Saskatchewan launches constitutional challenge to federal carbon tax

[thodisipagal]

https://www.nationalnewswatch.com/2...al-ruling-on-federal-carbon-tax/#.WuDsvY5lC2f

Here you go. Another knotty constitutional issue surrounding legislative jurisdiction of federal parliament vs. provincial legislature. Just like the constitutional question about Kinder Morgan Trans Mountain Expansion project, the Saskatchewan's challenge goes right into SS. 91 and 92 of Constitution Act, 1867.

Saskatchewan says federal government's GHG Pollution Pricing Act (Let's just call it federal Carbon Price Act) is unconstitutional as it tramples on provincial jurisdiction. Federal government, of course, believes it is constitutional.

Who do you think is right and win the case filed by Saskatchewan government in Court of Appeals today?

I think it's a knotty issue. But some things are clear.

Federal government has jurisdiction over direct and indirect taxation for the purposes of generating revenue (s. 91). The purpose of any federal tax legislation, however, has to be predominantly revenue generation rather than regulation. Federal government must convince the court that the federal carbon pricing plan and the consequent carbon tax is to generate revenue first, with emission reduction as the secondary outcome. Also, as per the Federal plan, revenue generated from carbon tax will all go back to the provinces. If the court views that as a regulatory scheme to reduce GHG rather than a revenue generation scheme, the court may decide in favor of Saskatchewan.

Provincial government also has jurisdiction over taxation (s. 92), but such taxes must be direct, I.e., those taxes that are directly levied on people. The federal carbon tax is not a direct tax as it is levied on industry, not on people.

Federal government has constitutional jurisdiction oever Peace, Order and Good Governance (POGG). Under good governance jurisdiction, federal government has authority over areas of national concern (s. 91). Federal government argues that GHG is an issue of national concern.

Manitoba was another province that opposed federal carbon pricing scheme and was considering their own constitutional challenge. But they finally signed on to the Federal plan early this year when their legal counsel advised that they would likely not prevail in a court of law. Saskatchewan is one last remaining province that is vehemently opposed. Even Alberta, the energy rich province, have their own carbon pricing.

Under the Federal plan, every province must have their own carbon pricing plan by September this year or face federal carbon tax.

Based on these considerations, I think Saskatchewan will not prevail in the court.

But, we shall see.

Comments, discussions and insights welcome. Insults and innuendos, not so much.

 

[Abbott_]

Those sod-busters always be stirring up shit !

http://thestarphoenix.com/news/loca...-tax/wcm/5ced0ec5-ca29-422b-96e4-c4287e584a1a

_____________:star:

 

[rlock]

https://www.nationalnewswatch.com/2...al-ruling-on-federal-carbon-tax/#.WuDsvY5lC2f

Here you go. Another knotty constitutional issue surrounding legislative jurisdiction of federal parliament vs. provincial legislature. Just like the constitutional question about Kinder Morgan Trans Mountain Expansion project, the Saskatchewan's challenge goes right into SS. 91 and 92 of Constitution Act, 1867.

Saskatchewan says federal government's GHG Pollution Pricing Act (Let's just call it federal Carbon Price Act) is unconstitutional as it tramples on provincial jurisdiction. Federal government, of course, believes it is constitutional.

Who do you think is right and win the case filed by Saskatchewan government in Court of Appeals today?

I think it's a knotty issue. But some things are clear.

Federal government has jurisdiction over direct and indirect taxation for the purposes of generating revenue (s. 91). The purpose of any federal tax legislation, however, has to be predominantly revenue generation rather than regulation. Federal government must convince the court that the federal carbon pricing plan and the consequent carbon tax is to generate revenue first, with emission reduction as the secondary outcome. Also, as per the Federal plan, revenue generated from carbon tax will all go back to the provinces. If the court views that as a regulatory scheme to reduce GHG rather than a revenue generation scheme, the court may decide in favor of Saskatchewan.

Provincial government also has jurisdiction over taxation (s. 92), but such taxes must be direct, I.e., those taxes that are directly levied on people. The federal carbon tax is not a direct tax as it is levied on industry, not on people.

Federal government has constitutional jurisdiction oever Peace, Order and Good Governance (POGG). Under good governance jurisdiction, federal government has authority over areas of national concern (s. 91). Federal government argues that GHG is an issue of national concern.

Manitoba was another province that opposed federal carbon pricing scheme and was considering their own constitutional challenge. But they finally signed on to the Federal plan early this year when their legal counsel advised that they would likely not prevail in a court of law. Saskatchewan is one last remaining province that is vehemently opposed. Even Alberta, the energy rich province, have their own carbon pricing.

Under the Federal plan, every province must have their own carbon pricing plan by September this year or face federal carbon tax.

Based on these considerations, I think Saskatchewan will not prevail in the court.

But, we shall see.

Comments, discussions and insights welcome. Insults and innuendos, not so much.

I think the carbon tax will pass muster, but I am not sure only because the courts make goofy rulings sometimes, contrary to logic. But logic says the courts should not find it out of bounds.

First of all, to say the purpose of the carbon tax is "regulation" is not quite accurate; it's primary purpose is emission reduction. But its purpose is not simply to punish or discourage; the revenue is supposed to go towards products / infrastructure that will accelerate the transition away from GHG emissions. (In fact, if they just sat on the revenue, or treated it as general revenue, it would undermine their case.

Second of all, federal and provincial governments do charge similar taxes, in some cases overlapping - PST and GST being the big example.

Third, there are many other cases where governments deliberately use taxes to raise the cost of certain things (taxes on booze and smokes), or provide tax breaks for other things to lower their cost. Basically, governments do this sort of action all the time, so it is not unprecedented for governments to introduce a pricing bias because they like or dislike a particular thing.

The courts would therefore probably consider it a matter of political choices, and leave it in parliament's hands.

 

[80watts]

rlock "First of all, to say the purpose of the carbon tax is "regulation" is not quite accurate; it's primary purpose is emission reduction. But its purpose is not simply to punish or discourage; the revenue is supposed to go towards products / infrastructure that will accelerate the transition away from GHG emissions. (In fact, if they just sat on the revenue, or treated it as general revenue, it would undermine their case. "

The tax on fuel/gas in the 60s70s was supposed to go to help build roads and maintain them. It basicly now goes to general revenue. Cause they would be no potholes in all those roads. So this carbon tax will eventually go to general revenue.

Sask will lose because its a tax. The governments are broke and spending too much and they need revenue.

As to discouraging using fossil fuels, unless they come up with a reliable alternative that is easy to use (ie the dumbest person could use it), we will keep burning fossil fuels because its so convenient.

The alternatives are fuel cells which run on hydrogen gas.

A second alternative would be to burn Hydrogen in a Internal combustion engine (like a gas engine).

For now we pay more taxes.....

Yup GST 6% coming soon.......

 

[thodisipagal]

I think the carbon tax will pass muster, but I am not sure only because the courts make goofy rulings sometimes, contrary to logic. But logic says the courts should not find it out of bounds.

First of all, to say the purpose of the carbon tax is "regulation" is not quite accurate; it's primary purpose is emission reduction. But its purpose is not simply to punish or discourage; the revenue is supposed to go towards products / infrastructure that will accelerate the transition away from GHG emissions. (In fact, if they just sat on the revenue, or treated it as general revenue, it would undermine their case.

Second of all, federal and provincial governments do charge similar taxes, in some cases overlapping - PST and GST being the big example.

Third, there are many other cases where governments deliberately use taxes to raise the cost of certain things (taxes on booze and smokes), or provide tax breaks for other things to lower their cost. Basically, governments do this sort of action all the time, so it is not unprecedented for governments to introduce a pricing bias because they like or dislike a particular thing.

The courts would therefore probably consider it a matter of political choices, and leave it in parliament's hands.

My take on federal vs provincial jurisdiction on tax is that s. 91(3) allows federal parliament to enact laws for the purposes of “raising of money by any mode or system of taxation” whereas s. 92(2) allows provincial legislature to enact laws for the purposes of “direct taxation within the province in order to raising of a revenue for provincial purposes.”

This distinction makes it clear that that federal government could prevail in the Court of Appeals if it convinced the court that the carbon tax that it imposed on Saskatchewan and all other provinces is completely within its constitutional right.

If federal government argued that the purpose of carbon tax is to regulate industrial activities to achieve GHG emission reduction, then I think the court might think the federal government is treating into constitutional jurisdiction of provinces, because provinces have constitutional authority to regulate industry and all matters that are local within the province.

There’s a nice book on this whole subject: “Carbon Pricing and Environmental Federalism” by Courchene and Allan (http://www.mqup.ca/canada--the-state-of-the-federation--2009-products-9781553391968.php#!prettyPhoto). The chapter titled “The Constitutional Authority to Levy Carbon Taxes” written by Univ. of Ottawa law professor Nathalie Chalifour is especially useful. She talks about some of the same things I have written about in my posts here. That chapter is available online by googling.

So, I think federal government would face much higher risk of not prevailing in the court if they took the regulatory argument rather than taxation argument.

But I think I have a sense of what you might be thinking of. Slapping new tax to raise revenue is never a popular idea. Any government’s attempt to raise tax would be immediately labeled as “tax grab”. On the other hand, same tax would meet less public resistance if it is pushed through as a regulatory mechanism to achieve a desirable public outcome (e.g., less pollution). So, I know “revenue generation” is bad optics; “achieving a desirable pubic outcome” is, in general, welcomed. But, courts of law are not the court of public opinion. There are different metrics in courts of law. What’s “good public optics” may not necessarily meet the legal and constitutional provisions.
But, federal government has another big arsenal in s. 91 that allows federal parliament “to make laws for the peace, order, and good governance of Canada.” They can make constitutionally valid laws related to carbon pricing and tax under this provision.

I think I must expand on the regulatory vs. revenue generation objective of taxation I mentioned in my previous post, so there is no confusion. When I mention the revenue generation objective, I mean any and all taxes that raise revenue to pay for services and investment in public infrastructure.

When I mention regulatory objective, it is those taxes which are designed with the primary objective of achieving a desired social or industrial outcome, such as GHG emission reduction through carbon pricing/taxes or cap and trade, or industrial effluent control, or improvement in public health by reducing respiratory and cancer risks by incouraging people to quit smoking, etc. Such tax scheme or regime would be the regulatory instrument designed through, as you say, price bias or other financial incentives. Without going into details, this is what I intended in my original post.

 

[rlock]

If federal government argued that the purpose of carbon tax is to regulate industrial activities to achieve GHG emission reduction, then I think the court might think the federal government is treating into constitutional jurisdiction of provinces, because provinces have constitutional authority to regulate industry and all matters that are local within the province.

It could be argued credibly that GHG emissions into the atmosphere are not local to a particular province, given their effects.
As well, the feds have authority over ships at sea, and rail, and aircraft already - including fuel composition, fuel economy standards, etc. - so any carbon tax would have to be applied to those modes / jurisdictions. It's not an argument that chases the provinces out of carbon pricing, but it does let the feds in.

In any case, section 91 could be invoked too. One interesting aspect of climate change / global warming, is that it is also a national security issue. Virtually every strategic doctrine being written by the militaries of the world acknowledges it as a future-shaping threat, on par with or even exceeding nuclear war. Destruction of food and water supplies, economic chaos, dislocation of people by the millions. Violent conflicts will fought simply because nations are losing their livability due to environmental over-stress / damage; some even say those wars have already begun in some places. Some nations will find themselves unable to survive, and other with plenty will become targets as a result. The next 100 years will be hell, and survivalism must dominate strategic thinking, becoming more important than the pursuit of individual economic prosperity.

So this issue not merely a scientific curiosity. Survival is at stake, and just like with any total war, the sharp-edged agencies of every government are gearing up to deal with it, no matter what pampered reality-denying nitwits might be in charge politically. The utmost national interest / national security issue is always survival.

So, as a final "in case of emergency, break glass" legal argument, the federal government can always invoke that. Of course, doing so runs counter to their current pipeline-related rhetoric about what constitutes the "national interest".

 

[thodisipagal]

It could be argued credibly that GHG emissions into the atmosphere are not local to a particular province, given their effects.
As well, the feds have authority over ships at sea, and rail, and aircraft already - including fuel composition, fuel economy standards, etc. - so any carbon tax would have to be applied to those modes / jurisdictions. It's not an argument that chases the provinces out of carbon pricing, but it does let the feds in.

In any case, section 91 could be invoked too. One interesting aspect of climate change / global warming, is that it is also a national security issue. Virtually every strategic doctrine being written by the militaries of the world acknowledges it as a future-shaping threat, on par with or even exceeding nuclear war. Destruction of food and water supplies, economic chaos, dislocation of people by the millions. Violent conflicts will fought simply because nations are losing their livability due to environmental over-stress / damage; some even say those wars have already begun in some places. Some nations will find themselves unable to survive, and other with plenty will become targets as a result. The next 100 years will be hell, and survivalism must dominate strategic thinking, becoming more important than the pursuit of individual economic prosperity.

So this issue not merely a scientific curiosity. Survival is at stake, and just like with any total war, the sharp-edged agencies of every government are gearing up to deal with it, no matter what pampered reality-denying nitwits might be in charge politically. The utmost national interest / national security issue is always survival.

So, as a final "in case of emergency, break glass" legal argument, the federal government can always invoke that. Of course, doing so runs counter to their current pipeline-related rhetoric about what constitutes the "national interest".

I agree with you -- that GHG is not a local issue, and therefore is a national concern. I believe that is in the Federal government's arsenal to convince the court that the issue is of national concern and therefore within federal jurisdiction.

 

[thodisipagal]

The National Interest perhaps? Like a pipeline?

I suppose you could say that, yes.

Fed's argument against Saskatchewan challenge might be two part 1) GHG emission is national concern, 2) GHG emission reduction as the outcome of carbon tax is of national interest; therefore carbon tax is within federal jurisdiction.

Maybe we could sell that line to McKenna and Wilson-Reybould.

 

[storm rider]

No matter how you slice it/name it or put whatever bureaucratic spin on it is is a fucking TAX.A TAX on Canadians heating their homes in one of the coldest countries on the planet.The whole Lieberal agenda with regards to "Climate Change" is just as much of a sham as "Climate Change"

Canada produces 2% of world wide GHG emissions and that encompasses ALL industry in Canada as well as Canadians personal use of cars etc and foolishly wanting to heat their homes in the winter as well as that slice of the population that just must have AC in the summer.

At the same time Canada's northern boreal forest CLEANS up 50% of the world wide GHG emissions.Canada is already doing the heavy lifting due to the sustainable forestry standards the we have that have kept that massive carbon scrubbing green belt intact.

In the first year of the Carbon Tax being enacted the price will be $10 a ton which will rise by $10 a ton/year over the next 4 years and it will be $20 a ton when the next Federal election happens so of course the really nasty expensive stuff happens AFTER the election and Canadians get to discover that the Carbon Tax will cost them just shy of what natural gas costs them now per gigajoule.In Alberta $20 a ton Carbon tax costs $1 per gigajoule of natural gas so at $50 a ton a gigajoule of natural gas the cost of the carbon tax will be $2.50 and the cost of the actual natural gas is around $3.25 a gigajoule.....this is almost doubling the cost of natural gas to the average Canadian who has to bear the costs of this virtue signalling BULLSHIT because TAXING people will not LOWER emissions.

Canada will not meet it's emissions targets and you can bet your bottom dollar that is this Lieberal lunacy plays out as they want it to Canadian tax dollars will eventually be spent on buying "carbon credits" from the United Nations list of "have not" countries....which will essentially be a "wealth transfer" directed by the UN.

Trudeau did not run on a Carbon Tax....he did mention it during a speech at the Calgary Petroleum Club but that was quickly buried by the Lieberals and the media and that was well before the last election.He did not run on the hustings with a Carbon Tax as a policy plank in the Lieberal platform.That pussy wimp Dion did do that and he called it the "Green Shift" and Dion got his ass handed to him.

For my most recent utility bill I used 16 gigajoules of natural gas to foolishly heat my home and have hot water and the cost of the gas was $45.78......the cost of the Carbon Tax tacked onto it was $24.53 and then GST was tacked ONTO the total cost as well.That is a more than 50% increase in cost and it is only at $20 a ton for the Carbon Tax not the projected $50 a ton the Lieberals want it to be by 2022.

Will this lower my emissions?FUCK NO I have no choice!I can pay it or I can freeze to death in winter in my own home.

SR

 

[thodisipagal]

No matter how you slice it/name it or put whatever bureaucratic spin on it is is a fucking TAX.A TAX on Canadians heating their homes in one of the coldest countries on the planet.The whole Lieberal agenda with regards to "Climate Change" is just as much of a sham as "Climate Change"

Canada produces 2% of world wide GHG emissions and that encompasses ALL industry in Canada as well as Canadians personal use of cars etc and foolishly wanting to heat their homes in the winter as well as that slice of the population that just must have AC in the summer.

At the same time Canada's northern boreal forest CLEANS up 50% of the world wide GHG emissions.Canada is already doing the heavy lifting due to the sustainable forestry standards the we have that have kept that massive carbon scrubbing green belt intact.

In the first year of the Carbon Tax being enacted the price will be $10 a ton which will rise by $10 a ton/year over the next 4 years and it will be $20 a ton when the next Federal election happens so of course the really nasty expensive stuff happens AFTER the election and Canadians get to discover that the Carbon Tax will cost them just shy of what natural gas costs them now per gigajoule.In Alberta $20 a ton Carbon tax costs $1 per gigajoule of natural gas so at $50 a ton a gigajoule of natural gas the cost of the carbon tax will be $2.50 and the cost of the actual natural gas is around $3.25 a gigajoule.....this is almost doubling the cost of natural gas to the average Canadian who has to bear the costs of this virtue signalling BULLSHIT because TAXING people will not LOWER emissions.

Canada will not meet it's emissions targets and you can bet your bottom dollar that is this Lieberal lunacy plays out as they want it to Canadian tax dollars will eventually be spent on buying "carbon credits" from the United Nations list of "have not" countries....which will essentially be a "wealth transfer" directed by the UN.

Trudeau did not run on a Carbon Tax....he did mention it during a speech at the Calgary Petroleum Club but that was quickly buried by the Lieberals and the media and that was well before the last election.He did not run on the hustings with a Carbon Tax as a policy plank in the Lieberal platform.That pussy wimp Dion did do that and he called it the "Green Shift" and Dion got his ass handed to him.

For my most recent utility bill I used 16 gigajoules of natural gas to foolishly heat my home and have hot water and the cost of the gas was $45.78......the cost of the Carbon Tax tacked onto it was $24.53 and then GST was tacked ONTO the total cost as well.That is a more than 50% increase in cost and it is only at $20 a ton for the Carbon Tax not the projected $50 a ton the Lieberals want it to be by 2022.

Will this lower my emissions?FUCK NO I have no choice!I can pay it or I can freeze to death in winter in my own home.

SR

Hey SR, nobody's saying carbon tax is not a tax. Even Trudeau government says it is tax. So, yeah, I'm with you -- it is a tax. It is a fucking tax. But why are you stating the obvious? Damn, I even pay tax for my grocery. I don't like having to pay tax. I rant and vent in my bathroom. But, other than that I know tax and death are the only two things that are certain in life. Oh, guess what, in all of Canada, carbon tax was started in BC. But it wasn't started by the progressive NDP; your friend Gordon Campbell started it.

Now, about your statement that Trudeau did not run on carbon tax. You might want to take that back. Read page 39 of their 2015 campaign platform document "A New Plan for a Strong Middle Class." His carbon tax plan is right at the top. Come on, man, at least fact check before you make that kind of claim.