Alberta: Fighting to uphold federal jurisdiction over climate change action

Reference re Greenhouse Gas Pollution Pricing Act
Photo by Emily Chan
Program area – Climate Status: Closed
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Climate change is a national emergency, and Ecojustice is fighting to ensure the federal government has the ability to respond to that emergency.

The law is clear: Protecting the environment is a shared federal and provincial responsibility. Provinces across Canada should be required to work towards implementing a fair system that holds polluters to account for putting communities and the climate at risk by increasing greenhouse gas pollution in our atmosphere.

Canada won’t be able to meet international commitments to reduce greenhouse gas emissions if provinces are allowed to opt out of taking action. Climate change will affect the health and security of all Canadians, and there’s only a short window of time left to reduce greenhouse gas emissions. Everyone in Canada deserves the security of stable climate.

In December 2019, Ecojustice lawyers, representing the David Suzuki Foundation and the Athabasca Chipewyan First Nation, intervened in a constitutional reference case in the Alberta Court of Appeal.

The question posed to the court was whether the federal government’s Greenhouse Gas Pollution Pricing Act is unconstitutional.

On February 24, 2020, the court issued a disappointing ruling that to the federal government does not have legal authority to implement a national climate policy, including pricing carbon pollution. This decision remains an outlier among the precedents set by the courts in Ontario and Saskatchewan. (Court of Appeal of Alberta: Reference re Greenhouse Gas Pollution, 2020 ABCA 74.)

We are representing the David Suzuki Foundation and the Athabasca Chipewyan First Nation because we believe that climate change is a national emergency. When the provinces fail to act, the federal government must be empowered to take action to address the climate emergency. Moreover, Indigenous peoples’ constitutionally-protected rights demand that all levels of government take steps to protect their traditional ways of life from the worst impacts of climate change.

Ecojustice lawyers, on behalf of their clients, intervened in constitutional references brought by Ontario and Saskatchewan. In both cases, the lower courts affirmed the federal government’s jurisdiction to introduce and implement climate solutions — including its ability to set a minimum national price on greenhouse gas emissions.

What does this outcome mean?

While the court’s decision is disappointing, it is an outlier that does not change the fact that we are in a climate emergency that will require urgent action by the federal government, including enshrining ambitious climate targets in law.

The courts in both Saskatchewan and Ontario have upheld the constitutionality of the Greenhouse Gas Pollution Pricing Act and Canada’s authority to use nationally coordinated efforts to combat the climate emergency, and in March 2020, this issue will head to the Supreme Court of Canada for a final showdown.

Key developments

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