Premier Ford’s judicial challenge to Canada’s Greenhouse Gas Pollution Pricing Act

Apr 14th, 2019 12:42 PM

By David Estrin and Isabel Dávila Pereira

Canada has remarkably broad support from unlikely allies who agree its new law to fight climate change should be upheld, and the Ford government’s constitutional challenge rejected, when the Ontario Court of Appeal hears four days of arguments set for mid-April. Even major carbon emitters support Canada’s Greenhouse Gas Pollution Pricing Act (GGPPA). The Act took effect April 1.

It aims to ensure effective action is taken across Canada to reduce greenhouse gas emissions (GHGs) to help stop climate chaos resulting from the earth warming more than 1.5 degrees C. Canada argues its law is valid because climate change is a matter of national concern, one that affects the “Peace, Order and good Government of Canada” (POGG) referenced in s. 91 of the Constitution Act, 1867.

The Ford government’s November 2018 court filing complains that the federal law “wrongly puts a price on carbon” and asserts Ottawa lacks constitutional jurisdiction to do that. Premier Ford stated, “A carbon tax will make no difference to the environment,” and “It’s just another cash grab.”

However, in February 2019, Ontario proposed a plan to do exactly that. Despite its flip-flop, Ontario has not withdrawn its challenge to the federal law. Importantly, none of the other 16 parties in the Ontario challenge the severity of the problem as stated in Canada’s written argument: “Global climate change is an urgent threat to humanity. GHGs in the atmosphere enable global warming, causing climate change and creating national and international risks to human health and well-being.”

But there is much to be concerned about if Ontario wins, as is evident from Ford’s statements and from his government’s latest GHG “plan” that is one-third less ambitious in reducing GHG emissions than under the previous Ontario cap-and-trade law that Ford axed in 2018 as his very first order of business.

Fortunately, of the 12 non-government organizations that gained the court’s approval to intervene, 10 support Canada’s law. This diverse group includes an organization with members from some of the world’s largest carbon producers and greenhouse gas emitters, public health professionals, public utilities, several First Nations, a youth coalition, an economic policy think tank with directors and advisers that include some of Canada’s most respected independent economic experts and three of Canada’s national environmental organizations.

Their submissions pinpoint concern that continuing and future increased carbon emissions will harm Canadians’ health, well-being and future and support Canada’s position that GHG emissions are a matter of national concern. The only interveners supporting Ontario are the Alberta United Conservative Association and the Canadian Taxpayers Association. Three other provinces are also taking part: B.C., supporting Canada, with Saskatchewan and New Brunswick supporting Ontario.

Nathalie Chalifour, co-director of the University of Ottawa’s Centre for Environmental Law and Global Sustainability, eloquently points out in a recent article that the “living tree” principle of constitutional interpretation is particularly apt for the court to include in its analysis of why POGG can support the federal law: “The courts have long recognized ‘[t]he need to adapt the constitutional text to meet changing conditions in society’ and that ‘the very preservation of the constitutional order depends on this ability’. Indeed, the Constitution has embedded within it flexibility, adaptability, and a fundamental ability to change and grow with the times, reflected in the enduring metaphor of the living tree. Given that trees remove CO2 from the atmosphere, it would be apt for the metaphorical tree to do the same in supporting an interpretation of the Constitution Act, 1867 that enables a full suite of effective, mutually reinforcing climate policies across federalism. This is what climate federalism requires.”

The Canadian Environmental Law Association and Environmental Defence argue another basis to uphold the CCPPA is the Supreme Court’s 1997 Hydro-Quebec decision (R. v. Hydro-Quebec [1997] 3 S.C.R. 213) that determined Canada could validly use its criminal law jurisdiction to regulate toxic substances under the Canadian Environmental Protection Act (CEPA), because, “pollution is an ‘evil’ that Parliament can legitimately seek to suppress … [i]t is a public purpose of superordinate importance.”

CEPA has included GHGs as a regulated “toxic substance” for several years. Also important in the Supreme Court’s reasoning was that “the Constitution must be interpreted in a manner that is fully responsive to emerging realities and to the nature of the subject matter sought to be regulated.”

The “emerging realities” of climate change for Canada and the world are stark. Canada is the world’s ninth-largest GHG emitting region and one of the largest emitters in the developed world on a per capita basis. Unless Canada and other high emitting nations take effective and rapid action to reduce GHG emissions - as they committed to do under the Paris Agreement - we will all be “roasted, toasted and grilled.”

International climate science is clear: the harm will be equal or worse to that from a world war. Canada must go on a war footing to bring down GHG emissions, but only the federal government has authority to make this happen across Canada. In these circumstances it is apt for Canada to argue that the “emerging realities” of this threat and the “living tree” principle support the use of its criminal law and POGG powers to rein in GHGs and prevent climate chaos.

This is part one of a two-part series. Read part two here.

David Estrin is distinguished adjunct professor and co-director of the Environmental Justice and Sustainability Clinic, Osgoode Hall Law School at York University. He is a certified environmental law specialist with over four decades of practising, writing and teaching experience. He is the founding editor of the Canadian Environmental Law Reports and co-chaired the International Bar Association President’s Task Force on Climate Change Justice and Human Rights. Isabel Dávila Pereira is a law student in the Osgoode EJS Clinic. You can reach David Estrin at  DEstrin@osgoode.yorku.ca.