The Supreme Court rules Canada’s carbon price is constitutional. It’s a big win for Justin Trudeau’s climate plan

Provinces that resisted and maligned the policy as a “job-killing tax on everything” will now have to follow Ottawa’s lead as the Liberal government prepares to raise Canada’s carbon pricing floor from the current $30 per tonne to $170 per tonne in 2030.

“Today, the issue around whether carbon pricing forms a part of Canada’s plan with respect to reducing emissions is over,” federal Environment Minister Jonathan Wilkinson said at a press conference in Vancouver Thursday.

Citing widespread expert opinion that carbon pricing is the most cost-effective way to reduce emissions that cause climate change, Wilkinson called on federal Conservatives to drop their “bizarre” opposition to the policy and “move beyond a conversation about whether climate change is real.”

That was a reference to the party’s policy convention last weekend, when Conservative delegates rejected recognizing “climate change is real” even after party leader Erin O’Toole declared that it is.

In a statement Thursday, O’Toole repeated his promise to craft a “comprehensive” climate plan but stuck to his pledge to scrap “Justin Trudeau’s Carbon Tax” if his party wins the next federal election.

“The Supreme Court recognized that policies related to emission reduction touch on federal and provincial jurisdiction. Conservatives prefer a collaborative approach to tackling climate change to make progress while also helping maintain a strong economy,” O’Toole’s statement said.

Other opponents of the federal carbon price, however, were begrudgingly accepting the policy’s new-found legal legitimacy hours after the Supreme Court published its decision.

In Regina, Saskatchewan Premier Scott Moe said the ruling doesn’t change his view that the carbon price is a “blunt, ineffective instrument” that “kills jobs.” But he acknowledged the legal fight is over, and said his government will now design its own carbon price for fuel in the province to replace the federal levy that Ottawa imposed in 2019.

Alberta Premier Jason Kenney said the Supreme Court decision “undermines our constitutional system” and predicted — based on O’Toole’s promises — that the federal carbon price will be “on the ballot” in the next election.

Even so, Kenney did not rule out creating a made-in-Alberta levy on fuel now that the province can’t get away from the federal minimum carbon price.

“The key criteria will be which approach imposes the least damage on jobs and Alberta’s economy,” he said.

The Supreme Court case hinged on whether Ottawa could impose a minimum carbon price under the “national concern” doctrine of the Constitution. In a split, 6-3 decision, a majority of Supreme Court justices agreed that using a carbon price to reduce greenhouse gas emissions is a legitimate national concern under the Constitution’s “peace, order and good government” clause.

This was in part because of the danger of climate change, which Chief Justice Richard Wagner wrote “poses a grave threat to humanity’s future.”

Writing for the majority decision, Wagner said provinces have limited abilities to address this threat on their own. He also wrote that Canada’s overall ability to confront climate change would be hampered if provinces could refuse to participate in carbon pricing to reduce emissions.

This means that Ottawa is justified in potentially interfering with a province’s “preferred balance between economic and environmental considerations,” Wagner wrote, because of the harm that would occur without a national response to the threat of climate change.

“This irreversible harm would be felt across the country and would be borne disproportionately by vulnerable communities and regions in Canada,” he wrote. “The impact on those interests justifies the limited constitutional impact on provincial jurisdiction.”

Three justices on the court disagreed with the majority decision, however, including two that sided completely with legal challenges from Alberta, Saskatchewan and Ontario in declaring Ottawa’s carbon price unconstitutional.

Justice Malcolm Rowe concluded the national concern doctrine should only be used as a “power of last resort” and that regulation of natural resources is an unambiguous provincial power under the Constitution.

His colleague Justice Russell Brown added that the majority decision risks creating a “model of supervisory federalism” that opens “any area of provincial jurisdiction to unconstitutional federal intrusion.”

The decision comes as the federal government prepares to unveil a new and more aggressive emissions-reduction target in time for U.S. President Joe Biden’s climate change summit on April 22. The government expects the Liberals’ revamped, $15-billion climate plan — which includes the significant increase in the minimum carbon price — will reduce Canada’s emissions to at least 31 per cent below 2005 levels by 2030.

Catherine Abreu, executive director of Climate Action Network Canada and member of the government’s net-zero emissions advisory panel, said in a statement to the Star that the Supreme Court decision is like “a love letter to the planet” that protects Canada’s ability to confront the climate crisis.

“It’s time for every order of Canadian government to stop partisan politicking and come together in a spirit of co-operative federalism on this critical issue,” she said.

“Carbon pricing is an essential element of any climate plan that will finally get Canada to our fair share of the global effort.”