By Connor Lynch
Three legal experts agree that Ontario’s challenge to the federal carbon tax, announced last month, is likely doomed to fail.
The Ford government already cancelled Ontario’s controversial cap-and-trade program and last month moved to challenge the so-called federal backstop. The federal government passed legislation as part of the budget in March which would guarantee a minimum carbon price. Initially $10 per tonne of CO2 equivalent emitted, it would grow to $50 per tonne by 2022.
Cap-and-trade was unpopular in farm country, where it was expected to raise costs for farmers since most can’t reduce their emissions.
The Ontario government joined Saskatchewan’s legal challenge as well as launching its own. Ontario’s argument is that the federal carbon backstop oversteps the fed’s authority and is an unconstitutional tax on Ontarians. Saskatchewan is arguing that a federal carbon price infringes on the rights of provinces to deal with environmental issues as they see fit.
Attorney General Caroline Mulroney told Global News that the challenge wasn’t “symbolic. It’s what we were elected to do.”
The Progressive Conservatives had budgeted $30 million for the challenge during their campaign, and Mulroney told reporters Aug. 2 that she believed it would cost less.
One constitutional lawyer, speaking on condition of anonymity to Farmers Forum, said that at best Ontario was facing an uphill battle, and that the case was likely an impossible one to win. The federal government’s powers overlap with the provinces’ in issues of the environment and taxation, they said, so the argument that the federal government is encroaching on provincial powers will be a hard one to win.
Manitoba, which has said it will also sue the federal government if it enforces its carbon backstop, sought legal advice last year on the question. Winnipeg-lawyer Bryan P. Schwartz wrote a 64-page legal opinion for the province, explaining that the Supreme Court would likely uphold the federal backstop.
Constitutional law expert at York University Allan Hutchinson agreed, telling Global News that the federal government has argued in the past that because environmental issues aren’t constrained by borders, the feds have to act nationally, and “the courts have been sympathetic to that.”