The Alberta Court Of Appeal's Decision On The Federal Carbon Scheme

On February 24, 2020 the Alberta Court of Appeal in Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 ruled that both the pricing charge on carbon-based fuels and the regulatory trading system applicable to large industrial emitters of GHG's were wholly unconstitutional. We now have courts of appeal in Ontario and Saskatchewan on the one hand, holding the federal government's carbon regulation scheme to be constitutional and the Alberta Court of Appeal on the other, holding the law unconstitutional. The Supreme Court of Canada will hear arguments in the spring to resolve this uncertainty. The issues will include the application and scope of matters of national concern, taxation, Canada's treaty obligations, and the scope of the province's jurisdiction over their natural resources, property and civil rights, proprietary rights and the management of public lands.

The majority reasons of the Alberta Court of Appeal offer a strong case for provincial rights. Three issues which are of particular interest include the following:

The National Concern Power

The majority reasons in the Alberta Court of Appeal set a more restrictive test for the federal government's ability to legislate in matters of national concern, thereby limiting the government's authority to legislate for the peace, order and good government of Canada outside of a national emergency .The federal power is limited according to the Court, to matters not specifically enumerated within the legislative heads of power of the Provinces, other than the Provinces' own residual authority to legislate in matters which are local and private within the province.

"[172] We have concluded that only when the "matter" would originally have fallen within the provinces' residuary power under s. 92(16) does the national concern doctrine have any potential application. Thus, we reject the proposition that the national concern doctrine opens the door to the federal government's appropriating every other head of provincial power under s. 92, s. 92A or under provincial proprietary rights under s 109 " Subsidiarity

The Court of Appeal's underlying motivation for a...