When the Supreme Court of Canada affirmed the constitutionality of the federal carbon tax more than a year and a half ago, it solved one immediate problem for the Liberal Party of Canada specifically and for environmentalists more broadly: it preserved, at the national level, one of the more important pieces of environmental legislation Canada had seen in a generation.
But that doesn’t mean there weren’t serious and substantial criticisms of the carbon tax and the specific ways the Liberals chose to implement it. Critics of the government warned that the Supreme Court had effectively blessed a law that expanded the power of the federal government at the expense of the provinces while simultaneously expanding the power of the executive (the prime minister and his cabinet) at the expense of Parliament (the House of Commons and Senate).
In recent weeks, however, the courts have issued a pair of decisions that suggest the federal judiciary took those warnings to heart and that federal judges aren’t prepared to let the real merits of environmental law be used as a crowbar against the structure of the Canadian constitution.
Starting with the country’s highest court: last month, the Supreme Court of Canada held in a reference opinion that the Impact Assessment Act — the federal law governing both environmental assessment and also Indigenous impacts of major construction works nation-wide — is unconstitutional insofar as it intrudes on provincial projects and other areas of provincial jurisdiction. As a reference opinion, the decision doesn’t automatically invalidate the federal law, but Ottawa has announced it will amend the legislation to comply with the ruling.
Chief Justice Richard Wagner, writing for the majority, explicitly referenced the previous decision regarding the carbon tax, saying in effect that the federal government shouldn’t have assumed that it had carte blanche to regulate anything it could hand-wave at and call “the environment.”
“While Canada asserts that it is simply relying on this Court’s prior holdings, it is, in substance, attempting to do an end run around this Court’s recent national concern jurisprudence,” Wagner wrote. The court specifically noted the concerns raised by Ontario, and other provinces, that the legal apparatus of the Impact Assessment Act allowed the federal government to drag out its own time limits, “sometimes indefinitely,” raising the possibility that a federal minister could kill a provincial project by putting it in a kind of permanent purgatory.
Ontario had also wanted to bring new evidence before the Supreme Court specifically about the application of the IAA toward Highway 413, the planned highway in the western GTA. The Ford government made the 413 a core part of its re-election bid, and highways have always been considered a purely provincial matter; Ontario argued that applying the IAA to this project was an example of precisely the kind of federal over-reach the provinces sought to quash. The court declined to hear Ontario’s evidence, but the Ford government got the result it wanted anyway.
More recently, a federal court struck down the federal legislation banning some single-use plastics. While the decision may not be as wide-ranging in its effects as the Supreme Court’s, it’s another case in which a judge reinforced some of the constitutional guardrails protecting the division of powers between the feds and the provinces.
Here, Justice Angela Furlanetto found that the federal government’s regulations banning single-use plastics exceeded its powers under environmental law and were “unreasonable and unconstitutional.” Furlanetto’s decision gets into what it means for the government to classify something as “toxic” under federal environmental law and when such decisions are reasonable — but also whether Ottawa can use its powers over criminal law to, in effect, regulate the plastics industry in the various provinces. That is to say, Furlanetto addressed not only the federal division of powers but also the overly expansive use of executive power by cabinet. On Monday, the federal government announced it would appeal the ruling.
In sum, the past few weeks have contained some good news for people worried that the precedent of the 2021 carbon-tax reference would see federal power, and the power of the prime minister and the cabinet, expand in new and unpredictable ways. They’ve been a bit more dismal, however, for those who were hoping to see the powers of asphalt-happy premiers and their industrial friends constrained. The decisions from the courts won’t end the debate, of course — they just mean that the environmentally minded need to win more provincial elections.
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