Jordan Heath-Rawlings: Since it was first proposed by the federal Liberal government, never mind mandated and implemented, a carbon tax has been one of the most divisive political issues in Canada. The tax has faced any number of challenges. Some of them public protests, some of them just angry opposition campaigning, some challenges from provincial premiers railing against it, or even printing up stickers and demanding gas stations display them on the pumps. And, of course, the heart event was always a legal fight. One that would in the end finish in Canada’s highest court on Thursday.
News Clip: Breaking news from the Supreme court of Canada this morning. Our country’s top court has ruled the federal carbon tax is entirely constitutional. This ruling goes beyond just finding the law constitutional. In fact, the majority of justices declare that climate change is real and a threat to Canada and the world.
Jordan Heath-Rawlings: So the carbon tax stays, but what does this ruling actually mean for Canadians and for the climate? What does it permit and what doesn’t it cover? Does the opposition to the carbon tax have any more options? Or is this truly the end of the line? And how will this change– or not– the cost or the rebate that you get, the tax’s ability to curb emissions, or, frankly, because we know it’s coming, the next election? Because something tells me that even if Canada’s highest court is done with this fight, Canadians aren’t. I’m Jordan Heath-Rawlings. This is The Big Story. Fatima Syed is an occasional guest host of this podcast, true, but also a reporter who works on the climate file, including on this ruling, for our friends at the Narwhal. Hello, Fatima.
Fatima Syed: Hi, Jordan. It’s good to be back.
Jordan Heath-Rawlings: It’s good to have you back so soon after you sat in my chair. But why don’t you start, in the context of the file that you’ve covered for a long time, how big was this ruling today?
Fatima Syed: I’ve been saying this a lot, but today was a total Whoa day. As a reporter, you kind of prepare for the worst possible outcome. So what happened was just bigger and more impactful than I could have imagined. So I’m really excited to dig into it with you.
Jordan Heath-Rawlings: Okay, so why don’t we do the, you know, treat me like I’m six thing? Because I think the carbon tax especially is a pretty complicated policy, and now we’re talking Supreme Court challenge to it and a big old ruling. So why don’t you explain what the challenge was that went to the Supreme Court, and how they ruled, and why?
Fatima Syed: Okay. Deep breath. Stick with me, everyone. So there’s a little bit of history here to get into, and I’ll keep it brief. Around 2018 Canada’s provinces started having very different opinions on how best to tackle climate change. What happened is that we were all on the same page. We all believed that carbon pricing, which is when you literally put a fee on the purchase and use of fossil fuels, whether it’s by an industry or consumer, we all believed that that was the best way to tackle climate change. But in 2018, a series of Conservative governments got elected across this country. Ontario saw the election of Premier Doug Ford. Alberta saw the election of Premier Jason Kenney. And that shifted the balance, because these Conservative governments were running on an anti– what they called “carbon tax.” They believed that the carbon tax would destroy jobs, would hurt their provincial industries, and would be a cost– an undue and unfair cost on families. The same year, the federal government enacted legislation to put this price on pollution inaction. The concept was that if a province did not have an effective climate plan that included a price on pollution that would strongly reduce emissions in their region, then the federal government would intervene and impose their own price on pollution. With me so far?
Jordan Heath-Rawlings: Yes. That much I knew, but what I want to know is where the challenge comes from?
Fatima Syed: So, after these governments got elected, the federal price on pollution came into action in Ontario, Saskatchewan, Alberta, and New Brunswick, where the federal government decided that they did not have good enough climate plans. When they did that, these provinces were mad. They were like, you can’t impose a price on pollution in our province. We have jurisdiction. We get to control how we’re going to tackle the environment and climate change. That’s our authority. They went to court to fight the federal government on this. When they went to court, we got a string of very different reactions from the courts. Ontario said the federal government absolutely has the authority. Saskatchewan said the same thing, that the federal government has the authority. Alberta said the federal government does not have the authority to impose a price on pollution. So with the split decision in all provinces, and very different opinions, all three cases were then appealed to the Supreme Court of Canada, who heard the case last fall in 2020. And today we got the decision, and it says that the federal government absolutely has the authority to tackle climate change through carbon pricing.
Jordan Heath-Rawlings: So, what does that decision mean practically, I guess, first? We’ll definitely talk about the big picture, but are these prices on pollution or carbon taxes already in place and this means everything stays the same? Is there anything that– any pieces that have to move based on this ruling?
Fatima Syed: So it is a little complicated and the reason is because it all depends on how provinces are going to react. It should be noted that the Supreme Court’s ruling was split. There were six justices in favour of the federal government’s price on pollution, and three against. The six in favour defined a very careful relationship between provinces and the federal government when it came to climate change measures. They said, according to the evidence that they had seen, provinces were not capable to establish effective standards to reduce greenhouse gas emissions. And the reason is because they found that there was a history of provinces opting out from climate measures. So we’ve had several moments in the past where we’ve tried to come together as a country to tackle climate change. And every time there’s been one province or two or three that has decided that no, we’re not going to go along with this. The Supreme Court of Canada’s found that that was hindering Canada’s ability to tackle what they described as an existential threat to human life in Canada and around the world. First of all, no court in Canada, or the world has ever used such strong language to define climate change. That is really important. The existential aspect of this threat was defined in very strong, very clear, very blatant terms. What was also defined was that everyone’s on board that climate change is a problem we need to tackle. The issue at hand was the provinces could not come together to tackle it. And all the federal government is trying to do, according to the Supreme Court, is ensure that if there is a province that is not acting as effectively as it could, they can impose this price on pollution on them. So they’re sort of filling a void to ensure that there is no, what they call, carbon leakage. Because there’s no boundaries to carbon emissions, as we know. Right? So if a province decides not to act, that means that Canada is going to fail in meeting its international obligations. And then the world’s going to get hurt because we’re not doing enough to tackle climate change. It’s just harm across the board. And that’s all the Supreme court said, that the federal government can step in if a province is failing to act effectively in setting a carbon price on pollution. The reason why they’re focused on carbon price is because the Supreme Court is also identifying carbon price as the best way to tackle climate change based on the evidence that they’ve seen.
Jordan Heath-Rawlings: So I’m not a legal expert, but that sounds like a pretty full-throated endorsement of this strategy that the federal government was looking for.
Fatima Syed: It absolutely is. It’s very clear cut and it’s very comprehensive and it provides certainty in a conversation that has so far included, a lot of politics and back and forth and uncertainty. Having said that, not to confuse you or your listeners, Jordan, there were three justices who don’t agree with this opinion. Those three justices said that they are worried that if the Supreme Court allows the federal government to do this, then there may be nothing stopping the federal government from using this power to intervene in other areas that are under provincial jurisdiction. Think healthcare, for example. There’s a pandemic going on. There’s a lot of chatter right now among people who believe that, you know, what’s to stop the federal government from using this as precedence for creating standards for healthcare that all provinces have to abide by? So that is a fear that exists. But the majority decision is very cautious in its approach and is saying that a federal government can only intervene if a province fails to enact proper climate legislation. And that’s really important to remember. This is a ruling about climate change. It is a ruling specifically about a price on pollution being used to tackle climate change. And nothing more.
Jordan Heath-Rawlings: So the chances of it being used as precedent down the road for something like healthcare, education, they would have to find a way then to tie it back to climate change?
Fatima Syed: Yeah. They would have to find a way to prove the same urgency and reasoning that the federal government was able to do in this case for another policy area, such as healthcare or education. This doesn’t open the door immediately for any of that to happen. Because like I said, it’s very specifically tailored.
Jordan Heath-Rawlings: So in terms of what exists now, does this ruling mean that every price on pollution or carbon tax that is currently in place remains in place? And presumably the provinces that opposed it now are back to kind of the drawing board where they can either drop their own price on pollution or the federal government will do it for them?
Fatima Syed: It does in a way because the federal government’s legislation holds. So all provinces now have to comply with it because there’s no reason not to, if that makes sense? The Supreme Court is the highest court in the land and their decision is final. And there’s no way that provinces can contest that legally. Of course, they can still sort of continue the political football over it. And, you know, continue to say that this is going to hurt our industry, this is going to hurt residents in our province, and so forth.
Jordan Heath-Rawlings: I feel like that will continue.
Fatima Syed: Oh, for sure it’ll continue. And we saw it today. You know, Alberta, Premier Jason Kenney stood up and said that we are very disappointed and this is going to hurt Albertans. And, you know, we have to figure out what to do next. Ontario, you know, conveyed similar sentiment. However, I am encouraged by Saskatchewan Premier Scott Moe, who had a very long press conference just before we sat down to record and basically said that, look, the game is over. There’s no way point fighting with the referees now. So let’s figure out a way to move forward. And as much as he conveyed his disappointment in the decision and his dismay that the federal government created this price on pollution unilaterally without any provincial sort of discussion and so forth, that’s his position, he also released a sparing details about a made-in-Saskatchewan climate plan, which does include a price on fuel, which is a huge Whoa moment for me. Like on the day, the Supreme Court says that carbon pricing is constitutional, Saskatchewan concedes and says, okay, let’s figure out how to work together and abide by the legislation. But Premier Moe also, you know, sent the message to Ottawa and said, look, we’re willing to work collaboratively, but we hope that you’ve also learned lessons from this. We hope you’ve learned that, you know, it is not effective to work unilaterally when it comes to big issues like this, that you have to work with provinces, and that moving forward they hope that they can, you know, have more fruitful and constructive discussions. I’m encouraged by a statement like that. It means that there is room to adapt and change if we sort of, you know, figure it out. And if we all come to the table and talk about it properly, without, you know, hardcore positions without, you know, stubbornness and without any, I hate to say it, but without any political drama. Climate changes is above politics, right? And one would hope that this decision will give way to more conversations like that.
Jordan Heath-Rawlings: I’m glad you mentioned that because I wanted to talk about what this means in the bigger picture. And is this the final nail in the coffin, as you mentioned, an now, you know, we can talk about this like adults? I’m not holding out super high hopes for that, but it does feel like, you know, the momentum might’ve shifted with this ruling. And I want to know if you’re hearing that from folks you talk to who work on the climate crisis in Canada? Cause you talk to a lot of them.
Fatima Syed: Look, I know that, you know, people who are climate activists, who are climate experts, who are in the legal field are seeing this as a huge win. You know? This is a piece of legislation that is going to be cited time and time again, every time an issue of climate change hits the courts. And it is a piece of legislation that I think internationally will be recognized, because there are many other countries who are considering carbon pricing plans that will now look at the Supreme Court decision and maybe use that as a case to implement it. So there is certainly a victory to celebrate here. But I will also say that there is a group of people who are more nervous about what this means moving forward. We have an opposition, you know, Conservative leader Erin O’Toole, who has promised time and time again, including today, that one of his policies will be to scrap the carbon tax in favour of a different industrial emitter program that he hasn’t defined fully yet. I don’t know what that means moving forward. You know, come on another federal election next year, or whenever we’re going to have it, what would that mean? That, you know, we start again from scratch if a conservative government is elected? That’s a big question for me. But at the same time, I do think that the consensus on climate change and the wins on the climate change conversation are shifting and they have shifted massively during the pandemic. When, you know, the world suddenly stood still because we were all at home and we realized just how much harm we had done to the natural environment around us, we saw everyone from banks to corporations, to politicians pledge to, you know, do better and never let that happen again. We saw the election of. U S President Joe Biden, which was a reversal in so many ways of the climate direction one of the world’s biggest emitters was going to. What I think that means for Canada is that there’s no way an elected official can stand at a podium, look into camera, and say, that’s not the right plan. They have to present a plan that they think is better and why it’s better. Or they have to present an amendment to the plan that is before them and say, this is how it’s going to work for my province, this is the best way it’s going to work from my province. Because every province has a different industry and different requirements and different emission levels and so forth. So, yes, the premiers will still be saying that, you know, the carbon price that the federal government is imposing is unfair and so forth. And they will use this decision as a poster child for, you know, the independence that the constitution allows them to make decisions on any topic, from climate change to education. But they can no longer just, you know, say we don’t want that. They have to present another solution. And, you know, even in Alberta, Premier Jason Kenney’s comments, I notice that when he was asked, like, you know, will you now consider imposing a carbon price of your own? You know, tailored to Albertans? He didn’t say no. He said, I will come up with a plan that is best for Alberta. And maybe this is because I’m optimistic, but I like to think that if they lost the battle at the highest court of the land, then maybe this means that they’re going to start looking at avenues that work, and find ways to be collaborative. And that maybe the federal government will also realize that federalism is very fragile. This country is, you know, tied together by a very fine thread that can break at any point. And I’m hoping that both the federal government and the premiers of all our provinces can take the lessons that I am taking from this decision and apply them moving forward to build a constructive climate plan.
Jordan Heath-Rawlings: One last question, just because you mentioned it and you referred to perhaps the next election being next year, but it could also be next month. How does this ruling impact the next election? You mentioned that Erin O’Toole is still against a carbon price. What is the conservative plan? I know they just had a convention at which climate change was notable.
Fatima Syed: Yeah. So I think one of the things that play today is, you know, how does this play out if we have a different government? And we don’t know that fully, because we don’t know the full climate plan that a federal Conservative government would present to Canadians. But we do know that Erin O’Toole wants to create one. And he tried to sell his base on it. This past weekend, there was the annual Conservative Party Convention, and he tried very hard to say, look you know, we’re gonna create a climate plan and I hope I’ll have your backing. Unfortunately, his base did not support him. They put forward a simple resolution, we believe climate change is real and the Conservative Party is going to act on it. Just two simple sentences. 54% of the Conservative Party’s base voted against this resolution. So Erin O’Toole has an uphill battle because if he is serious, and he does want to do something about climate change, even if it’s not the price on pollution, if he has a different plan, he has to A) sell it to Canadians and explain to us why it’s better than the carbon price on pollution, which is a Nobel prize-winning idea, has been validated by the Supreme Court now, and you know, that’s going to be the first uphill battle. The second one will be convincing his base that this is an issue that they do need to tackle seriously. If I was on Erin O’Toole’s team, my advice would be, if I were so bold to give it talk to Premier Scott Moe. Because the way he handled his response today was quite frankly very impressive. And I am eager to learn more about the made-in-Saskatchewan climate plan and see how it evolves after this two year legal battle that we’ve had and in this very groundbreaking Supreme Court decision.
Jordan Heath-Rawlings: Fatima, thank you for explaining this to me and for all your work on this file, it’s appreciated.
Fatima Syed: Thanks for having me, Jordan.
Jordan Heath-Rawlings: Fatima Syed, a climate reporter, a reporter on many things, and also of course, a guest host of this podcast. That was The Big Story. You can find more at thebigstorypodcast.ca. Talk to us on Twitter at @thebigstoryfPN. Hit us up via email, firstname.lastname@example.org. Find us, rate us, review us, follow us, subscribe to us, whatever you want to do in whatever podcast app you want to do it, and do it with The Big Story. Stefanie Phillips, Claire Brassard and Ryan Clarke produce The Big Story I’m Jordan Heath-Rawlings. Thanks for listening. And we’ll talk on Monday.
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