Which sword should enforce the divine law on carbon?
In Wednesday’s paper, my fellow Edmontonian Tyler Dawson gave a good short account of the arguments in the Saskatchewan litigation over Trudeau’s federal carbon tax. The reference case being brought by the province should hit the courts next month. It’s one of those tricky “double aspect” fights that arises in our evolving federation — an argument over the constitutional division of powers between two sovereign levels of government. To oversimplify matters ludicrously, Saskatchewan is basically arguing that industrial regulation has always been left to the provinces. Ottawa shoots back that taxation is its baby, and also that the whole point of a carbon tax is that it is not regulation.
I am a decent student of appellate and constitutional law, but division of powers issues give Excedrin headaches to the strongest. It is an inherently bad, un-canadian idea to step back from Canadian history and case law in disputes like this, and to consider them under pure first principles. But let’s humour each other.
If we assume that restricting carbon emissions is a good and necessary idea, does that mean that the “right” answer to the jurisdictional dispute must be that the federal government ought to be the authority that imposes a plan? The answer surely cannot be just “Yes, if the provinces refuse to go ahead in the way that nice people would like.” The premise of our system isn’t that the federal government does the most important stuff, or the most urgent, or the worthiest. The two levels have their own exclusive concerns. After all, everything any government does is supposed to be reasonably compelling and necessary.
It is a question of leaving each policy area to the most appropriate level organizationally. If you’re a strong believer in human influence on climate, you could still also logically hold the view that carbon-reducing laws should be devised and applied locally — to each province’s carbon-burning populace, in the way most appropriate to it.
The federal government has, indeed, explicitly incorporated this view into its policy. I am not sure whether this wins the argument for them or loses it. The feds’ principle is that a carbon tax is the best way to fight climate change, but they are not applying their tax to the provinces that have already created one. The carbon tax in Alberta has features and exemptions that are tailored to the Alberta economy. The federal view amounts to saying “All right, we are happy with the job you’ve done. We will only bother those provinces whose less tax-reliant policy approaches we don’t like.”
When you put things that way, the federal carbon tax does start to sound like an unconstitutional intrusion — a matter of Ottawa just substituting its judgment on environmental policy for those of the provinces, for no better reason than that it is really sure it is right.
As a factual matter, I believe that carbon taxes really are better than regulations and policing. But provincial governments could conclude that it is best for their own people to restrict carbon output by forbidding particular activities, or by regulating industry bit-by-bit, without a broad carbon tax. Strictly from the environmental standpoint, governments who make this decision — as Saskatchewan’s has — should be judged only by how successful they are at reducing the impugned emissions. Any additional expense or pain inflicted on the province itself is the province’s business.
Some subjects of legislation seem “naturally” federal in scope. The Dominion was created to provide for the common military defence of the provinces; to facilitate the building of physical infrastructure between them; and to promote interprovincial trade, although that part of the constitutional zoo isn’t fed or hosed out very well. We share a common currency because that was thought sensible in 1867, though you might get a counter-argument from some cheeky economists now if we were rebooting Confederation.
Some aspects of environmental policy “belong” to the federal government because local activity in one place might injure a neighbour: Saskatchewan can’t poison the water that flows into Manitoba, nor belch toxic smoke onto it. The link between carbon and climate is not really like this, although in their factum the feds try clumsily to attribute forest fires in B.C. to carbon outputs in Saskatchewan. Carbon action is supposedly important just because it is a universal species-wide obligation — almost a Mosaic commandment.
Accepting this does not tell you which level of government ought to enforce the heavenly directive. Education and care of the sick are moral imperatives too, and we have the provinces handle those. I am afraid much of the federal factum just seems like wasted ink. There are a zillion words devoted to factual arguments that carbon taxation is super good, which isn’t the issue. There are a zillion more words describing our participation in international anti-carbon agreements: although the federal government signed those, they could never be a pretext for an exercise of federal power that was otherwise unconstitutional.
The one strong jurisdictional point Ottawa has is that a patchwork of carbon policies might lead to economic “leakage” of emissions between provinces, raising the overall level of sin as industries seek the friendliest place to locate. I suspect this is the argument that could, or should, win the case for them. Maybe the lawyers should have devoted more than a single 73-word paragraph to it?