As part of the 2022 OBA Institute conference on February 3rd, 2022, Tamara Farber (Miller Thomson LLP, Partner) and Dina Awad (Dentons Canada LLP, Partner) presented an environmental case law update. The speakers selected a non-exhaustive list of ten cases from 2021 based on their relevance to the wide membership of the OBA Environmental Law Section. The selected cases are summarized below and are grouped in themes.
CONSTITUTIONALITY OF THE GREENHOUSE GAS POLLUTION PRICING ACT
In the highly awaited decision of References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, the Supreme Court of Canada (“SCC”) finally decided the constitutionality of the federal Greenhouse Gas Pollution Pricing Act (“the Act”). In this 6-3 decision, the majority upheld the constitutionality of the Act, finding that the Act falls within the federal government’s residual powers of Peace Order and Good Government (“POGG”).
Two of the four parts of the Act were at issue: Part I, which establishes a fuel charge applicable to producers, distributers and importers of carbon-based fuels, and Part II, which creates a pricing mechanism for industrial greenhouse gas (“GHG”) emissions. The majority held that the pith and substance of the Act went to “establishing minimum national standards of GHG price stringency to reduce GHG emissions”. The majority held this to be a matter of national concern, and therefore grounded in the federal POGG powers. The Act has an inherently national focus, because the purpose of the Act is to create a consistent pricing floor for GHG emissions across Canada. Further, the purpose of the Act is to do something that would be impossible for a province or territory to accomplish individually: to establish a binding national GHG pricing floor that is applicable across all provinces and territories, at all times.
Justices Brown and Rowe dissented on the basis that the Act was an improper exercise of the residual POGG powers. Justice Côté dissented in part, raising issue with the fact that the Act provided the federal government inordinate discretion, without any meaningful check.
The speaker, Ms. Awad, noted that it is worth paying attention to the language used in dicta regarding climate change. Chief Justice Wagner, writing for the majority, unequivocally described climate change as “an existential challenge” and “a threat of the highest order to the country, and indeed to the world”. The Chief Justice emphasized that the “undisputed existence of a threat to the future of humanity cannot be ignored” (para. 167).