Constitutional Chutzpah? Alberta Court Of Appeal Finds Greenhouse Gas Pollution Pricing Act Unconstitutional

In the Reference re Greenhouse Gas Pollution Pricing Act1, a majority of the Alberta Court of Appeal (ABCA) diverged from both the Saskatchewan and Ontario Courts of Appeal (SKCA and ONCA, respectively), finding the federal Greenhouse Gas Pollution Pricing Act (the Act) unconstitutional.2 Appeals from the SKCA and ONCA decisions are scheduled to be heard by the Supreme Court of Canada (SCC) on March 23 and 24, 2020, and are expected to address arguments raised by the ABCA.

The Act

Two of the Act's four parts were at issue. Part 1 sets a fuel charge on products such as gasoline, natural gas, and propane. Part 2 limits greenhouse gas (GHG) emissions by large industrial emitters. The Act allows provinces and territories to establish their own plans to reduce GHG emissions, but also creates a federal backstop that applies if provinces and territories fail to enact a scheme that meets the federal standards.

Defending the division of powers

Writing for the majority, Fraser CJA emphasized that the Act's unconstitutionality has nothing to do with climate change and everything to do with Canada's constitutional framework and the division of powers between the federal and provincial governments. According to Fraser CJA, courts must be vigilant in safeguarding this division of powers, which ensures that provinces and their citizens control local matters that they are best equipped to handle, while serving as a check on federal control. Among the powers vested exclusively to the provinces is the power to regulate natural resources.

A matter of national concern or a "constitutional Trojan horse"?

As it did in the SKCA and ONCA decisions, Canada argued that the Act is constitutional because it falls within the national concern doctrine of Parliament's peace, order and good government (POGG) power. To determine if the Act satisfies the national concern test, courts must first characterize the impugned law's "matter," and then classify it within a legislative head of power. Fraser CJA reasoned that if the "matter" intrudes on an exclusive provincial head of power it fails this test.

In characterizing the matter, the majority of the ABCA found that both the SKCA and ONCA erroneously narrowed the Act's matter to make it constitutional. It found that the Act's "matter" is no less than the "regulation of GHG emissions," which it classified as an amalgamation of several exclusive provincial powers. Thus, the Court found the Act to be unconstitutional. If...