By: Nigel Bankes, Andrew Leach & Martin Olszynski

PDF Version: Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part III (Commentary)

Case Commented On: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII)

This is the third in a series of posts regarding the Supreme Court of Canada’s much-anticipated reference opinion regarding the constitutionality of the federal government’s greenhouse gas (GHG) pricing regime: Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) (GGPPA Reference) (Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA)). The first post summarized the legislation and the majority opinion written by Chief Justice Richard Wagner. The second post summarized the dissenting opinions of Justices Suzanne Côté, Russell Brown and Malcolm Rowe. In this post, we provide commentary on four aspects of the Reference: the breadth of the matter and the characterization of the GGPPA, the constitutional implications of minimum national standards as defined in this case, the role of provincial inability and extraprovincial effects, and finally the role of domestic courts in adjudicating a global problem like climate change

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By: Nigel Bankes, Andrew Leach & Martin Olszynski

 PDF Version: Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part II (The Dissents)

Case Commented On: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII)

This is the second in a series of posts on the Supreme Court of Canada’s much-anticipated reference opinion regarding the constitutionality of the federal government’s greenhouse gas (GHG) pricing regime: Reference re Greenhouse Gas Pollution Pricing Act , 2021 SCC 11 (CanLII) (GGPPA Reference) (Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA). The first post summarized the legislation and the majority opinion written by Chief Justice Richard Wagner. In this post, we summarize the dissenting opinions of Justices Suzanne Côté, Russell Brown and Malcolm Rowe. Our goal in reviewing the dissents is to highlight areas of agreement and disagreement between the majority and the dissents.

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By: Nigel Bankes, Andrew Leach & Martin Olszynski

 PDF Version: Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part I (The Majority Opinion)

Case Commented On: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII)

The essential factual backdrop to these appeals is uncontested. Climate change is real. It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future. The only way to address the threat of climate change is to reduce greenhouse gas emissions… (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) at para 2)

On March 25, 2021, the Supreme Court of Canada released its much-anticipated reference opinion regarding the constitutionality of the federal government’s greenhouse gas (GHG) pricing regime. In Reference re Greenhouse Gas Pollution Pricing Act , 2021 SCC 11 (CanLII) (GGPPA Reference or the Reference), a majority of the Supreme Court held that the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA) fell within Parliament’s residual power to make laws for “peace, order, and good government” (POGG), as set out in section 91 of the Constitution Act, 1867. Writing for the majority, Chief Justice Richard Wagner concluded that setting minimum national standards of GHG price stringency to reduce GHG emissions was a “matter of national concern” (at para 4), a recognized branch of the POGG power. Justices Suzanne Côté, Russell Brown, and Malcolm Rowe dissented, each for different reasons. Importantly, Justice Côté agreed with the majority on the national concern issue.

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