Alberta's carbon tax challenge "most pursuasive" of all provinces

August 08, 2019

Partner Tyson Dyck has told Carbon Pulse Alberta’s argument in its Court of Appeal challenge against the federal carbon tax has been refined enough in light of other provinces’ defeats that it’s now the “most persuasive” of challenges.

The article said lawyers for Alberta’s United Conservative Party have honed their arguments to a “smaller subset of issues”.

He told the publication the arguments presented in both Saskatchewan’s and Ontario’s challenges “presented a wider range of arguments against the backstop carbon pricing strategy, including that the federal policy represented an improper tax.”

“The factum in this case narrows the battle field pretty significantly,” Tyson said.

The article continues saying provincial courts have ruled the federal backstop fuel levy constituted a regulatory charge rather than a tax, which may have prompted Alberta to isolate the issue of provincial jurisdiction.

An excerpt from the piece is below:

Alberta lawyers cited [s]ection 92a of the Canadian Constitution as giving provinces the exclusive jurisdiction over the development, conservation, and management of natural resources and electricity generation within their territory.

In their view, the federal Greenhouse Gas Pollution Pricing Act (GGPPA)—the law underpinning the backstop strategy—circumvents [s]ection 92a, which was added to the Constitution in 1982. That jives with Alberta’s view that the feds’ ability to regulate GHGs under the backstop is also about regulating local industry.

“When you look at Alberta’s economy, the GHGs are largely coming from resource production, especially in the oil sands. You can’t regulate one without affecting the other,” [Tyson] said.

Alberta has long argued that its geographical uniqueness as the epicentre of Canada’s fossil fuel industry, accounting for 80% of national crude oil production and 67% of natural gas in 2016, should be reflected in its climate policy.

The full piece is available to subscribers on the Carbon Pulse website.

Our team has written on this issue previously in the pieces, “Court of Appeal confirms validity of federal carbon price”, and “Ontario Court of Appeal holds federal carbon price constitutional”.

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