SCC must decide this question, says the C. D. Howe Institute
The Supreme Court of Canada must take a stand on the constitutional question of whether greenhouse gases can be considered a national concern falling within the scope of the “peace, order and good government” constitutional power held by the federal Parliament, a national thinktank has urged.
In “Living Tree or Invasive Species? Critical Questions for the Constitutionality of Federal Carbon Pricing”, released by the C. D. Howe Institute on Dec. 5, associate director of research Grant Bishop wrote that in light of the pending appeals by the Ontario and Saskatchewan governments, the Supreme Court should take this opportunity to delineate the federal and provincial division of powers in relation to the regulation of greenhouse gases.
The Ontario and Saskatchewan courts of appeal both previously upheld the constitutionality of the Greenhouse Gas Pollution Pricing Act (GGPPA), which permits the national government, under the “polluter pays” principle, to establish a greenhouse gas emissions pricing scheme in provinces and territories that lack compliant measures. The two provincial governments are now challenging these decisions.
Bishop, who is based in Calgary, Alta., describes the decisions of the provincial courts of appeal as “policy-driven contortions of constitutional law to enable both federal and provincial governments to concurrently price carbon.”
The report further notes that although the provincial appellate courts had sustained the constitutionality of the GGPPA, they did not go so far as to define what a “national concern” was, nor did they rule upon whether the national government had exclusive jurisdiction over greenhouse gas regulation.
Instead, in rationalizing their decisions, the provincial courts of appeal relied upon the “minimum national standards” approach, which the Institute criticized as something that could “undermine the exclusive federal jurisdiction for other national concerns like aeronautics, radio communications and nuclear power.”
The report argues that, while policy research supports the pricing of greenhouse gas emissions as an efficient measure to minimize the impact of climate change, the Supreme Court still has the responsibility to properly address these constitutional issues, to decide once and for all how and by whom emissions should be regulated.
“Because carbon pricing is good policy does not mean courts should contort Canada’s constitutional architecture,” Bishop said in a media release by the C.D. Howe Institute announcing the publication of the 28-page report.
“Even if greenhouse gases are a national concern, activity-level regulations like the output-based pricing system should arguably be outside of federal jurisdiction. However, if the Supreme Court finds greenhouse gases represent a national concern, the federal government would have exclusive jurisdiction over that subject matter, displacing provincial jurisdiction.”
