In a 6-3 decision on March 25, the Supreme Court of Canada ruled that the federal government’s price on carbon pollution is constitutional, two years after three provinces first launched a legal fight to maintain full control over their natural resources.
On June 21, 2018, Canada’s federal government set the Greenhouse Gas Pollution Pricing Act, otherwise known as the carbon tax, into law. This legislation aims to mitigate climate change by putting a price on greenhouse gas pollution.
In practice, it means businesses that produce or distribute fuel have to pay a certain price for each tonne of carbon dioxide they emit by burning fossil fuels. Provincial and territorial governments determine specific prices, as long as the numbers meet federal standards.
In 2019, three Conservative provincial governments—Saskatchewan, Ontario, and Alberta—took the federal government to court over the constitutionality of a carbon tax. They argued that because natural resources fall under provincial jurisdiction in the Canadian constitution, the federal government shouldn’t be able to interfere by imposing a tax.
Last Thursday, the Supreme Court released its decision in favour of the federal government. It formally agreed that climate change poses a great enough threat to Canadians that it demands national interference.
The decision is a win for environmental groups like the Youth Climate Lab and Climate Action Network Canada, but representatives for these organizations say there’s much more work to be done before the country gets on track to reducing its total emissions.
How did climate groups react to the decision?
In the aftermath of the Supreme Court’s Thursday decision, climate activists around the country shared their joy at the positive outcome of this years-long legal process. Catherine Abreu, executive director of Climate Action Network Canada, was among them.
“Our immediate reaction was one of celebration,” she recalled in an interview with The Pigeon.
“It was powerful to see the Supreme Court of Canada not only affirm the constitutionality of carbon pricing but provide some clarity on the depth to which climate change is a matter of grave concern to all Canadians,” she explained.
Abreu isn’t alone. Larissa Parker, a representative for the Youth Climate Lab and a third-year law student at McGill University, said the decision was a huge success for the organizations who’ve been active in the court process.
“For the first time, the Supreme Court’s recognizing climate change and vulnerable communities,” Parker said. “It’s so exciting.”
The coalition, led by advocacy organization Generation Squeeze, argued that decisions surrounding climate change must take future Canadian generations and their ability to thrive into account.
Parker said this legal decision was especially exciting for her as a law student because it interprets the constitution in a way that enables the federal government to take direct action to prevent climate change. She mentioned learning about how the constitution sets out provincial and federal jurisdictions, and the ways that can hinder swift action.
“When I got to law school, I realized that the federal government was pretty limited in setting policy that affected greenhouse gas emissions because provinces have jurisdiction over natural resources,” she explained. “It was pretty frustrating at the time because it kind of [felt] like the law [was] getting in the way of any reform.”
In light of last week’s decision, Parker is looking forward to seeing Canada prioritize the planet moving forward.
“The courts basically said climate change is sufficiently an issue of national concern to justify infringement of provincial powers,” she said.
Which precedents did this decision set?
While the majority of Supreme Court justices agreed with the federal government’s claims that climate change is urgent enough to demand federal intervention, three of them voted against the decision.
They dissented, believing this decision sets a dangerous precedent for the federal government’s ability to interfere in provincial and territorial jurisdictions, including trade, health, and other areas of natural resource management.
While Abreu agreed this decision sets a precedent, she said it’s a positive one.
“We’ll see in the coming months and years the extent to which the precedent set by this case can be used in other contexts,” she explained. “A lot of the work is going to [be] trying to figure out what a minimum standard is—what’s the threshold of regulatory intervention that is reasonable for the federal government to [impose]?”
This decision was due in part to a clause in the constitution giving the federal government the power to make decisions on issues the document doesn’t outline. Climate change isn’t addressed in the constitution, as it was written in 1867, but the Supreme Court found it’s important enough to deserve immediate federal action.
Although the 1982 amendments to the constitution recognized provinces’ and territories’ constitutional rights to manage their own non-renewable natural resources, this decision shows that responding to climate change would override a province or territory’s control.
“Just the very linking of [this clause] with addressing climate change is pretty game-changing in Canada,” Abreu said.
Another piece of the Supreme Court’s decision Abreu hopes will become standard is its acknowledgement of climate change’s impact on marginalized people.
The decision explicitly mentioned the ways climate change disproportionately harms vulnerable communities and regions, and stated Indigenous peoples, the Canadian Arctic, and Canada’s coastal regions were the most at risk.
“We have this emerging acknowledgement in the highest offices of the land […] that environmental racism is an issue,” Abreu explained. “[The Supreme Court agrees] climate change disproportionately affects marginalized communities that are already facing systemic inequality and oppression.”
Last week’s decision coincides with the passing of Bill C-230, a piece of legislation that was first read in the House of Commons in Feb. 2021. The bill seeks to develop a national strategy to reduce the harms of environmental racism, but it will have to pass through the Canadian Senate before it can be made into law.
Abreu hopes these discussions at the federal level will facilitate a more intersectional approach towards climate legislation.
“How Canadian governments react to that and shift their design of climate policy is a really big question,” she said.
What’s next for Canada?
Last week’s decision may be monumental, but Abreu said it’s nothing compared to the work ahead.
“The public discourse around climate action has been really captured by the carbon pricing dialogue, and I don’t think that’s been good for Canada,” she said. “It has limited the public’s imagination of what coherent climate action looks like.”
With the federal carbon tax now set, Abreu hopes there will be more room in national discussions for other pressing issues related to climate change.
“[Now] we can stop using up our time and energy talking about this one climate policy when we need to be talking about all of the other pieces [of action] we know we need,” she said.
“If we just take a look at the largest sources of emissions in Canada, the largest and fastest-growing source of emissions is the oil and gas industry,” Abreu explained. “That is the one place where we have very few policies or regulatory approaches to driving down emissions.”
From 2000 to 2018, the industry’s nationwide emissions increased by 23 per cent. Alberta’s oil and gas sector alone was reported to be “the largest single source of emissions across Canada,” as it made up 19 per cent of the country’s total greenhouse gas emissions in 2017.
However, the COVID-19 pandemic has shown gaps in the ability of oil and gas to stay afloat under pressure, as the price of oil fluctuated significantly and the natural resources sector suffered a number of job losses.
A significant percentage of Canadian energy already comes from renewable sources, including hydro, wind, and solar power. Many are recommending Canadian provinces commit to a green recovery to ensure a more stable economy in future crises.
Abreu said the federal government needs to plan for a future with less reliance on oil and gas.
“We really clearly need to be thinking about how to bend that curve and how to decouple Canada’s economy from emissions […] And a big part of that is being really honest about the future of our oil and gas industry and engaging in industrial planning.”
For Parker and the Youth Climate Lab, future legislation needs to focus more on the needs of young Canadians.
“Climate change disproportionately affects the health of youth today, but also future generations,” Parker said. “Climate change is [an] intergenerational public health problem.”
“We’re hopeful, but we’re also very cognizant that more needs to be done.”