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ENVIRONMENTAL LEGISLATION - Federal legislation - Environmental protection - Pollution control legislation 

Thursday, March 25, 2021 @ 5:01 PM  


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Appeal by Saskatchewan and Ontario from decisions of their respective courts of appeal holding that the Greenhouse Gas Pollution Pricing Act (GGPPA) was constitutional. Appeal by British Columbia from a decision of the Alberta Court of Appeal holding that the GGPPA was unconstitutional. The GGPPA was enacted by Parliament in 2018. Part 1 established a fuel charge that applied to producers, distributors and importers of various types of carbon-based fuel. Part 2 set out a pricing mechanism for industrial greenhouse gas (GHG) emissions by large emissions-intensive industrial facilities. The reference question in each of the appeals was whether the first two parts and the four schedules of the GGPPA were unconstitutional. The GHG pricing mechanism only applied to a province or territory if the Governor in Council determined that its GHG pricing mechanism was insufficiently stringent. The Courts of Appeal of Saskatchewan and Ontario held that the GGPPA was intra vires Parliament on the basis of the national concern doctrine while the Alberta Court of Appeal found the GGPPA was unconstitutional on the basis that the national concern doctrine had no application.

HELD: Appeal by Saskatchewan and Ontario dismissed; appeal by British Columbia allowed. The true subject matter of the GGPPA was establishing minimum national standards of GHG price stringency to reduce GHG emissions. The legal effects of the GGPPA confirmed its focus on national GHG pricing and its essentially backstop nature. The GGPPA was constitutional. Parliament had jurisdiction to enact the law as a matter of national concern under the peace, order and good government clause of s. 91 of the Constitution Act. Establishing minimum national standards of GHG price stringency to reduce GHG emissions was of sufficient concern to Canada as a whole that it warranted consideration in accordance with the national concern doctrine. The minimum national standards of GHG price stringency implemented by the GGPPA related to a federal role in carbon pricing that was qualitatively different from matters of provincial concern. The provinces, acting alone or together, were constitutionally incapable of establishing minimum national standards of GHG price stringency to reduce GHG emissions. A failure to include one province in the scheme would jeopardize its success in the rest of Canada. A province’s failure to act would have grave consequences for extraprovincial interests. The GGPPA’s impact on the provinces’ freedom to legislate and on areas of provincial life that fell under provincial heads of power was qualified and limited. The provinces were free to design any GHG pricing system they chose as long as they met the federal government’s outcome-based targets. The fuel and excess emission charges imposed by the GGPPA had a sufficient nexus with the regulatory scheme to be considered constitutionally valid regulatory charges. Dissenting reasons were provided.

Reference re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., March 25, 2021, Digest No. TLD-March222021011