3 courts, 3 rulings: Carbon tax seen differently in different courts

Legal experts say rulings from provincial appeal courts on the federal carbon tax aren’t about the tax itself, but rather the government’s legal grounds to impose it.

The Court of Appeal of Alberta ruled on Monday that the tax is unconstitutional. Two other provincial appeal courts — in Saskatchewan and Ontario — sided with the federal legislation in decisions last year.

University of Alberta law professor Eric Adams said the judgments differ because each court understood differently what the law is trying to do.

He said the Alberta judges saw the tax’s goal to be regulating greenhouse gases overall — a much broader goal — rather than just setting a national price on carbon.

Professor David Wright at the University of Calgary said the tax law relies on a little-used section of the Constitution that judges are now grappling with.

Both agree that Ottawa has plenty of other ways to bring in a carbon tax if the Supreme Court rules against it.

In a 4-1 decision released Monday, the Alberta court rejected Ottawa’s argument that regulation of greenhouse gas emissions is an issue of national concern, citing the division of powers in the Constitution that gives the provinces responsibility for non-renewable resources.

The majority opinion called the Greenhouse Gas Pollution Pricing Act “a Constitutional Trojan horse” and said the legislation contains no limits on the scope of the federal government’s power. 

“What is authorized under the act indefinitely into the future and in the sole unfettered discretion of the executive is endlessly expansive,” the decision said. “The executive’s authority is also open-ended and largely subjective.

“Conspicuous for its breadth, the act allows the federal government to intrude further into more and different aspects of lawful daily life, both personal and business.”

The Alberta government had argued in its challenge of the tax that climate change isn’t a national concern requiring overriding federal intervention.

The federal government countered by saying climate change is a national and global issue that can’t be left to each province to tackle alone.

Following the decision, Alberta Premier Jason Kenney promised to defend Alberta’s interests from what he called “a hostile federal agenda.”

Albertans began paying the federal carbon levy Jan. 1. As it stands, the carbon rebate in Alberta will amount to $888 for a family of four in 2020. The amount represents a rebate for carbon tax paid over 15 months, from January 1, 2020 to March 31, 2021, because Albertans were not included in the rebate program last year.

Ottawa approved the Alberta system for big emitters, which charges $30 a tonne on emissions from facilities that emit more than 100,000 tonnes a year. Those facilities are each asked to reduce emissions by 10 per cent in the first year, and one per cent per year after that. If they don’t hit those reductions, they pay the carbon tax on whatever they emit over their cap, or buy credits from firms that exceed their targeted reductions.

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