Battle lines drawn over federal carbon tax plan
EDMONTON • Alberta’s opposition party is hoping to join Saskatchewan’s legal battle over the federal carbon tax, having officially sought status as an intervener in the case.
Alberta’s United Conservative Party and the Ontario government, which had previously applied to be an intervener, filed documents opposing the carbon tax on Friday. British Columbia, on the other hand, filed to be an intervener in support of the tax.
These documents provide hints of the legal lines that are being drawn in advance of a court battle that will deeply affect the future of one of Justin Trudeau’s signature policies. The case, which will determine whether the federal tax is constitutional, is scheduled to be heard by Saskatchewan’s top court in February 2019.
The UCP is arguing that if the Liberal government is allowed to impose a carbon tax on the provinces it would “fundamentally alter the balance of Canadian federalism.”
Friday was the deadline to apply to be an intervener — an interested party, not directly involved, that is granted permission to raise issues for a court to consider in its decision-making. The court will hear the applications on Dec. 12.
The federal government had previously announced that it would impose a carbon tax on any province without an emission pricing plan of its own. It’s slated to take effect in Ontario, Saskatchewan, Manitoba and New Brunswick in April 2019, and in Yukon and Nunavut in July 2019.
But Alberta already has its own carbon pricing scheme, implemented by the NDP government. Still, Jason Kenney’s conservatives have promised to repeal that plan and fight the federal carbon tax in court, should his party win the election, which will be held before the end of May 2019. Kenney has said that even if his government lost the court challenge, the federal carbon tax would be better than the NDP’s.
A spokesperson for the Alberta government defended its climate plan and criticized Kenney’s decision to waste money fighting the federal government.
Eric Adams, a law professor at the University of Alberta, said it’s “very rare” for an opposition party to get involved in the way the UCP has, and it’s possible the court will reject the UCP’s request.
If it does, other provinces are making similar arguments.
On Thursday, New Brunswick’s Tory government filed court documents seeking intervener status in the Saskatchewan reference case. The province has said it would also join Ontario’s court case, which is scheduled for spring 2019.
“When you get four or five provinces lined up, big provinces, then it improves a whole lot. And especially with the federal government going into an election year," Premier Blaine Higgs said.
Under Premier Doug Ford, Ontario scrapped the cap-and-trade system put in place by his Liberal predecessors, though on Thursday it released its own climate change plan.
The federal environment ministry said in an email that the Ontario climate plan was “light on details,” and the government is still planning to impose its carbon tax on the province.
The UCP is arguing that if the carbon tax is found to be constitutional, it will “upset the balance of federalism and the separation of powers between the federal and provincial governments in a manner that is detrimental to provincial efforts to develop policy solutions that are particular and unique to the individual provinces.”
It argues that using the peace, order and good government (POGG) clause in the Constitution for reasons “other than an emergency” requires “limited and specific subject matter,” and that regulating greenhouse gas emissions is far too broad a topic to justify the use of such sweeping government power.
“The UCP argument is tapping into an old set of concerns ... that POGG has the potential to undermine provincial jurisdiction and should be approached cautiously,” Adams said.
In its factum, Ontario argues that the carbon tax does not fall under “national concern doctrine.”
“The provinces are fully capable of regulating greenhouse gas emissions themselves, have already done so, and continue to do so,” the factum says.
B.C. argues that the POGG clause does give the government power to impose a carbon tax because of the “national dimensions” branch of the Constitution.
There are “specific, concrete harms that have been and will be faced” by B.C. because of other provinces rejecting a carbon tax, the documents say.
National Post With files from The Canadian Press and Regina Leader-Post tdawson@postmedia.com Twitter.com/tylerrdawson