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ENVIRONMENTAL LEGISLATION - Federal legislation

Friday, August 09, 2019 @ 8:17 AM  


Lexis Advance® Quicklaw®
Reference to determine whether the Greenhouse Gas Pollution Pricing Act is unconstitutional, in whole or in part. In 2018, the Act was introduced to legislate a Pan-Canadian framework for addressing the impacts of climate change caused by global warming through a national carbon pricing and trading system, and incentives to encourage use and development of clean technologies. The Act served as backstop legislation for provinces that had yet to enact their own sufficiently stringent carbon pricing legislation. Ontario subsequently announced its withdrawal from the national carbon pricing program, revoked its cap-and-trade regulation, and prohibited trading of emissions allowances in favour of its own legislative response. Ontario submitted that the portions of the Act establishing the carbon-based fuel charge and setting out the mechanism for pricing industrial greenhouse gas emissions were unconstitutional, as they could not be supported under any federal head of power. Ontario further argued that the charges were not legislatively authorized as taxes and did not have a sufficient nexus to the purposes of the Act to be considered valid regulatory charges. Canada submitted that the Act was constitutional under the national concern branch, or alternatively, the emergency branch, of the federal Peace, Order and Good Government (POGG) provision in s. 91 of the Constitution. Canada submitted that the fuel and excess emissions charges were constitutionally valid regulatory charges which advanced the objects of the Act.

HELD: Act ruled constitutional. Parliament determined that atmospheric accumulation of greenhouse gases caused climate changes that posed an existential threat to human civilization and the global ecosystem. The impact on Canada, especially in coastal regions and in the north, was considered particularly acute. The need for a collective approach to a new matter of national concern, and the risk of non-participation by one or more provinces, led Canada to adopt legislation with the pith and substance of establishing minimum national standards to reduce greenhouse gas emissions. From a division of powers perspective, the Act fell within Parliament’s jurisdiction to legislate in relation to a single, distinct and indivisible matter of national concern under the POGG clause of the Constitution. The Act left ample scope for concurrent provincial legislation in relation to the environment, climate change and greenhouse gases, while narrowly constraining federal jurisdiction to address the risk of provincial inaction. The fuel and excess emission charges imposed by the Act were themselves constitutional. Given the purpose of behaviour modification, the charges were regulatory in nature and connected to the purposes of the Act. The charges were not in the nature of taxation. The Act was not unconstitutional in whole or in part.

Greenhouse Gas Pollution Pricing Act (Re), [2019] O.J. No. 3403, Ontario Court of Appeal, G.R. Strathy C.J.O., A. Hoy A.C.J.O., J.C. MacPherson, R.J. Sharpe and G. Huscroft JJ.A., June 28, 2019. Digest No. TLD-August52019009