate change.   


MacLean is less confident. "They didn't leave room to create a constitutional underpinning for increased federal action on climate change, which is what we're going to need," he says. "I think in a few years, we may live to regret this."


Joining a global effort


No one will accuse the Supreme Court of committing poetry in defining the new matter, which focuses on the means more than the end itself of fighting climate change. "Minimum standards of greenhouse gas price stringency" doesn't exactly roll off the tongue.


But the decision is still significant in that it "normalizes carbon pricing" as a measure to fight GHG emissions, says Olszynski, who adds that the court tips its hat to notable climate decisions from other jurisdictions. Among them is the Urgenda ruling, in which the Supreme Court of the Netherlands found its government to have acted unlawfully in taking insufficient action to prevent dangerous climate change. The court also cited Massachusetts v. Environmental Protection Agency, in which the U.S. Supreme Court ruled that states could sue the American Environmental Protection Agency for potential damages caused by global warming.


All those cases recognize that "climate change is caused by cumulative emissions from a myriad of individual sources," writes Chief Justice Richard Wagner to emphasize his point that "[e]ach province's emissions are clearly measurable and contribute to climate change."


"As a global problem, climate change can realistically be addressed only through international efforts," he goes on to write. "Any province's failure to act threatens Canada's ability to meet its international obligations to reduce GHG emissions. Therefore, a provincial failure to act directly threatens Canada as a whole."


It wouldn't be the first time the top court cites foreign decisions. But bringing up Urgenda and Massachusetts v. EPA is encouraging to those who have placed their faith in litigation as a means of reshaping global responses to the threat of climate change. "Courts worldwide are going to face more and more climate litigation that challenges them to make sense of a complex global problem in legal terms," says professor Jocelyn Stacey of the Peter A. Allard School of Law. "It's good to see the SCC joining other prominent decisions by rejecting parties' arguments that ask the courts to shy away from the complexity of the problem."


As for the three dissenting opinions, Olszynski points out that the justices couldn't even agree on what they were dissenting about. “I think it just gives additional strength to the majority judgment.”


Many skeptics remain. "This idea that climate litigation around the world is succeeding or that it has the capacity to succeed is a misguided idea," says Jason MacLean. "Are the Netherlands on track to meet their 2030 Paris agreement target? No. So the impact on the ground has been negligible. Just like Massachusetts v EPA from 2007, it really didn't have any impact on policy because climate policy is still driven by politics. The courts remain very limited in what they can actually do."


"Lawyers have a terrible tendency to just look at the judgment on paper but without actually tracking their enforcement," MacLean adds.


But the nod to other courts is significant, says Olszynski, particularly as the world is watching. "And for all the false equivalences that the left sometimes likes to throw at Liberals for not doing enough on climate, Canada is still at the forefront of carbon policy and pricing."