Environment
See also: Constitutional Law
Judicial review of Order in Council P.C. 2019-218 making Regulation Amending Part 1 of Schedule 1 and Schedule 2 to the Greenhouse Gas Pollution Pricing Act, SOR/2019-79 (Part 1 Regulations), which added Manitoba to list of provinces in which fuel charge under Part 1 of Greenhouse Gas Pollution Pricing Act, S.C. 2018, c. 12 (GGPPA) operates — Manitoba seeking order declaring that Order 2019-218, Regulation SOR/2019-79 invalid or unlawful — Challenge herein heard prior to release of Supreme Court’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (Reference Decision) — Supreme Court upholding constitutionality of GGPPA therein under Parliament’s jurisdiction over matters of national concern under peace, order, good government (POGG) clause of Constitution Act, 1867, s. 91 — Applicant submitting that Governor in Council (GIC) acted unreasonably, arbitrarily by including Manitoba — Challenging both decisions of GIC to add Manitoba to GGPPA, Schedule 1, Part 1 making fuel charge in GGPPA, Part 1 apply in Province of Manitoba — GGPPA requiring all Canadian provinces, territories to legislate towards reducing annual greenhouse gases (GHG) emissions output in accordance with stringency standards set out in federal Benchmark for carbon pricing — Benchmark providing guidance on core set of carbon pricing stringency criteria adopted by Government of Canada, including legislated increases in stringency — GGPPA, Parts 1, 2 of Schedule 1 imposing “backstop” on provinces, territories that pass emissions reduction legislation that does not meet federal stringency standards set out in Benchmark — If legislation not meeting Benchmark stringency requirements, GIC can list that jurisdiction in Parts 1, 2 of Schedule 1, making GGPPA itself apply within that province or territory — Part 1 implementing fuel charge — Part 2 providing framework for output-based pricing system, establishing excess emissions charge for large industrial emitters — Under GGPPA, ss. 166, 189, GIC empowered to add provinces or territories to Parts 1 or 2 of Schedule 1 — Manitoba released its Climate and Green Plan in 2017 — Pointing out that its carbon tax higher than federal Benchmark for years 2018-2019 — Withdrew its Plan in October 2018 — Asserting decision to withdraw proposed carbon pricing plan motivated by desire to avoid having Government of Canada “top up” that plan with second layer of taxation in province — GIC concluded that Parts 1, 2 applying in Manitoba because that province no longer having pricing system to assess using Benchmark stringency criteria — Manitoba submitting, inter alia, that GIC exceeded its jurisdiction, acted unreasonably, arbitrarily by failing to apply minimum national standard of carbon pricing uniformly across country — Arguing that: (1) assessing Manitoba’s proposed carbon tax as insufficiently stringent running contrary to “fundamental purpose” of GGPPA to reduce GHG emissions; (2) unreasonable, arbitrary for GIC to assess GGPPA’s stringency requirement differently in relation to different provinces, territories; (3) GIC required to exercise its discretion under GGPPA, ss. 166, 189 with eye to results, not simply to whether proposed provincial plan in line with incremental annual increases in GHG reduction outlined in federal Benchmark; (4) interpretation of stringency requirement by reference to results, not just price, accords with text, context, purpose of GGPPA — Whether reasonable for GIC to amend GGPPA, Schedule 1 to include Manitoba on list of provinces, territories to which Parts 1, 2 applying — GIC exercising its discretion consistently with purpose of GGPPA, constraints set out in ss. 166, 189 — Definition of “stringency” not contained in GGPPA, addressed in Reference Decision — GIC interpretation of “stringency” acceptable herein, i.e. as meeting standards of stringency set out in federal Benchmark — Parliament intending word “stringency” to mean carbon pricing that increases incrementally over time, begins with minimum price of $10 per excess ton of carbon in 2018 — This interpretation of stringency reasonable in light of text, context, purpose of GGPPA — Comports with statutory grants of power in GGPPA, ss. 166(3), 189(2) — GIC’s assessment that Manitoba’s plan insufficiently stringent also reasonable — Whether impugned Decisions running constitutionally afoul of POGG — While POGG imposing requirement for uniformity, GGPPA meeting that requirement by imposing uniform minimum national standards of GHG reduction through “sufficient stringency” terms of GGPPA, ss. 166, 189 — So long as GIC using same barometer for stringency when assessing proposed provincial legislation under GGPPA, no constitutional infirmity arising with respect to POGG — Manitoba’s contention that GIC arbitrarily assessed stringency as between provinces premised on misunderstanding of evidence — Application dismissed.
Manitoba v. Canada (Attorney General) (T-685-19, 2021 FC 1115, Mosley J., reasons for judgment dated October 21, 2021, 48 pp.)