-A A +A

December 5, 2019 – The Supreme Court must tackle vital constitutional questions and confront whether greenhouse gases represent a national concern under the peace, order and good government power, says a new report from the C.D. Howe Institute.

In “Living Tree or Invasive Species? Critical Questions for the Constitutionality of Federal Carbon Pricing,” author Grant Bishop argues that, in upcoming appeals, the Supreme Court of Canada must coherently address whether greenhouse gases represent a national concern that falls under exclusive federal jurisdiction and confront whether activity-level greenhouse gas regulation, such as federal output-based carbon pricing for large emitters, intrudes on provincial powers.

Although policy research has consistently recommended pricing of greenhouse gases as the most economically efficient policy to reduce Canada’s greenhouse gas emissions at the least economic cost, how it is to be regulated will force the Supreme Court to grapple with constitutional questions that the Ontario and Saskatchewan courts neglected, argues the author. While Ontario and Saskatchewan courts of appeal upheld the Greenhouse Gas Pollution Pricing Act, they did not appropriately define “national concern” nor confront whether or not the federal government would have exclusive jurisdiction over the regulation of greenhouse gases.

“Because carbon pricing is good policy does not mean courts should contort Canada’s constitutional architecture,” says Bishop. “Even if greenhouse gases are a national concern, activity-level regulations like the output-based pricing system should arguably be outside of federal jurisdiction. However, if the Supreme Court finds greenhouse gases represent a national concern, the federal government would have exclusive jurisdiction over that subject matter, displacing provincial jurisdiction.”

Bishop suggests greenhouse gas regulation breaks new ground for federal-provincial division of powers—if not restricted from imposing industry specific greenhouse gas standards, the federal government would have a back door to invade the provincial powers for property and civil rights, local or private matters, natural resources and electrical power generation.

However, there is also a case for giving the federal government exclusive regulatory power when it comes to greenhouse gases. “There is a good argument that the regulation of greenhouse gases should fall under exclusive federal jurisdiction for the consistent application of national concern under its peace, order and good government power,” says Bishop.

For more information contact: Grant Bishop, Associate Director, Research; or Nancy Schlömer, Communications Officer, C.D. Howe Institute, phone 416-865-1904 ext. 0247, email: nschlomer@cdhowe.org.

Read the Full Report

The C.D. Howe Institute is an independent not-for-profit research institute whose mission is to raise living standards by fostering economically sound public policies. Widely considered to be Canada's most influential think tank, the Institute is a trusted source of essential policy intelligence, distinguished by research that is nonpartisan, evidence-based and subject to definitive expert review.