References re Greenhouse Gas Pollution Pricing Act

The federal Greenhouse Gas Pollution Pricing Act is intra vires Parliament under the national-concern branch of the Peace, Order and Good Government (POGG) power. Establishing minimum national standards of GHG price stringency is a matter of national concern.

Saskatchewan, Ontario, and Alberta referred the constitutionality of the GGPPA. The Act sets minimum standards and allows provinces to maintain their own equivalent or stricter regimes (backstop).

Is the Act intra vires Parliament under POGG?

Yes (6-3).

Under POGG's national-concern branch (Crown Zellerbach), a matter is of national concern if (i) it is single, distinct and indivisible, (ii) it has a scale of impact on provincial jurisdiction reconcilable with the division of powers, and (iii) provincial inability — failure of one or more provinces to act would have grave extra-provincial consequences. Establishing minimum national stringency standards for GHG pricing meets the test.

Wagner CJ stressed that climate change is an existential global problem; provincial inaction has serious extra-provincial consequences. The matter is the establishment of minimum national standards, not all aspects of GHG regulation, which keeps the matter narrow enough to satisfy provincial-jurisdiction concerns.

Most important federalism case in years. Reinvigorates the national-concern branch of POGG. Sets template for federal action on minimum-standard regulation across environmental and other policy areas.

References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 SCR 175.

Wagner CJ, Abella J, Moldaver J, Karakatsanis J, Côté J, Brown J, Rowe J, Martin J, Kasirer J