Conservatives should have fought the carbon tax at the ballot box — not in the courts

OPINION: The Supreme Court has finally delivered its verdict on the federal carbon tax. The result is a total, abject defeat for three provinces and for conservatives generally
By John Michael McGrath - Published on Mar 26, 2021
Supreme Court Chief Justice Richard Wagner outside the court in Ottawa on March 15. (Adrian Wyld/CP)

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The carbon tax shall live, having found shelter from the stormy politics of Canada’s more tempestuous provinces in the safe harbour of a 6-3 decision from the highest court of the land. So ends a years-long campaign by the provinces of Saskatchewan, Ontario, and (relatively late in the game) Alberta to achieve for conservative activists and ideologues in the courts what they failed to achieve in the 2019 federal election: repealing the Greenhouse Gas Pollution Pricing Act, which establishes the minimal level of carbon pricing that provinces levy themselves — via a carbon tax or a cap-and-trade system — or that Ottawa levies in their place.

The immediate result of the decision is a victory for Prime Minister Justin Trudeau and the governing federal Liberals and a defeat for premiers Scott Moe, Doug Ford, and Jason Kenney. But the substance of the decision, delivered by Chief Justice Richard Wagner on Thursday, is, if anything, even more devastating to conservative legal and constitutional principles than it is to the simple case of carbon pricing that was immediately before the court.

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If it’s fair to say that, in general, conservatives would prefer to keep the role of government as small as possible and to keep power away from the national level and more concentrated in the provinces, Thursday’s majority decision by the court is a disaster for them from start to finish. This is made very clear in the three dissenting opinions, which are worth reading to understand what real concerns are being raised outside the world of partisan opportunism.

To start with, the court’s majority accepted the definition of minimum national standards for carbon pricing as a matter of “national concern,” meaning this is now effectively a permanent federal power. The decision tries to tailor its application narrowly, but the dissenting justices argue — as did provinces like Ontario — that this effectively opens the door to a much broader use of federal power in areas the Constitution otherwise preserves for the provinces.

Legal scholars are likely to continue arguing over the precise nature of the chief justice’s decision on this matter for years to come, if for no other reason than that it makes up most of the text of his arguments. He spells out at length the reasons why the specific issue of setting national standards for carbon pricing rises to the level of a “national concern,” something that the provinces cannot deal with on their own or co-operatively. For Ontarians, it’s worth noting that the court gives some weight to the fact that several provinces — including this one — actually did substantially reduce their greenhouse-gas emissions after 2000, only to have that success overwhelmed by growing emissions from Alberta and Saskatchewan. When the chief justice says that provinces can’t really coordinate national GHG reductions amongst themselves, he’s got historical facts on his side.

But it doesn’t take much to imagine how the power to set “minimum national standards” could expand substantially to encroach on other provincial matters. Indeed, we’re living through another example right now: precedent already recognizes that infectious-disease control could be a matter of national concern, and we know that certain labour and housing standards — most obviously in places like long-term-care homes — directly affect how rapidly infectious diseases such as COVID-19 spread. People who want to see the federal government impose strong national standards on the LTC sector don’t have to work very hard to see reasons for hope in the majority opinion; but for conservatives, it’s just as easy to be alarmed by the possibility of power accumulating in Ottawa at the expense of the provinces.

The conservative arguments against the carbon tax weren’t just about federalism, either. There were also substantial arguments that the law concentrated too much power in the hands of the federal cabinet, rather than in MPs in their role as legislators. The federal law allows the cabinet to change the level of the carbon tax (technically a “regulatory charge”) without asking MPs for a vote, as happens for normal taxes. Section 168 (4) of the GGPPA also allows cabinet to make regulations that conflict with the text of the act itself, something described by both the dissenters and the majority as a “Henry VIII clause” because of the power it gives cabinet. Once again, the dissenting judges lay out the arguments against this concentration of power in the cabinet forcefully, but once again the majority rebuffs them. As with the national-concern doctrine, the issue is less about this specific case and more about the precedent it sets: the court could have imposed clear guardrails on the power of Parliament to delegate its powers to cabinet, but it didn’t do that here.

So the opponents of the carbon tax didn’t just lose the argument; they lost so comprehensively that there’s fair reason to argue that they’ve opened the door to further concentration of political power in the federal Parliament generally and the Prime Minister’s cabinet specifically. This was a realistic possibility from the beginning — one far more likely than the outcome the conservative side wanted: judicial nullification of the carbon tax. There was always far more downside risk to a court challenge than there was potential upside: the best-case scenario for the antis in court was that the feds would be required to replace the existing carbon tax with something that was functionally identical but less constitutionally offensive.

Conservatives can rail against the Liberals or against the court but what they ought to do is see this for what it is: a total, comprehensive failure on the part of right-leaning governments in three provinces. It was not, after all, the Supreme Court that sought out this case, or the provincial courts of appeal that heard it first. It wasn’t the federal government or the Liberal Party of Canada that put this matter before judges. It was three provincial premiers, who thought it made for good politics to be seen to be trying to fight a carbon tax even as every expert warned their chances were slim to non-existent. For their trouble, they’ve now helped constitutionally entrench more federal power, not less.

The alternative to this very lengthy and public and regrettable temper tantrum would have been to do nothing and let the courts remain silent on climate policy — conservatives would have been better off. If Canada’s right can’t make peace with the carbon tax (an idea invented by conservatives to minimize state regulation of pollution, lest we forget), they can at least keep the battle where it belongs: in election campaigns. Voters may yet choose to hand government to a party that wants to eliminate the carbon tax. If that happens, at least the constitutional dangers will be kept to a minimum.

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