The Supreme Court of Canada (the Court) has released a landmark decision upholding the constitutionality of the Greenhouse Gas Pollution Pricing Act (GGPPA), in a 6-3 decision with 4 sets of reasons.
The majority of the Court (Chief Justice Wagner and Justices Abella, Moldaver, Karakatsanis, Martin, and Kasirer) determined that the GGPPA “sets minimum national standards of GHG price stringency to reduce GHG emissions” (para 80). The majority found that Parliament has jurisdiction to enact the law as a matter of national concern under the peace, order, and good government (POGG) clause of section 91 of the Constitution Act, 1867.
The majority strongly endorsed carbon pricing as an essential legislative tool. It found that “[t]here is broad consensus among expert international bodies […] that carbon pricing is a critical measure for the reduction of GHG emissions” (para 170) and that the matter of the GGPPA “is critical to our response to an existential threat to human life in Canada and around the world” (para 171).
However, the means used in the GGPPA to implement carbon pricing in Canada evoked three separate dissents (Justice Côté dissented in part and Justices Brown and Rowe wrote separate dissents) that would have struck down the GGPPA on the basis of the breadth of discretion afforded to the federal Cabinet, the supervisory jurisdiction that it affords the federal government, and the application of the POGG jurisdiction and the national concern test.
A detailed bulletin to follow later.
WEBINAR: The Supreme Court of Canada’s Decision on Carbon Pricing: Outcomes and Implications
Date: March 30, 2021 Time: 3:00-4:00PM Registration: Online.
Resilient LLP and the International Emissions Trading Association (IETA) will co-host a webinar on the decision on Tuesday, March 30 from 3:00-4:00PM EDT. Lawyers involved in arguing the case will provide a briefing on the decision and discuss its significance for Canadian constitutional law and the implications for climate and energy policy in Canada.
A registration link and more information will be circulated with our detailed bulletin later today.
J. Gareth Morley, Legal Counsel, Attorney General of British Columbia
Josh Hunter, Deputy Director, Attorney General of Ontario
Lisa (Elisabeth) DeMarco, Senior Partner and CEO, Resilient LLP and Counsel to IETA
Katie Sullivan, Managing Director, IETA