Divided Supreme Court of Canada Finds Greenhouse Gas Pollution Pricing Act Constitutional
The court's decision marks the endpoint for the primary legal challenges mounted by Saskatchewan, Ontario, and Alberta, which had argued that the provinces should have the power to individually regulate greenhouse-gas emissions within their borders and to adopt their own strategies for meeting the challenges posed by climate change.
In a split 6–3 decision, the Supreme Court of Canada found the federal Greenhouse Gas Pollution Pricing Act (GGPPA) to be constitutional. The court's decision marks the endpoint for the primary legal challenges mounted by Saskatchewan, Ontario, and Alberta, which had argued that the provinces should have the power to individually regulate greenhouse-gas (GHG) emissions within their borders and to adopt their own strategies for meeting the challenges posed by climate change. The court's decision will have significant and widespread implications for future legislation, regulation, and taxation of GHG emissions, as well as our country's constitutional framework, and may open the door to future challenges to the GGPPA's implementation.
Writing for the majority, Chief Justice Richard Wagner held that the GGPPA was a valid exercise of Parliament's constitutional jurisdiction under the national concern branch of the Peace Order and Good Government (POGG) power, an important but rarely invoked grant of authority derived from the preamble to Section 91 of the Constitution Act, 1867. The chief justice took this opportunity to clarify the test for the national concern branch, which had not been addressed by the court since Crown Zellerbach more than 30 years ago.
The chief justice characterized the subject matter of the GGPPA (its “pith and substance”) as the “establishing of minimum national standards of GHG price stringency to reduce GHG emissions.” This characterization was an endorsement of the narrow approach advanced by British Columbia and adopted by certain justices of both the Saskatchewan and Ontario Courts of Appeal. It was also a rejection of the broader approach to characterization of the GGPPA adopted by the majorities of the Alberta and Ontario Courts of Appeal, which could have led to a recognition of more sweeping federal powers over GHG emissions if found constitutional.
Fashioning and then applying a new three-part test for the national concern branch, the chief justice classified the pith and substance of the GGPPA as falling within Parliament's POGG power when limited as such. According to the chief justice, the subject matter of the act was of sufficient concern to the country to warrant consideration as a possible matter of national concern; the subject matter of the act passed the “single, distinct, and indivisibility” analysis, taking into account the provinces' inability to address the matter as a whole through cooperation due to the risk of carbon leakage; and the impact of the proposed subject matter of national concern was reconcilable with the constitutional division of powers in this country. The notion of “cooperative federalism,” which has animated successful provincial assertions of regulatory jurisdiction over federal undertakings, also loomed large in this analysis.