Politics

Post-Alberta win, Kenney faces long court battle over constitutionality of Ottawa carbon tax

OTTAWA — Following his decisive election win in Alberta Tuesday, premier-designate Jason Kenney will now begin a long legal fight over the constitutional precedent of Ottawa’s carbon tax, one that’s expected to reach the highest court in Canada.

The argument Kenney will present against the federal carbon tax, which came into effect April 1 of this year, is likely to mirror the court challenges brought by Saskatchewan and Ontario, which have questioned the constitutionality of the measure.

The United Conservative Party’s win will mark a sharp turn in the province’s environmental policy. The NDP introduced a number of stringent climate measures in 2015 that included the province’s first ever economy-wide carbon tax. Kenney has promised to repeal that tax as one of his first policy moves after taking power.

That would cause the NDP measure to be replaced by a federal carbon tax introduced by the Trudeau Liberals, which essentially acts a backstop to any provinces that don’t currently have a carbon tax in place — currently Saskatchewan, Ontario, Manitoba, New Brunswick, and likely soon Alberta. The federal backstop is currently set at $20 per tonne, which translates into roughly an extra 4.4 cents per litre at the pumps in Ontario. Economists widely argue that carbon taxes are the most simplest mechanism to reduce GHG emissions, and are cheaper than regulations aimed at heavy emitters.

In his acceptance speech Tuesday night, Kenney said Alberta has been “targeted” both by Ottawa and environmental groups, a message that taps into a deep resentment that has persisted in the province in recent years. He referenced his plans to scrap the “carbon tax cash grab” imposed by the NDP, and hinted at a number of policies introduced by Ottawa that are seen as negative for Alberta industry, including Bill C-69 which proposes to overhaul the review process for major projects like oil pipelines.

We would agree with that, and in fact we would go one step further and say there is a national emergency going on with respect to climate change

The Ontario Court of Appeal is hearing testimony this week on that province’s challenge. The province is arguing the tax essentially amounts to jurisdictional overreach, which Ontario attorney Josh Hunter said on Monday could “fundamentally alter the balance of our federation.”

The arguments mirrored those made in an earlier court challenge by Saskatchewan, in which provincial lawyers argued that the federal plan unduly enforces carbon taxes as the only mechanism to fight climate change, rather than allowing provinces to pursue other avenues.

Conservative parties have increasingly looked to regulatory measures aimed at heavy emitters as a way to reduce greenhouse gas emissions, rather than to economy-wide carbon taxes that mean higher prices for, say, gasoline and diesel.

The provincial claims underscore the borderless reach of environmental policies, which typically target emissions from a long list of sources and therefore cross over hazy jurisdictional lines.

Hunter argued on Monday that because of the absence of clear lines defining which emissions are provincial and which are federal, Ottawa’s backstop effectively opens the door for future constitutional overreach — allowing the feds to enforce hard limits on the amount of fossil fuels used to heat homes, for example.

Ottawa, for its part, is arguing that the failure to enforce a backstop could simply allow provinces to avoid introducing stringent environmental policies, and therefore requires some level of federal oversight.

“We would agree with that, and in fact we would go one step further and say there is a national emergency going on with respect to climate change,” said Josh Ginsberg, Ecojustice lawyer and special counsel to the David Suzuki Foundation.

Despite Canada’s efforts to introduce tighter environment policies, the country is still set to fall short of its Paris Agreement targets set in 2016. Canada aims to cut emissions to 30 per cent below 2005 levels by 2030.

On Wednesday a number of interveners testified against Ontario’s court challenge, where they argued climate change is an inherently global issue that needs to be dealt with at the highest levels. Scientists warn that species extinction rates are at an all-time high, in part due to rising industrial GHG emissions.

“Their categorization that this is more of a local matter than a national or international one is simply wrong, and is inconsistent with the evidence,” said Stewart Elgie, a member of Canada’s Ecofiscal Commission, which is listed as an intervener in the challenge.

He said the court challenge from the provinces, which could include Alberta, are likely to reach the highest court in Canada.

“Most major federal environmental laws in the last 30 years have been constitutionally challenged, and they’ve ended up at the Supreme Court, and all of them have been upheld.”

Ryan Martin, a lawyer at McLennan Ross LLP who is representing the United Conservative Party, also argued in front of the Court of Appeal judges Wednesday, arguing that the federal tax would “radically alter the division of legislative power in Canada.”

• Email: jsnyder@postmedia.com | Twitter: jesse_snyder

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