On­tario chal­lenges fed­eral car­bon tax

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On­tario is launch­ing a le­gal fight against the fed­eral govern­ment’s plan to im­pose car­bon taxes on prov­inces that don’t al­ready have them, fol­low­ing a case Saskatchewan filed ear­lier this year.“Our govern­ment will be launch­ing our own chal­lenge of the Trudeau Lib­eral car­bon tax at the On­tario Court of Ap­peal,” At­tor­ney Gen­eral Caro­line Mul­roney said in a Thurs­day news con­fer­ence with En­vi­ron­ment Min­is­ter Rod Phillips. In fact, she later clar­i­fied, it had al­ready filed pa­per­work. The PCs pledged that they’d do this in the last elec­tion cam­paign. “Prom­ise made, prom­ise kept,” Mul­roney said.The le­gal cause is iffy at best, but fight­ing over car­bon taxes will last at least un­til the next fed­eral elec­tion. Saskatchewan and Al­berta are ar­gu­ing the fed­eral govern­ment doesn’t have the right to de­cide whether each prov­ince’s plan to re­duce green­house-gas emis­sions is good enough, which is what the Green­house Gas Pol­lu­tion Pric­ing Act pro­posed by PM Justin Trudeau would do.The fed­eral law, which has been put out in draft form but not in­tro­duced as a bill yet, would put a fed­eral tax on fu­els and charge busi­nesses with a lot of in­dus­trial emis­sions, but only in prov­inces that don’t do some­thing along those lines them­selves. The fed­eral govern­ment would re­turn the pro­ceeds to the prov­inces.The feds call it a “back­stop.” On­tario and Saskatchewan call it an il­le­gal in­tru­sion into their busi­ness.Both prov­inces are us­ing an un­usual le­gal tool called a “ref­er­ence,” ask­ing their top pro­vin­cial courts to rule on whether the Green­house Gas Pol­lu­tion Pric­ing Act would be con­sti­tu­tional be­fore it’s ac­tu­ally passed.Saskatchewan’s con­ser­va­tive govern­ment sub­mit­ted its ref­er­ence last April, and On­tario is also ap­ply­ing to make ar­gu­ments when the Saskatchewan case is heard.The prov­inces and fed­eral govern­ment share ju­ris­dic­tion over the en­vi­ron­ment — un­like, say, de­fence, which is ex­clu­sively fed­eral, or ed­u­ca­tion, which is ex­clu­sively pro­vin­cial. Both can make laws and rules to pro­tect the en­vi­ron­ment, and both can charge taxes.The fed­eral govern­ment says the Green­house Gas Pol­lu­tion Pric­ing Act is an ex­am­ple of “co-op­er­a­tive fed­er­al­ism,” where the fed­eral govern­ment has a na­tional goal of re­duc­ing car­bon emis­sions but gives pro­vin­cial gov­ern­ments a lot of room to de­cide what they’ll do about it.Al­berta and Bri­tish Columbia have car­bon taxes, and those are fine as far as the feds are con­cerned; un­til this month, On­tario had a cap-and-trade market in emis­sions per­mits, and that was cool, too. It’s only if a prov­ince does ba­si­cally noth­ing that the fed­eral govern­ment will step in.Saskatchewan’s de­tailed le­gal ar­gu­ment, which it filed to sup­port its case ear­lier this week, says that’s the op­po­site of co­op­er­a­tive fed­er­al­ism.“There will, quite sim­ply, be no need for co-op­er­a­tive fed­er­al­ism if the fed­eral govern­ment can uni­lat­er­ally pur­sue its pol­icy ob­jec­tives with re­spect to mat­ters fall­ing within pro­vin­cial ju­ris­dic­tion with­out the need for the will­ing and vol­un­tary par­tic­i­pa­tion of the prov­inces,” Saskatchewan says. “Co-op­er­a­tive fed­er­al­ism” should in­clude the right for a prov­ince to not co-op­er­ate, if that what its peo­ple want.Le­gal ex­perts don’t seem to think this will work.Man­i­toba’s govern­ment, also run by Pro­gres­sive Conservatives, com­mis­sioned a le­gal assess­ment that con­cluded in 2017 that the Supreme Court of Canada won’t likely buy the ar­gu­ment the dis­sent­ing prov­inces are mak­ing.The fed­eral govern­ment can tax things, and, “The mere fact that fed­eral leg­is­la­tion will be in­ac­tive in com­pli­ant prov­inces would not by it­self make the law un­con­sti­tu­tional,” Man­i­toba’s lawyers told their bosses.What these cases can do, though, is drag out the dis­cus­sion. If the Saskatchewan and On­tario courts give the prov­inces an­swers they don’t like, they can ap­peal to the Supreme Court. Which will all but have to get in­volved if two pro­vin­cial ap­peals courts have opin­ions on the same fed­eral leg­is­la­tion that dif­fer even the teen­si­est bit.Be­cause ref­er­ences just in­volve le­gal ar­gu­ments with­out tri­als and ev­i­dence, they can move pretty quickly, by court-case stan­dards.We’re still talk­ing about many months to over a year. First provin­cially, then at the Supreme Court. All the while talk­ing about Trudeau-car­bon-tax-Trudeau­car­bon-tax-Trudeau-car­bon-tax, into the next fed­eral elec­tion in 2019 and maybe be­yond.A car­bon tax “in­vites eco­nomic catas­tro­phe,” Phillips said, and any­way car­bon taxes don’t work.Which is a weird po­si­tion for sup­posed conservatives such as him and Mul­roney to take — that prices don’t af­fect peo­ple’s choices.Even weirder from two min­is­ters who both signed up as On­tario Pro­gres­sive Con­ser­va­tive can­di­dates when pric­ing car­bon was party pol­icy. But pol­i­tics is pol­i­tics.Com­bine the car­bon-tax case with their pur­suit of the feds over the costs of sup­port­ing refugee claimants (or, as the prov­ince al­ways calls them, “il­le­gal bor­der crossers”) and the Pro­gres­sive Conservatives are set­ting On­tario up as the ma­jor in­sti­tu­tional op­po­si­tion to the fed­eral Lib­er­als.An­drew Scheer and the fed­eral Tories can crit­i­cize. Doug Ford and the On­tario Tories can do things.“Our mes­sage to the prime min­is­ter is that it’s never too late to do the right thing,” Phillips said.“Prime min­is­ter, can­cel your car­bon tax. Put On­tario fam­i­lies and On­tario busi­nesses first.”

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