Breaking Ranks (and Precedent): Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74

Abstract

The Alberta Court of Appeal recently released its decision in Reference re Greenhouse Gas Pollution Pricing Act, Alberta’s challenge to the constitutionality of the federal government’s Greenhouse Gas Pollution Pricing Act. Writing for a majority of three judges, Chief Justice Catherine Fraser concluded that the GGPPA could not be upheld on the basis of Parliament’s residual power over matters of “peace, order, and good government” (POGG), nor any other potentially relevant federal head of power. This comment focuses on the majority opinion of the Alberta Court of Appeal, beginning with a summary and some brief commentary (Part II). Part III offers detailed commentary on the majority’s approach to section 92A, subsidiarity, the division of powers analysis generally, several aspects of the national concern doctrine, and the overall tenor of the decision. While we acknowledge that there is some uncertainty in the case law that leaves room for genuine disagreement and arguments both for and against the federal government’s reliance on POGG, in our respectful view the majority is simply incorrect on several fronts and strays far from precedent on others. The judgment is also unhelpfully burdened with rhetoric and value judgments that are hardly relevant to the process of legal reasoning.

Keywords: environmental law, climate change, pollution pricing, constitutional law