Alberta argues federal carbon tax is unconstitutional, prevents provinces from tailoring climate policies

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Alberta’s United Conservative government concedes that carbon taxes can be effective in curbing greenhouse gas emissions, but argues in court documents that the federal government’s carbon-pricing system is unconstitutional and prevents provinces from tailoring climate policies to reflect their own circumstances.

Premier Jason Kenney’s government has asked the Alberta Court of Appeal to consider whether the federal carbon-tax regime is constitutional, as it hopes to succeed where Ontario and Saskatchewan have so far failed. Courts in those provinces recently issued decisions upholding the federal carbon tax, although the Supreme Court of Canada will ultimately settle the issue.

In court documents filed on Friday, the Alberta government says it takes climate change seriously but argues a carbon tax that targets Alberta consumers and the province’s resource-dependent industries is not only harmful but also ineffective.

"Just as there is no single global solution to the problem, there is no reason there must be a single integrated Canadian solution, particularly given the vast disparity in local and economic circumstances in different provinces across Canada,” the province says in its factum.

The province also argues the federal tax represents an “unwarranted and unprincipled expansion” of Ottawa’s powers and says the Ontario and Saskatchewan court decisions were simply wrong.

Opposition to the federal carbon tax was a significant issue in Alberta’s recent provincial election, as Mr. Kenney listed it among his grievances with the federal Liberal government. He promised to kill the provincial carbon tax, brought in by the previous NDP government, and challenge the federal tax in court.

Alberta stopped collecting its retail carbon tax on products such as gasoline and natural gas at the end of May, prompting Environment Minister Catherine McKenna to announce that the federal tax would replace it as of Jan. 1.

The tax is also expected to be a significant issue ahead of the October federal election, as Conservative Leader Andrew Scheer promises to repeal the federal carbon-pricing system.

Instead of a retail carbon tax, the Alberta government plans to focus on taxing large industrial facilities and use the revenue to fund technology aimed at reducing emissions. In fact, the province has taxed industrial emitters since 2007, which it touts in its court filing as the country’s first carbon tax.

The province argues in its court filing that because of its emissions-intensive economy, focusing on industry is a far more effective way to bring down emissions in Alberta than taxing consumers. At the same time, it says the provincial government, not Ottawa, is best positioned to determine how to tax industrial emitters in a way that won’t hurt the economy.

The Alberta government argues the province’s retail carbon tax simply did not work, reducing greenhouse gas emissions by two megatonnes, compared with the province’s total emissions of more than 270 megatonnes as of 2017.

And it says the fact that Canada accounts for less than two per cent of global emissions further undermines the federal government’s approach to the issue.

Amir Attaran, a law professor at the University of Ottawa who represented the Athabasca Chipewyan First Nation in the Saskatchewan and Ontario cases, said the Alberta government’s court filing doesn’t add anything significant that hasn’t already been argued in the other two provinces.

Dr. Attaran said the Alberta government should focus instead on intervening in Saskatchewan’s appeal to the Supreme Court of Canada.

Or better still, he said, acknowledge that a federal carbon price is likely permanent.

“Alberta’s engaged in some dangerously wishful thinking here,” he said. “It would be best for the province, because they are such a large emitter, to begin the work to deal with a federal carbon price in earnest, as if it’s going to be permanent. Because it probably will be.”