Provinces join forces to challenge carbon tax

ONTARIO TO LAUNCH CONSTITUTIONAL CHALLENGE; SASKATCHEWAN REVEALS LEGAL ARGUMENTS

The shape of provincial opposition to the federal carbon tax became more clear Thursday as Ontario’s new government promised a constitutional reference challenging the policy and Saskatchewan revealed the legal arguments it plans to deploy in its efforts to assert “the right not to cooperate” with the Liberal government’s environmental policies.

Ontario Attorney General Caroline Mulroney said Thursday her province would use “any means necessary” to defeat the carbon tax, including joining legal efforts initiated by other provinces. Premier Doug Ford had previously pledged to join Saskatchewan’s reference to the federal carbon pricing plan, and in the hours after Mulroney’s announcement Saskatchewan premier Scott Moe said his province would “strongly consider joining” Ontario’s.

Meanwhile, Moe used social media to call attention to a factum — the document which lays out the legal arguments Saskatchewan will make in its case — published Thursday morning which argues Ottawa has no “constitutional authority to second guess” provincial decisions on matters in their jurisdiction, including natural resources.

The day’s sabrerattling came in the wake of an all-out scramble by the federal government Wednesday after changes to its planned subsidies for industrial heavy-emitters were widely interpreted as a sign the Liberals were in retreat over their climate plan. Some media reports described the revised subsidy levels, published July 27 but not reported on until this week, as a “softening” of the plan, a characterization disputed by economists and climate experts. After a day of negative news stories, the federal environment department organized a morning briefing to further explain the policy to reporters, only to postpone it until later in the day after Mulroney’s announcement.

The federal carbon tax won’t come into effect until January 2019, and then only in provinces that have not introduced their own systems of carbon pricing. But with a federal election slated for later that year, and with experts suggesting the provinces have little chance of defeating the carbon tax through the courts, these early skirmishes are a likely preview of the bigger political battle to come.

What Saskatchewan has undertaken, and what Ontario has also promised to initiate, is called a reference: the bill that would create the federal carbon tax “backstop,” the Greenhouse Gas Pollution Pricing Act, has not yet passed, so the two provinces are seeking a pre-emptive assessment from the courts about the bill’s constitutionality.

Saskatchewan’s factum in the matter addresses directly the legal opinion Manitoba received last fall that found “there is a strong likelihood” a provincial reference on the federal government’s right to impose a carbon tax would fail before the Supreme Court.

The Manitoba opinion — which has so far dissuaded that province from mounting a legal effort of its own — argued it would be unconstitutional only if the federal government were arbitrarily rejecting provincial climate plans and imposing its own, rather than imposing its plan only in provinces that don’t create their own carbon-pricing regime. The Saskatchewan factum quibbles with this, arguing it is unconstitutional for the federal government to override a province’s choice whatever it is — for example, a choice not to price carbon at all.

The Saskatchewan government also argues that the court should not be swayed by emotional arguments about the importance of fighting climate change. The merits of the policy, the factum says, “are not the issue.”

Saskatchewan’s argument, University of Alberta law professor Eric Adams said Thursday, is working at the fringes of Canadian constitutional law, and drawing on neither the text of the Constitution nor legal precedent but instead on ideas about what Canada should be, and which levels of government should have what powers.

The factum argues, in Adams’s view, not only that it’s not within the federal government’s jurisdiction to impose a carbon tax, and not only that it is within Saskatchewan’s jurisdiction, but that the Liberals’ plan is contrary to the principles of Canadian federalism.

“Whenever you’re entering the realm of novel constitutional arguments, there’s a degree of uncertainty involved in whether or not the court’s interested in buying any of what’s being sold,” Adams said. “There are lots of strong arguments that the federal government has this jurisdiction, so if you’re trying to wage a constitutional battle, you’ve got to reach for the fences a bit in trying to fashion that argument. Now sometimes those kinds of novel claims can succeed, but more often than not, it’s likely that they encounter difficulty.”

The federal government has not made public its planned arguments against the provincial challenges. On Thursday evening, a statement from environment minister Catherine McKenna took a shot at Ontario’s announcement — and the federal Tories — saying “in 2018, if you don’t have a climate plan, you don’t have a plan to grow the economy. Our kids and grandkids deserve better.”

The question now shifts to the other provinces and territories, many of whom have expressed varying degrees of dissatisfaction with the federal climate plan. Alberta’s opposition United Conservative Party has indicated

NOW SOMETIMES THOSE KINDS OF NOVEL CLAIMS CAN SUCCEED.

it will seek intervener status in Saskatchewan’s reference and, if it wins government in the election expected in that province next spring, will formally join the fight, said party spokeswoman Annie Dormuth.

Under leader Jason Kenney the UCP has vigorously opposed Alberta’s existing carbon tax and, said Dormuth’s emailed statement, supports fighting the “carbon tax, both through the courts and with political means. We are particularly encouraged by growing opposition to the carbon tax amongst the provinces.”

If the UCP defeats Premier Rachel Notley’s NDP, Kenney has promised to scrap the provincial carbon tax as his government’s first act. Ottawa could then impose its own carbon tax — and that’s where Alberta could become involved in its own legal battle.

But, says Adams, it’s likely that by then, one of the other cases — either in Ontario or Saskatchewan — would by then have reached the Supreme Court, where the legal question, if not the political one, can be answered once and for all.