Federal government could tell you when to drive if carbon price law stands, court told

By | April 15, 2019

The federal government will end up with the power to regulate almost every facet of life — such as when you can drive or where you can live — if its law aimed at curbing harmful greenhouse gas emissions is allowed to stand, Ontario’s top court heard Monday.

Ottawa’s climate change law is so broad, a lawyer for the Ontario government told the start of a four-day Appeal Court hearing, that it would give the federal government powers that would be destabilizing to Canada in the name of curbing the cumulative effects of global warming emissions.

“They could regulate where you live. How often you drive your car,” Josh Hunter told the panel. “It would unbalance the federation.”

In his submissions, Hunter was categorical that Ontario’s constitutional challenge to the federal Greenhouse Gas Pollution Pricing Act was not intended to be a debate on the realities or dangers of global warming.

What’s at stake, he said, is which level of government has the power to deal with the problem.

The federal government says its carbon tax is a way to curb greenhouse gas emissions. In this photo, the steel mills on the Hamilton waterfront are shown. (Nathan Denette/The Canadian Press)

The case is being heard before the panel of Ontario’s Court of Appeal. In a rare move, the court has allowed cameras into the courtroom so the proceedings can be streamed live.

“Which measure is the best measure — the most efficient measure — is best left for legislatures to decide,” Hunter said. “Which legislature? That’s what we’re here to decide.”

Carbon tax burdens ordinary people, lawyer says

The federal government law that kicked in on April 1 imposed a charge on gasoline and other fossil fuels as well as on industrial polluters. The law applies only in those provinces that have no carbon-pricing regime of their own that meets national standards — Ontario, Manitoba, New Brunswick and Saskatchewan.

The Liberal government, which is due to make its submissions on Tuesday, insists its law is an appropriate response to the nationally important issue of climate change. It maintains the legislation was designed to “fill in the gaps” where provincial measures aren’t up to snuff. The aim, the government says, is to cajole people into changing their behaviour.

The federal law, Hunter also said, puts a “tax” on ordinary people every time they drive to work or heat their homes, which he said was too much of a burden.

A worker fills up a jerry can with diesel gas in Toronto. ​​​​​​​Josh Hunter, a lawyer for the Ontario government, says Ottawa’s climate-change law puts a ‘tax’ on ordinary people every time they drive to work or heat their homes, which he said was too much of a burden. (Christopher Katsarov/The Canadian Press)

As the justices pointed out, Ottawa is promising to return the money it collects to people in the affected provinces to offset the charge.

Hunter, however, said the rebates — via the federal climate action incentive — flow to everyone in the impacted province regardless of whether they drive at all, for example.

“It’s not just that you get back what you give,” he said.

Province developing made-in-Ontario plan, lawyer says

Progressive Conservative Premier Doug Ford insists Ontario can curb greenhouse gas emissions on its own and has already taken significant steps to do so.

Those steps, Hunter told the court, include shutting down coal-fired power plants — a measure in fact taken by the previous Liberal government — which has sharply reduced the province’s harmful emissions.

“Ontario is further ahead than all the other provinces,” Hunter said. “[But] none of those [steps] count towards determining whether Ontario has a stringent plan.”

In addition, he said, the province is developing a “made-in-Ontario environmental plan” that is still under consideration.

Ontario’s Progressive Conservative government is arguing that the federal Liberal government’s carbon tax is unconstitutional. (Christopher Katsarov/The Canadian Press)

Fourteen interveners, including provinces such as Saskatchewan and British Columbia and Indigenous organizations who point out they are acutely vulnerable to global warming, as well as business and environmental groups, will get their say over the course of the hearing.

After it was elected last June, Ontario’s Progressive Conservative Party swiftly scrapped the previous provincial Liberal government’s cap-and-trade program. The move led to Ottawa imposing a carbon tax on the province.

Ontario, with the help of Saskatchewan, launched a legal challenge last fall against the tax applied to gasoline, light fuel oil, natural gas and propane. The province has also joined Saskatchewan’s case as an intervener. 

Earlier this month, Ontario Environment Minister Rod Phillips reiterated his issues with the carbon tax, saying he believes the province must address climate change but not through a levy. He has touted Ontario’s own plan, which the Ford government unveiled last November. 

Saskatchewan issued its own court challenge against the carbon tax in February. During the proceedings, Canada argued its framework is a regulatory charge, not a tax, and so it has jurisdiction because greenhouse gas emissions are a matter of “national concern.”

A view of the outside of the Ontario Court of Appeal in Toronto. Interested Canadians have a rare opportunity this week to watch Ontario’s top court sort out a federal-provincial legal battle over carbon pricing. It is the first time in more than a decade cameras are being allowed in the Court of Appeal to live stream a hearing. (Colin Perkel/The Canadian Press)