Provinces did not have ability to establish minimum national standards for green house gas emissions

Environmental Law - Constitutional Issues - Jurisdiction to Enact Environmental Legislation

Federal government passed Greenhouse Gas Pollution Pricing Act [Act]. Act created carbon based fuel charge and set out mechanism for pricing industrial greenhouse gas [GHG] emission by establishing output-based pricing system in provinces that did not have adequate program in place. Ontario government referred constitutionality of Act to Court of Appeal. Act was constitutional . Act was within Parliament’s jurisdiction in relation to matters of national concern under Peace, Order and good Government portion of Constitution Act, 1867. Pith and substance of Act was establishing minimum national standards to reduce GHG emissions, and means chosen was minimum national standard of stringency for pricing. Environment is not matter of exclusive jurisdiction under Constitution Act, 1867, rather jurisdiction is shared. Establishing minimum national standards to reduce GHG emissions was new matter that was not recognized at Confederation, and was distinct from reducing local air pollution. Act was related to international obligations. Act was product of extensive efforts to develop pan-Canadian approach to reduce greenhouse gases that had initially included Ontario, and one or more dissenting provinces could defeat national solution to matter of national concern. Matter was single, distinct and indivisible. Act created only minimum standard of stringency for pricing emissions. Provinces did not have ability to set establish minimum national standards for GHG. Assertion of jurisdiction did not severely limit provincial autonomy or displace broad swaths of provincial jurisdiction, but rather struck balance between Parliament and provincial legislatures. Act did not conflict with any Ontario measures to reduce greenhouse gas emissions. Charges imposed by Act were regulatory and not taxes. Act did not violate s. 53 of Constitution Act, 1867, as revenues generated by charges were not required to be linked to cost of scheme, and were not required to be cost recovery mechanisms.

Reference re Greenhouse Gas Pollution Pricing Act (2019), 2019 CarswellOnt 10495, 2019 ONCA 544, G.R. Strathy C.J.O., Alexandra Hoy A.C.J.O., J.C. MacPherson J.A., Robert J. Sharpe J.A., and Grant Huscroft J.A. (Ont. C.A.).

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