The carbon tax - Waiting for peace, order and good government

The Saskatchewan Court of Appeal found the Greenhouse Gas Pollution Pricing Act constitutional. The court also proclaimed that climate change caused by anthropogenic greenhouse gas emissions is one of the great existential issues of our time.

Perhaps Becket’s play on existentialism may not be the first reference that pops to mind for some people, but it certainly seems to apply here. As existence proceeds essence, the play asserts that the individual must discover the meaning of life through personal experience. Everyone talks, but our actions define what we are.

The federal government created the GGPP Act to ensure a minimum national price on GHG emissions to encourage their mitigation. This did not sit well with some of the provinces that attempted to show the act as being unconstitutional. The main players included the attorney general for Canada and the attorneys general for Saskatchewan, Ontario, British Columbia and New Brunswick. However, the court stated that the pressing importance of limiting such emissions was accepted by all of the participants.

Significantly, the court stated that the act operates as a backstop and applies only in provinces where GHG emissions are not priced at an appropriate level. The general character of the GHG phenomenon and the basic science of climate change were not contested by any of the interveners. So, the lawyers appear to be on side that there is an issue to be dealt with here.

The decision included substantial quotes from the affidavit of Assistant Deputy Minister of Environment and Climate Change Canada John Moffet. He included parts from the United Nations Intergovernmental Panel for Climate Change 2014 report. Part of the report concluded: “Human influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history. . . . Recent climate changes have had widespread impacts on human and natural systems. . . . Anthropogenic greenhouse gas emissions have increased since the pre-industrial era, driven largely by economic and population growth, and are now higher than ever. . . .Their effects, together with those of other anthropogenic drivers, have been detected throughout the climate system and are extremely likely to have been the dominant cause of the observed warming since the mid-20th century. . . . Continued emission of greenhouse gases will cause further warming and long-lasting changes in all components of the climate system, increasing the likelihood of severe, pervasive and irreversible impacts for people and ecosystems.”

The court stated that none of these conclusions was challenged by the participants.

The federal government attempted to justify the act on numerous grounds, including taxation. Interestingly, where the Constitution Act of 1867 empowers Parliament to raise money “by any mode or system of taxation,” the court held that the applicable parts of the act do not impose taxes in the constitutional sense of the term. This finding does not appear to be changing the anti-carbon tax rhetoric from the various opposition parties.

The federal government also argued that the act was a valid exercise under the national concern branch of peace, order and good government, as allowed under the Constitution Act. One would suppose that GHGs would then be a matter national concern. The provinces tried to suggest that the federal government could then regulate all aspects of life within the province right down to cattle feed. Cattle burps come to mind. (This is actually a front-end, not a back-end emissions problem.) The court did find that trying to regulate GHG emissions was too much of an overreach.

The province of B.C. helped save the day and perhaps all of the ones in the future. As the Attorney General of British Columbia suggested, the act could instead provide “the establishment of minimum national standards of price stringency for GHG emissions." Stringency includes the scope of application to the fuels, operations and activities to which the charge applies and the necessary regulatory regimes. The court thought that there was a good deal to recommend this approach. Cow burps could continue unabated.

No one argued to the court that the general question of GHG emissions and of climate change were not issues of superordinate consequence. The court also noted that no one challenged Moffet’s affidavit that “There is widespread international consensus that carbon pricing is a necessary measure, though not a sufficient measure, to achieve the global reductions in GHG emissions necessary to meet the Paris Agreement targets.” The court then stated that minimum national standards of price stringency for GHG emissions are matters of sufficient consequence for inclusion under the national concern branch of POGG.

The reach of the act appears to be reconcilable with the federal and provincial distribution of power. Apparently, establishing minimum national standards of price stringency still allows individuals and businesses the freedom to choose based on market signals.

This finally brings us back to the existential question of Waiting for Godot or, in this case, Waiting for POGG. Everyone has the freedom of choice, and your essence is determined by the choices you make. Or in the more familiar words generally attributed to Mark Twain, “Everyone talks about the weather, but nobody does anything about it. “ The courts have now allowed someone to do something about the changing weather.