The Ontario government says Ottawa’s plan to reduce greenhouse-gas emissions could lead to the regulation of “all human activity,” including how people drive or where they live, as the province’s lawyers pursue a court challenge of the federal carbon tax.
The reference case is not, however, about whether climate change is real, but rather whether Parliament has the constitutional authority to impose its carbon-pricing scheme on provinces, government lawyer Josh Hunter argued on Monday, the first of a four-day hearing at the Ontario Court of Appeal in Toronto.
“Action does need to be taken, Ontario has taken action and Ontario is continuing to take action," Mr. Hunter said.
“What this reference is about is whether Parliament can impose its solution to the problem on the provinces, or whether in a federal country the provinces have the flexibility under our Constitution to choose what best meets their local circumstances as they work together to combat climate change.”
He said the province’s constitutional challenge to the federal Greenhouse Gas Pollution Pricing Act centres around determining where federal powers end when it comes to the cumulative effects of climate change.
“Regulating greenhouse gases would give Parliament the power to regulate … all activities that cause greenhouse-gas emissions," he said. "That means basically all human activity, because almost everything humans do has an impact on greenhouse-gas emissions: how they drive, where they live, how they heat their homes.”
Mr. Hunter was interrupted at times by the five-justice panel who are reviewing the case, asking what would happen if a province decided to do nothing, thus undermining the efforts of the others.
“It’s a choice of having a national solution, or no solution, because without a national solution, an individual province or provinces are free to do whatever they want," Justice Robert Sharpe said.
Mr. Hunter countered that every province is taking action on climate change. “Quite frankly they’re responsible for their local electorate and their local electorate demands that,” he said.
The federal law that kicked in on April 1 imposes a charge on gasoline and other fossil fuels as well as on industrial polluters. The law applies only in provinces that have no carbon-pricing scheme that meets national standards – Ontario, Manitoba, Saskatchewan and New Brunswick.
Saskatchewan has already challenged the tax in its court of appeal, backed by Ontario and New Brunswick, and Manitoba recently announced it is also launching a legal challenge.
The federal Liberal government, which is due to make submissions on Tuesday, insists its law is an appropriate response to the nationally important issue of climate change. In a statement, federal Environment Minister Catherine McKenna said it’s “disappointing” that Ontario chose to “spend millions of taxpayers’ dollars fighting climate change action in court.”
“A legal challenge is not a substitute for a serious climate plan,” she said.
Ontario Environment Minster Rod Phillips said the Progressive Conservative Party campaigned on using all tools at its disposal to fight the federal government’s carbon tax. He would not tell reporters on Monday how much the court battle was expected to cost Ontario in legal fees, noting it was just the first day.
“Unfortunately, this cost is necessary,” Mr. Phillips said. “… We’re going to use the tools we need, including in court. And we’re certainly going to be transparent after about the cost of that.”
PC Premier Doug Ford has said Ontario can curb greenhouse-gas emissions on its own and has already taken significant steps to do so.
Those steps, Mr. Hunter told court, include shutting down 19 coal-fired power plants – a measure taken by Ontario’s previous Liberal government – which has sharply reduced the province’s harmful emissions by 22 per cent.
In addition, he said, the province is developing a “made in Ontario environmental plan” that is still under consideration. The provincial proposal is broadly similar to Ottawa’s regulated standards for large emitters, which essentially sets a threshold based on industry averages above which a facility’s emissions are taxed.
With a report from The Canadian Press and Jeff Gray
Laura Stone