Court likely to uphold price on carbon: expert
Lawyer says there’s little chance of winning challenge against feds
A lawsuit aimed at stopping the federal government from imposing a nationwide price on carbon — like the one proposed by Saskatchewan Premier Brad Wall and some of those vying to replace him — would be unlikely to succeed, according to an independent legal opinion commissioned by the Manitoba government.
The Supreme Court of Canada can always depart from earlier precedents, but there is a “strong likelihood” it would uphold the proposed price on carbon, probably based on the federal government’s broad taxation powers, Winnipeg-based lawyer Bryan P. Schwartz said in the 64-page legal opinion released this week.
“The Supreme Court of Canada is wary of allowing the division of powers between the federal and provincial levels of government to stand in the way of activist government, including in the subject matter of the environment,” Schwartz said in the document, which cost Manitoba’s progressive conservative government about $40,000.
Wall has been one of the federal plan’s most outspoken critics, arguing that it is constitutionally dubious and likely to cause significant harm to Saskatchewan’s carbon-centric economy, which can little afford new taxes as it recovers from a collapse in natural resource prices.
He has said a potential legal challenge would concentrate on Ottawa overstepping its authority.
“I’m going to continue to fight this fight. I’m not sure how much company we’ll have, and I don’t really care,” Wall said at the time. Three months later, he added: “When it comes to taxation that’s meant to generate revenue versus taxation that’s meant to regulate or change behaviour, these are two different things … We think there are options, and if need be we will take the federal government to court.”
Wall was not available for an interview on Thursday.
Ministry of Justice spokesman Drew Wilby said in a statement that the Saskatchewan government will study the opinion closely but will not comment further on its plans “as that work is confidential and is being done with a view to a possible constitutional challenge to the federal carbon backstop proposal.”
Prime Minister Justin Trudeau’s Liberal government announced in October 2016 that it will impose a price on carbon beginning next year with a “floor price” of $10 per tonne of greenhouse gas emissions, rising to $50 per tonne by 2022. The federal government has also said it will impose a “backstop” price on any province that does not develop its own carbon pricing scheme.
Schwartz said he would not comment beyond his written opinion. In the document, he wrote that the provinces could argue that the federal backstop infringes their rights to develop their own carbon taxes as the federal government is not free to legislate on the environment in any way it chooses. That argument, is untested but credible, he wrote.
Manitoba Premier Brian Pallister accepted Schwartz’s opinion and said that while it appears the federal government has the right to force a carbon tax on the provinces, Schwartz’s argument suggests there may be some wiggle room when it comes to the exact amount. A document obtained last month by the Canadian Press said the province was eyeing a $25-pertonne carbon levy. Pallister refused to confirm the amount.
“I can’t comment on leaked documents. We’ll put out our plan when it’s put out and it’ll be one that will work better for Manitoba than the federal plan,” he said.
Manitoba Justice Minister Heather Stefanson said in a statement that Schwartz’s opinion is clear, and that “Manitobans will soon be asked to consider a choice between an imposed ‘made-in-Ottawa’ plan with high carbon taxes and federal spending of Manitoba-raised revenue, or a ‘made-in-Manitoba’ climate and green plan that fits Manitoba’s needs and priorities.”
Wall announced his planned retirement in early August. He is expected to resign as the MLA for Swift Current after the Saskatchewan Party chooses a new leader, who will inherit the premiership, in January.
We’ll put out our plan when it’s put out and it’ll be one that will work better for Manitoba than the federal plan.