Monday, May 06, 2019

On sound rejections

The Saskatchewan Court of Appeal's decision rejecting the Moe government's attacks on federal carbon pricing is worth a read in no small part for the general acceptance of a climate crisis by all parties when they were forced to rely on evidence rather than spin. But let's focus on how the majority judgment found the arguments asserted to challenge the federal backstop to be flawed from that starting point:
[51] Saskatchewan advances two main lines of argument in seeking to have the Act found unconstitutional. The first is that the principle of federalism prevents Parliament from enacting a statute applicable in only some provinces because of how those provinces have chosen to exercise their legislative authority. Saskatchewan’s second argument is that the Act imposes a tax and, because it allows the Governor in Council to decide where it applies, the Act offends the requirement in s. 53 of the Constitution Act, 1867 that bills imposing taxes must originate in the House of Commons. Saskatchewan goes on to deny that, as contended by Canada, the Act can be sustained under Parliament’s authority under the national concern branch of POGG.
[68] Saskatchewan has referred to no judicial authority which in any way directly supports the idea that the principle of federalism can or should independently render unconstitutional an otherwise valid law. Its argument on this front cannot succeed.
[111] In the end, Saskatchewan’s argument about the application of s. 53 of the Constitution Act, 1867 cannot succeed. The charges in issue here are not taxes in the constitutional sense of that term. However, if the charges are characterized as taxes, they do not violate s. 53.
And more fundamentally, on the need for climate policy to be subject to federal oversight rather than the whims of provinces acting in bad faith:
[156] All of this said, a good deal of the real significance of individual provincial failures to price GHG emissions to a minimum level plays out on a different plane. Climate change is a global problem and, accordingly, it calls for a global response. Such a response can only be effectively developed internationally by way of state-to-state negotiation and agreement. This, of course, is the story of the Framework Convention, the Kyoto Protocol, the Copenhagen Accord, and the Paris Agreement. In participating in these international processes, Canada is expected to make national commitments with respect to GHG reduction or mitigation targets. Those commitments are self-evidently difficult for Canada, as a country, to meet if not all provincial jurisdictions are prepared to implement GHG emissions pricing regimes – regimes that, on the basis of the record before the Court, are an essential aspect of successful GHG mitigation plans. This is not to suggest Parliament must somehow enjoy a comprehensive treaty implementation power in relation to the GHG issue. But, it is to say that the international nature of the climate change problem necessarily colours and informs an assessment of the effects of a provincial failure to deal with GHG pricing.

[157] It is true that the provinces, acting individually but cooperatively, could agree on a minimum national price for GHG emissions and thereby accomplish the same goal as the one sought by the Act. But this is not the point here. The point is that provinces could always withdraw from such arrangements and there is, accordingly, no assurance that coordinated provincial action would lead to a sustained approach to minimum GHG pricing.
Needless to say, though, no matter how soundly the Sask Party's political and legal positions have been rejected, it's always good news for Brad WallScott Moe.

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