The Fight Against Climate Change Cannot Be Won in the Courtroom

On October 3, 2016 Prime Minister Trudeau announced that the provinces had until 2018 to adopt a carbon pricing scheme, or the federal government would create one for them.  Each province had complete latitude to create the plan in its own best interests, so long as certain minimum thresholds were met. All revenue generated under the carbon pricing scheme would remain within the province.

Provincial reaction to the announcement varied: Alberta, British Columbia and Quebec already have carbon pricing regimes in place, and are generally fine with the federal mandate.  They have indicated that their economies have suffered no ill-effects under carbon pricing.


Saskatchewan, however, responded by filing a legal challenge against the federal government’s plan.  Ontario soon followed suit, with newly elected Conservative Premier Doug Ford announcing that Ontario would not only join the Saskatchewan lawsuit, but also file one of its own.  Here in PEI, the Progressive Conservative Party has indicated that if elected, it too would take the federal government to court over the imposition of a tax on carbon.

Legal challenges of any size are expensive, and constitutional legal challenges involving multiple parties and levels of government are incredibly expensive. The Ontario Conservative Party election platform budgeted an incredible $30 million for its carbon tax court challenge.  These lawsuits are being filed notwithstanding Manitoba receiving a legal opinion that a court challenge against the federal government on this issue would likely lose.  That province has since focused its attention and money on other options, including complying with the federal requirements.

Indeed, most constitutional experts agree that the Saskatchewan and Ontario lawsuits have little chance of success.  Under our Constitution, the federal government has the power to make laws with respect to taxation and for matters of national concern (which would almost certainly include climate change and its consequences).  Also, the federal government is empowered by the doctrine of paramountcy, meaning that if a province and the federal government attempt to enact similar laws, the federal government’s law must prevail.

Governments rely on tax dollars to function, and have a fiduciary duty to use those dollars wisely in the best interests of its constituent citizens. Filing legal challenges with little chance of success is a breach of government’s duty to be a wise steward of the public’s money.  In the case of climate change, a constitutional challenge fails completely to address the seriousness of the issue: win or lose, climate change will still need to be tackled. Tax dollars would be better served staying within the province for enhanced social and environmental initiatives.

Given such poor odds of success, bringing these legal challenges appears to be primarily an expensive attempt to score political points. Governments cannot claim to be fighting for taxpayers while at the same time willfully wasting taxpayer money playing petty partisan games. Taxpayers should demand better.

Matthew MacFarlane is the Justice Critic for the Green Party of Prince Edward Island and will be the Green Party candidate in District 19 Borden-Kinkora