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"Parliament does have authority over a narrower POGG subject matter – the establishment of minimum national standards of price stringency for GHG emissions." #cdnpoli #ableg
SK Court: "The Act falls within the legislative authority of Parliament. It is not unconstitutional in whole or in part."
SK Court: "Canada contends it should be recognized, under the national concern branch, as having jurisdiction over “the cumulative dimensions of GHG emissions”. This approach must be rejected..."
"There is no constitutional magic in the fact a province has failed to move in a particular policy area."
Interesting from SK Court: "The Westbank factors indicate that the charges imposed pursuant to Part 1 are part and parcel of a regulatory regime."
"The Act could fully accomplish its objectives, i.e., the establishment of minimum national standards of price stringency for GHG emissions, without raising a cent."
"It is difficult to see how the Act, which is ultimately wholly disinterested in generating revenue, can nonetheless be seen as a law with a primary purpose of raising revenue for general purposes."
SK Court on the output-based pricing system: "it is evident that the excess emissions charge imposed under Part 2 of the Act is not a tax."
"There is a great deal of merit in the concerns raised by Saskatchewan and its supporting intervenors as to the impact that bringing “GHG emissions” under the national concern branch would have on the balance of federalism. 1/2
Put simply, an unqualified jurisdiction in relation to such emissions would lead Parliament deeply into areas of historically exclusive provincial authority." 2/2
"All things considered, it is not possible to conclude “GHG emissions” or, as Canada puts it in oral argument, “the cumulative dimensions of GHG emissions” fall within federal jurisdiction by virtue of the national concern doctrine."
This is a crucial paragraph, at least for me.
"The record indicates climate change has emerged as a major threat, not just to Canada, but to the planet itself. [...] 1/2
...If it is necessary to apply established (national concern) doctrine in a slightly different way to ensure both levels of government have the tools essential for dealing with something as pressing as climate change, that would seem to be entirely appropriate."
Hi there, @riversNic
@riversNic "National commitments with respect to GHG reduction or mitigation targets [are] self-evidently difficult for Canada, as a country, to meet if not all provincial jurisdictions are prepared to implement GHG emissions pricing regimes."
@riversNic This is an argument I wasn't sure would pass muster. It did. "Establishing minimum national standards of price stringency for GHG emissions can properly be seen as a matter that satisfies the Crown Zellerbach 'singleness, distinctiveness and indivisibility' requirement."
@riversNic Sometimes, I'm wrong. I was wrong on this one: "By way of a bottom line on this issue, the establishment of minimum national standards of price stringency for GHG emissions is a matter falling within federal jurisdiction by virtue of the national concern branch of POGG."
@riversNic "The trade and commerce argument advanced by the intervenors cannot succeed for a very basic reason. The Act, in its pith and substance, does not concern trade and commerce." A bit odd, given the structure of the OBPS is specifically about sector-level protections.
@riversNic On criminal law power, the SK Court says, "not in this case." They certainly open the possibility of federal power to regulate GHGs via criminal law head of power, but don't buy the stretch to say that's what this act does.
@riversNic SK Court hits one of my big pet peeves. No, the OBPS does not impose limits on emissions. "Notably, there is no prohibition in any of this. A covered facility may emit whatever volume of GHGs its operator chooses."
@riversNic On the national emergency doctrine: "Climate change is doubtless an emergency in the sense that it presents a genuine threat to Canada.... 1/2
@riversNic ...However, the factual record before the Court cannot sustain a view that the climate change challenge is in any way short run or that the Act is intended to have, or is expected to have, a life of limited duration." 2/2
@riversNic Paging @PremierScottMoe: "The applicability of the Act is not part of the question posed by the Lieutenant Governor in Council. 1/n
@riversNic @PremierScottMoe ... It has asked the Court for an opinion as to whether the Act is “unconstitutional in whole or in part”, not for an opinion as to whether the Act is constitutionally inapplicable in certain situations or in relation to SaskPower and SaskEnergy in particular. 2/3
@riversNic @PremierScottMoe ...If the Lieutenant Governor in Council had been concerned with the constitutional applicability of the Act to SaskPower and SaskEnergy, it presumably would have formulated a question in relation to that issue." Oops? 3/3
@riversNic @PremierScottMoe SK Court: "In these circumstances, it would not be appropriate to offer an opinion about the application of the Act to SaskPower and SaskEnergy." That's a big miss by SK: the applicability of federal regulatory charges (not taxes!) to Provincial Crown corps.
That's it for the majority. It was a 3-2 decision, so onward to the dissent.
Hmm: "A matter is a notional construct imagined by a court..."

"This is not, however, to say that matters are merely the constructs of the courts."
The dissent is written with a very different rhetorical flourish. To whit: "to avoid the error of hypostatisation, the courts have constructed more constitutionally-palatable notions of a matter so as to shoehorn a federal environmental law into a federal class of subjects..."
"Because none of the Attorneys General dispute the causative effect anthropogenic GHGs have on climate change or the attendant and existential necessity of mitigating anthropogenic GHGs, the proof or truth of these facts is not at issue. That is, they are proven and true."
Interesting in the dissent: "We find the fuel levy imposed under Part 1 of the Act bears all of the hallmarks of taxation and exhibits insufficient indicia of a regulatory charge... 1/2
...We find Part 2 lacks certain hallmarks of taxation and bears sufficient hallmarks of a regulatory scheme to conclude that Part 2 does not impose a tax." This stuff is going to be @LindsayTedds catnip.
"While the fuel levy has a “more ambitious” goal than simple taxation, namely, to promote behaviour that may indirectly result in the reduction of (GHGs), that does not remove the fuel levy from the realm of a taxation under s. 91(3)." Interesting.
Okay, this is really interesting. The dissent holds that the OBPS has characteristics that make it a regulatory charge, "chief among which is the clear and direct nexus that exists between the quantum of the levy and the regulatory purpose of the levy."
From a strictly economic point of view, there is almost no mathematical difference between the OBPS and the carbon levy, with the exception that the rebate is lump-sum to households, and output-based to facilities.
The trading and banking and borrowing provisions of the OBPS add more regulatory overhead, for sure, so that seems to be the anchor for the dissent.
A carbo vestigium tax. Your goal for today is to use those words in polite conversation.
"While the 2 Parts are complementary in their longbow aim, we are simply not persuaded that Part 1 forms a complete, complex and detailed scheme of regulation of GHG emissions. Therefore, the first of the criteria in Westbank (is it a tax?!?) is not satisfied by the fuel levy."
This feels a bit like the Witch trial in Monty Python and the holy grail: What else simply imposes a levy at the distribution level and establishes a collection regime for the levy? Sales taxes! GST! Very small rocks! Therefore, it's a tax.
Yes, I'm getting a bit punchy. It's Friday afternoon.
I don't understand how the dissent can hold this: "(the OBPS will) directly encourage industrial GHG emitters to reduce their GHG emissions by imposing a OPBS levy that is ostensibly intended to make emissions cost-prohibitive if they are in excess of a base level" 1/2
while also, at the same time, assuming that prices on consumers will only "indirectly" lead to emissions reductions. There's no magic line at 50,000kt per year where economic rationale starts and stops.
These two sections basically seem to assume that the same economic/financial incentives are interpreted very differently by two types of actors (large facilities vs smaller emitters)
The levy is an OBPS with a 'soft standard' if you like, it's just that the 'soft standard' at which you will see zero average cost is determined by the rebate rather than an allocation of credits.
Dissent is not a fan of "revenue neutrality" accounting a la BC: "nothing is added to the characterisation of a levy by legislatively designating its revenues to be distributed as tax credits to persons who may spend it in ways unconnected to a regulatory purpose."
Interesting: "As an aside, the fuel levy is not fiscally-neutral since its revenues are distributed; they are not reinvested in new spending associated with climate change, like the fiscally-neutral Alberta and Quebec carbon tax regimes."
Wait, what? No, dissenters, CO2 and smoke are not the same thing. "regulations with respect to the release of CO2 into the atmosphere (i.e., smoke) have existed for centuries and have been considered a local matter."
Nobody tell the dissenting Justices about how we dealt with acid rain, okay? Or that whole ozone layer thing.
Another interesting bit: despite the dissent holding that the carbon levy was clearly a tax, they feel that Parliament may have been convinced it was a regulatory charge when delegating its taxation powers.
Dissent holds that, "we conclude that Part 1 of the Act is invalid because it lacks a clear and unambiguous statement of Parliament’s intention to delegate its taxing authority as required by s. 53 of the Constitution Act, 1867." Even if that held, would be an easy remedy.
Oh, hi there @DwightNewmanLaw
The dissenting justices have definitely been persuaded by the idea that this Act is an end-around on Parliament's tax powers. "The open-ended structure...is, frankly, a recipe for the type of abuse Professor Hogg identified in 'Can the Taxing Power Be Delegated?'
"In our opinion, that is exactly what occurs under Part 1—the Constitution has been circumvented to allow taxation by executive and bureaucratic edict."
Okay, this strikes me as a very odd reading of 92A on the inability for provinces to impose trade tariffs on other provinces.
92A says nothing about uniform taxation across provinces - it says that a province may not impose taxes on goods shipped to other provinces (ahem, a duty) that it does not impose on itself.
The dissent reaches to find support for equality of taxation in the Constitution. They state that, "outside of tax laws, we are not aware of any constitutional principle that requires federal legislation to apply in the same way to all individuals throughout Canada."
I'm not sure this is at all the case: "However, for the purposes of this reference, the principle of uniformity of taxation—the equality of taxpayers under tax laws—may be found in the Constitution and, therefore, may be said to be a principle of federalism."
"Uniformity in taxation requires equality in the burden of taxation, which cannot exist without uniformity in the mode of assessment as well as in the rate of taxation." 1/2
Dissent basically is arguing that a carbon tax, if it is to be imposed federally, "should be extended to all things subject to that tax within the nation so that all such things may be taxed alike and equally."
This is a bit of a throwaway in [385] but seems very important: (Parliament), "could easily have imposed a co-extensive national tax on CO2e emissions...with tax credits to off-set...locally-imposed CO2e levies of sufficient stringency." That's the dissent.
This cuts against many other claims make that taxation of emissions would violate 92A jurisdiction because of the impact on natural resource industries.
Dissent: "The AG of Canada has conceded that neither the environment, nor air pollution at large, are matters of national concern (AG-Can Factum at para 88). Implicit in this is a concession that those issues are not distinct matters in constitutional terms." I don't think so.
Maybe I'm missing the Justices' nuance here, but the argument that neither the environment nor air pollution writ large are matters of national concern in general does not imply that they are not distinct matters.
"The Act is not, except insofar as it purports to set a national benchmark price, qualitatively or functionally different from anything that the Provinces could practically or constitutionally enact to regulate GHGs...whether “separately or in combination”. Right...
But the whole point of the need for the Act is that an individual province, as the Dissent has affirmed, can't assure that other provinces Act along with it. Feds can do that, which is the point of the majority decision.
In [426], the Dissent contradicts itself on the local nature of GHGs. "(GHGs), while having a local origin, instantly become an indiscernible, fungible part of the international whole of GHG emissions, which travels inter-provincially, extra-provincially and internationally."
Big shot across the bow for the "whattabout China" crowd from the Dissent: "deleterious effects of GHG emissions are not somehow heightened by their accumulation—each molecule is equally pernicious on its own and nothing suggests the aggregation of GHGs has synergistic effect."
Next, we're still on POGG: "Although the chemical and scientific distinctiveness of GHGs allows them to be readily identified for regulation purposes, it does not make them constitutionally distinct for the purposes of a POGG analysis."
The dissent again holds that they GHGs are like smoke: "Nor are we satisfied that (...) the interprovincial quality of GHGs necessarily lends distinctiveness to them. The same can be said of other local air pollution, for instance smoke."
This seems a fragile foundation on which to build this argument: "The extra-provincial, international nature of GHGs does not give the distinctiveness the matter requires for constitutional purposes."
The Dissent gets a more frustrated feel as you read it: "the narrow moniker of setting 'minimum national standards of stringency' belies the pervasive impact of the Act and its reach into the lives of the people and the economy of a Province in the name of reduction of GHGs"
Dissent: "'setting “minimum national standards of stringency for pricing GHGs' is just a nice way of saying the matter is actually “the regulation of Provincial GHG pricing”, which is something that would rip the heart out of the division of powers, if it were permitted."
"A disagreement about the right numbers does not imbue the matter with any constitutional distinctiveness. A disagreement about the mechanisms used to achieve those numbers likewise provides no distinctiveness. Stringency is a very thin basis upon which to invoke POGG."
"The notion that nat'l benchmarks are required speaks of a federal dissatisfaction with Provincial policy and a desire to impose federal policies on those Provinces now not meeting the benchmark and on those whose future policies may...fail to meet the federal benchmark." Yes.
A little bit of Weiztman in the dissent: J's are concerned that federal policies act on prices, not quantities, worried that it does not stipulate specific measures like CCS, and wonder why it doesn't impose a price ceiling as well as a floor. [452]
Prices vs quantities vs regs in [452]: "the fuel levy is a tax and the OBPS levy is an intensity-based trading regime that permits the heavy industrial users to buy the right to emit GHGs; whereas, Provincial carbon-capture policies directly effect a reduction of GHG emissions"
I'm pretty sure federal income taxes, the GST, and many other aspects have more substantial touch on every aspect of our lives than the federal carbon pricing backstop. Still, the "tax on everything" line finds its way into the dissent.
Okay, this is plainly wrong: "On a practical level, the imposition of the Act deprives a Province of the ability to regulate GHGs within the Province, to fashion solutions that are sensitive to local needs, and to respond to regional diversities." No, it doesn't do that at all.
And this is an egregious over-statement: The Act is highly intrusive into provincial jurisdiction...it is only slightly less intrusive than the legislation considered in Anti-Inflation, where the federal govt had sought to pervasively control wages and prices in the Provinces."
New favorite word: transmogrification.
Klaxon: "The profuse use of the word 'prescribed' is reminiscent of the statement of that egg-shaped philosopher in Carroll’s Through the Looking Glass (1872) who said, in a rather scornful tone, 'When I use a word…it means just what I choose it to mean—neither more nor less'."
Okay, this is also very strange: "The Act pervades the life and economy of each Province it affects. It unilaterally imposes federal policy in place of Provincial policy on the same matter, a matter over which the Provinces have exclusive jurisdiction." 1/2
2/2 Earlier, the same dissenting opinion held that Parliament could 'easily' impose federal policy in GHGs. And, there is no statutory replacement of provincial policies by the backstop. The backstop is in place or it isn't. Prov policies are removed by statute.
Dissent was very careful not to say anything against action on GHGs: "we agree that all levels of government in Canada must take action to address climate change. The anthropogenic emission of GHGs is an issue of pressing concern to all Canadians and to the world."
To whit my earlier comment about it being odd that some parts of the dissent talk about this as an exclusive provincial power. In conclusion: "Parliament has a number of constitutional powers, legislative means and administrative mechanisms at its disposal to (reduce GHGs)."
This concludes my ridiculously long thread on the SK Court of Appeals decision on the constitutionality of the Greenhouse Gas Pollution Pricing Act. Thanks for reading.
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