11 July 2019: a short update on climate legislation in Canada

This recent Ontario Court of Appeal decision has the potential to create definitive clarity in the difficult subject of proper legislation and climate change. The Court found the Greenhouse Gas Pollution Pricing Act “constitutional” and within Parliament’s jurisdiction to legislate, i.e. to impose charges regulatory in nature, which are connected to the Act — and are not taxes.

The case itself deals with the validity of carbon pricing. The short background is that the Canadian federal government implemented carbon pricing and the Ontario provincial government appealed the decision saying that such a “carbon tax” infringed on provincial rights. They were overruled, with the Court of Appeal noting that climate change and therefore Greenhouse Gas (GHG) regulation is an issue of national concern.

This is one of the first serious discussion in any Canadian court (there was an earlier decision in Saskatchewan on the same issue which was not as well written) about climate change and the constitution, one that will inevitably go to the Supreme Court of Canada this or next year.

The first part of the decision (p. 3 onwards) does an excellent job of giving a background on GHGs and Climate Change and recognizes that combating climate change is a collective effort.

It is written in plain language and rather succinctly.

Having a decision like this signals that in future cases, Canadian courts hopefully will not have to grapple with the first hurdle of addressing climate change and the science behind it.

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