Alberta files arguments against carbon tax

Province to focus on jurisdiction, factum shows

OTTAWA • The Alberta government has filed legal arguments in its constitutional challenge of the federal carbon tax, arguing Ottawa should not be granted new power to regulate greenhouse-gas emissions in the provinces.

Alberta’s factum, filed in the provincial Court of Appeal on Friday, responds directly to recent decisions from appellate courts in Saskatchewan and Ontario upholding the federal Greenhouse Gas Pollution Pricing Act (GGPPA). It serves as a preview of the arguments the province intends to make at the Supreme Court, which will hear an appeal of the Saskatchewan ruling next year.

Like the other provinces fighting the federal backstop, Alberta is arguing that the carbon tax constitutes federal overreach, labelling it an “unwarranted and unprincipled intrusion into provincial jurisdiction” that “undermines the basic structure of our constitutional system.”

But Alberta’s arguments focus quite narrowly on how to interpret federal powers set out in the Constitution Act, which will be the question at play during the Supreme Court hearing.

In split decisions, appellate courts in Saskatchewan and Ontario have both upheld the federal carbon price under a section of the Constitution that allows the federal government “to make laws for the peace, order and good government of Canada” in certain cases, including issues of national concern.

Majorities on both courts found that greenhouse-gas emissions are a matter of national concern and that the federal government has the authority to establish “minimum national standards” to reduce emissions.

However, Alberta is arguing that the national concern branch of the “peace, order and good government” principle has rarely been used and that its use in this case gives the federal government sweeping new powers to regulate greenhouse-gas emissions.

“The so-called ‘minimum’ federal standards in the GGPPA are … a detailed and complex regulatory framework imposing a specific method of dealing with GHG emissions, depriving the provinces of the power to regulate GHG in a manner responsive to local needs and circumstances,” the factum reads. “Moreover, once this power to create federal GHG emissions standards is conferred, it can be used to set whatever standards the federal government deems appropriate from time to time, deeply intruding into many areas of provincial jurisdiction.”

Alberta’s factum dispenses with some of the arguments put forward by the other provinces, including Saskatchewan’s claim that the federal backstop constitutes a tax unfairly applied to some provinces and not others. Both appellate courts found the carbon tax is a regulatory charge on emissions and not a true tax. Alberta’s arguments don’t address the issue.

The province does argue that a carbon tax applied to Alberta would do little to reduce global emissions and might even increase them, because industry might move to other jurisdictions with fewer environmental regulations.

It also cautions the court against being swayed by the policy it deems most effective for reducing greenhouse-gas emissions. “Whether one or the other approach to reducing GHG emissions, or to carbon pricing specifically, is viewed as preferable, should not enter into the constitutional analysis,” the factum reads.

In a statement to the Post earlier this week, a spokesperson for Environment Minister Catherine Mckenna said provinces should “stop playing politics” and take action on climate change.

“After two appellate courts confirmed the constitutionality of our approach to pricing carbon pollution, it is irresponsible for Conservative politicians … to continue wasting taxpayers’ dollars fighting climate action in court,” said Sabrina Kim in an email.

Saskatchewan has appealed its provincial court’s decision to the Supreme Court, with a hearing initially scheduled for Dec. 5. But the province has since asked to push the hearing date into 2020, in the hopes of allowing multiple provinces’ appeals to be heard at once. Ontario has until Aug. 28 to formally seek leave to appeal to the top court.

The federal carbon tax has been applied to Ontario, Saskatchewan, Manitoba and New Brunswick, which have refused to implement their own carbon prices.