Reference re Greenhouse Gas Pollution Pricing Act

Reference re Greenhouse Gas Pollution Pricing Act
Case name	Reference re Greenhouse Gas Pollution Pricing Act
Court	Supreme Court of Canada
Citation	2019 SCC 11
Decided	March 25, 2019
Judges	Wagner CJC; Moldaver, Karakatsanis, Côté, Brown, Rowe, Russell, Kasirer, Gascon JJ
Prior	Reference questions referred by provinces and federal government
Keywords	division of powers, pith and substance, interjurisdictional immunity, carbon pricing, federalism

Reference re Greenhouse Gas Pollution Pricing Act

The Reference re Greenhouse Gas Pollution Pricing Act was a landmark decision of the Supreme Court of Canada resolving constitutional challenges to the Greenhouse Gas Pollution Pricing Act enacted by the Parliament of Canada in 2018. The Court held that the federal law establishing minimum national pricing for greenhouse gas emissions was a valid exercise of the federal government's authority under the peace, order and good government power, affecting the balance of powers between the Government of Canada and the provinces including Alberta, Saskatchewan, Ontario, and Prince Edward Island.

Background

Provinces including Alberta, Saskatchewan, and Ontario sought references or brought constitutional challenges to the federal legislation after the Parliament of Canada passed the Greenhouse Gas Pollution Pricing Act to implement national minimum standards for carbon pricing following commitments under the Paris Agreement. Key actors included the Attorney General of Canada, provincial attorneys general such as those from Alberta and Saskatchewan, and interveners including environmental organizations like David Suzuki Foundation and industry groups like the Canadian Federation of Independent Business. The law created a federal backstop consisting of a charge and an output-based pricing system to apply where provincial systems were judged insufficient under federal criteria developed by Environment and Climate Change Canada. The constitutional contest raised questions about federalism akin to disputes in earlier cases such as R v Crown Zellerbach, Ontario v Canada Temperance Federation and references like Reference re Secession of Quebec.

Constitutional Issues and Legal Questions

The Court framed the dispute around division of powers doctrines including \"pith and substance,\" ancillary powers, and interjurisdictional immunity as articulated in precedents like Canadian Industrial Gas & Oil Ltd v Quebec (AG), Reference re Firearms Act (Canada), and R v Hydro-Québec. Central legal questions included whether the Act's dominant purpose fell within federal heads of power such as the peace, order and good government power for matters of national concern, or whether it intruded on provincial jurisdiction over property and civil rights under section 92 of the Constitution Act, 1867 as recognized in cases like Provincial Secretary v Attorney General of Ontario. Parties debated federalism principles developed in Reference re Provincial Electoral Boundaries (Saskatchewan) and the limits set in R v Morgentaler and Re Board of Commerce Act, 1919.

Judicial Proceedings and Decisions

The matter was brought to the Supreme Court of Canada via references and appeals after provincial reference requests and litigation in provincial courts including filings in Court of Appeal for Saskatchewan and Court of Appeal for Ontario. The Court's majority, led by Chief Justice Richard Wagner and concurrences by Justices such as Moldaver and Karakatsanis, applied the national concern branch of the peace, order and good government doctrine, invoking tests refined in R v Crown Zellerbach and Reference re Secession of Quebec. The majority concluded that establishing minimum national standards for greenhouse gas pricing addressed a matter of national concern distinct from provincial matters, thus within federal competence. Separate opinions referenced interjurisdictional immunity and federal paramountcy principles found in rulings like Multiple Access Ltd v McCutcheon and Rothmans, Benson & Hedges Inc v Saskatchewan, rejecting a broad immunity for provincial regimes. Dissenting or concurring observations engaged with prior reasoning from judges in Reference re Securities Act and debated federal reach relative to provincial autonomy.

Impact on Canadian Federalism and Climate Policy

The decision clarified the scope of federal power under the national concern doctrine, influencing constitutional contours first adjudicated in cases such as R v Hydro-Québec and Reference re Environmental Protection Act. It affirmed federal capacity to set nationwide environmental regulatory floors that interact with provincial schemes in British Columbia, Quebec, and Nova Scotia. Policy implications affected implementation by federal entities including Environment and Climate Change Canada and provincial ministries such as Alberta Environment and Parks, shaping carbon pricing mechanisms and responses to obligations under the Paris Agreement and guidance from international bodies like the Intergovernmental Panel on Climate Change. The ruling also informed legislative strategy in the Parliament of Canada and provincial legislatures on cooperative federalism and regulatory design.

Reactions and Commentary

Reactions ranged from federalist proponents and environmental NGOs like the David Suzuki Foundation and Greenpeace Canada praising the decision for enabling national climate action, to provincial governments such as Alberta and Saskatchewan criticizing it as an intrusion on provincial jurisdiction. Legal scholars and commentators from institutions such as the University of Toronto Faculty of Law, Osgoode Hall Law School, and the C.D. Howe Institute produced analyses situating the case within constitutional jurisprudence developed in judgments like Reference re Firearms Act (Canada) and R v Oakes. Media outlets including the Globe and Mail, National Post, and CBC covered political fallout, while international observers compared the ruling to federalism disputes in jurisdictions like the United States and European Union.

Subsequent Developments and Implementation

Following the decision, the federal government proceeded to apply the federal backstop in provinces without compliant systems, working with provincial administrations and entities such as the Canada Revenue Agency for the charge and provincial regulators for the output-based pricing system. Litigation and political debates continued in legislatures including the Legislative Assembly of Alberta and Legislative Assembly of Saskatchewan, and in public policy fora such as panels convened by the Institute for Research on Public Policy. The ruling has since served as precedent in judicial review and constitutional challenges touching environmental regulation, intergovernmental cooperation, and the limits of the peace, order and good government power in Canadian constitutional law.

Category:Supreme Court of Canada cases Category:Canadian constitutional law Category:Environmental law in Canada