Kenney can rail but won't beat federal carbon tax, law expert says

Jason Kenney could kill the provincial carbon tax as premier but Albertans would still have to live with the proposed federal price on carbon pollution, says a constitutional law expert.

Challenging federal carbon plan ‘may make good politics,’ but legal expert says unlikely to stand in court

Alberta's carbon tax has increased the cost of everything from gas to home heating, but its plan makes it immune to a price on carbon imposed by the federal government. (Mark Ralston/AFP/Getty Images)

Jason Kenney could kill the provincial carbon tax as premier but Albertans would still have to live with the proposed federal price on carbon pollution, says a constitutional law expert.

University of Alberta constitutional law expert Eric Adams says a provincial carbon tax can be removed with "the stroke of a pen," but eliminating the federal carbon tax within Alberta would be another challenge entirely.

The only way for a province to stop Ottawa from imposing a price on carbon would be to successfully argue that the federal legislation was unconstitutional, Adams said in an interview Monday.

"That may make good politics for their constituents," he said, "but the realities are that most experts who look at this issue think the federal government very likely does have that constitutional authority."

Kenney would challenge federal tax

Alberta's carbon tax came into effect in January 2017 and increased by 50 per cent this month. The federal government plans to bring in its own price on carbon pollution later this year.

Kenney, leader of the Opposition United Conservative Party, is committed to repealing the carbon tax if he becomes Alberta premier in 2019, regardless of what conditions the federal government imposes.

"If the federal government were to try and impose a federal tax, I've been clear that we would challenge that in court," Kenney told CBC News in December.

"It's quite possible Saskatchewan will have an active constitutional challenge that we would seek to join in the court."
UCP leader Jason Kenney, pictured with Saskatchewan Premier Brad Wall, says if he becomes the next Alberta premier, he'll join Saskatchewan's legal fight against a price on carbon. (Twitter)

But Adams said it's likely the federal government will be able use its constitutional jurisdiction to bring in an effective carbon tax regulation. "Making a threat of a lawsuit sounds good and aggressive. The reality is that those cases are destined to fail," he said.

David Duff, a law professor at the University of British Columbia, said an argument could be made that a price on carbon is intended to regulate emissions, not to raise money — particularly if the federal government returns any revenue to the provinces.

"And therefore, it's not really raising revenue by a tax, it's some kind of other thing that interferes with provincial jurisdiction which exists over property and civil rights."

Duff said that type of argument can be made, but he doubts it would be successful.

Cheap talk, says Ceci

"Talk is cheap," said Alberta Finance Minister Joe Ceci, responding to suggestions a UCP government under Kenney would eliminate all carbon tax.

"I think Mr. Kenney really doesn't know what he's talking about," said Ceci, pointing out there's no guarantee the federal government would return a specific portion of the revenue to the provinces.

"The federal government would collect the money, then there would be a discussion about what to do with it."

New details on federal plan

On Monday, Catherine McKenna, Minister of Environment and Climate Change, released further details on the federal carbon pricing system.
The federal government will undertake extensive industry and public consultation before introducing a price on carbon. (CBC)

The federal price on carbon pollution will start at $10 a tonne this year and increase to $50 a tonne by 2022. It would apply in provinces and territories that don't have a system in place which meets the federal standard. Provinces and territories must outline their plans by Sept. 1.

"The environment and the economy go hand in hand," McKenna said in a statement that pointed out provinces with a price on carbon are leading Canada in job creation.

Four provinces -- Alberta, British Columbia, Ontario and Quebec -- have carbon pricing in place, covering more than 80 per cent of Canada's population.

"Today, we're following through on our commitment to put a price on carbon pollution across Canada, with federal legislation and a practical approach to protect competitiveness for large industry," McKenna said.

Alberta's carbon tax came into effect Jan. 1, 2017 with carbon priced at $20 per tonne of emissions.

This month, the Alberta tax increased 50 per cent to $30 per tonne. The carbon tax on a litre of gasoline is now 6.73 cents per litre, and 8.03 cents per litre on diesel fuel.

On natural gas, the most common fuel used for home heating in Alberta, the tax is now $1.517 per gigajoule. On propane the tax is now 4.62 cents per litre.

To counter the impact of the added tax, the Alberta government has been mailing rebates to families and individuals.


Kim Trynacity is a former provincial affairs reporter with CBC Edmonton.