A New Brunswick environmental group told Alberta’s top court that the federal government should be allowed to set a minimum price on carbon to protect against the climate emergency.
The Alberta Court of Appeal heard the case from December 16–18, which pitted Canada against Alberta.
Canada’s position was that climate change is a national concern, giving it the power to set a minimum price on carbon. Alberta’s stance was that a minimum price on carbon is unconstitutional because it interferes with provincial powers. There were intervenors on both sides, with the New Brunswick Anti Shale Gas Alliance (NBASGA) joining Canada under an umbrella of environmental groups called Climate Justice.
NBASGA spokesperson Jim Emberger explained that the group got involved as part of its mandate to promote the transition to clean energy and combat climate change.
Canada regulates greenhouse gas emissions through the Greenhouse Gas Pollution Pricing Act (GGPPA). Lawyers for Canada argued that climate change is a matter of national concern, and “an urgent threat to humanity” and that emissions are not confined by provincial borders, giving it the power to put a minimum price on carbon. They added that the federal minimum price would still enable the provinces to regulate other aspects of carbon pricing.
Alberta lawyers argued that a minimum price on carbon would unconstitutionally tread on provincial powers to regulate natural resource development and the generation of electricity. They argued that allowing Canada to use “national concern” for carbon pricing would open the door to Canada treading on other areas of provincial jurisdiction. Alberta was joined by Ontario, Saskatchewan and New Brunswick as intervenors.
The constitutionality of the GGPPA was also in Canadian courts in May in Saskatchewan and June in Ontario this past year. Both ruled in favour of Canada in split decisions.
“The climate emergency is a situation that has never been faced by any government until now and certainly wasn’t envisioned by the framers of our Constitution. It is a national concern and the national government should have the tools to address it,” explained Emberger.
Climate Justice also raised two additional issues to support the Canada’s jurisdiction on carbon pricing. One was the precautionary principle which states that the government must take cost effective measures to combat a serious threat of irreversible damage, even if there isn’t full scientific certainty. The second was the obligation of the government under section 7 of the Canadian Charter of Rights and Freedoms to take action to prevent endangerment to the life of people in Canada as a result of climate change.
The federal government’s regulations set a limit of carbon emissions at 420 tonnes of CO2 per gigawatt hour. The price of carbon for exceeding the limit is $20 per tonne exceeding the limit in 2019, rising by $10 each year to $50 per tonne in 2022.
Emberger considers carbon pricing one of the effective tool available to respond to the climate emergency, but views the court case as more useful for establishing the federal government’s jurisdiction to take action on climate change.
“We’re under no illusion that the plan that Canada has now is sufficient to do the job … There are some people who say that (the carbon price) needs to be $250 – 300 per tonne … Why we’re in court is to establish the position that (the federal government has) the right to set minimum standards whether it’s carbon pricing or something else. That’s more our position than the fact that we think that this is going to be some silver bullet that’s going to solve our problems.”
The Alberta case came just days after the conclusion of the COP25 climate summit in Madrid, considered a failure by those who want meaningful action on climate change. UN Secretary General Antonio Guterres said he was “disappointed” by the results. There were no concrete commitments to reductions by countries there was no agreement on international carbon markets. Meanwhile, direct action environmental group Extinction Rebellion dumped horse manure outside the conference to protest the lack of meaningful action.
Emberger emphasized the warning by scientists that emissions have to reduced faster than previously called for. “We have to reduce by 7% per year. That’s more than anyone dreamed. But we have to find ways to do that.”
He sees the courts as the venue where action on climate change can be forced.
“It seems like right now that’s where the only action is. Governments around the world seem to be dropping the ball.”
Alberta’s top court judges expected that they would need at least a couple of days to reach a decision. The constitutionality of Canada’s carbon pricing will be at the Supreme Court of Canada in March 2020.
Asaf Rashid is a lawyer and long-time community organizer.