The constitutional challenge to Canada’s carbon tax face-planted last Thursday, with the Supreme Court ruling 6-3 in favour of the federal government's legislation for reasons that ranged from quite plausible to utterly wrong. But the upshot is that those who oppose the tax are out of tricks that would let them endorse climate alarmism but reject its painful policy consequences. They must either get with the program or debate the substance of the issue. Which is, we remind them, far more scientific than procedural.
We are not exactly fans of the ruling. Starting with the general point that the Court now produces “Case in Brief” summaries because their capacity to write comprehensibly or concisely has disintegrated. Indeed the “Case in Brief” for this one warns explicitly that “Due to the size of the judgment, you may get an error message when trying to access it”. And not just on your computer, we might add. At 405 pages and 107,102 words it might crash your brain and would have had Dostoevsky pleading for a stern editor.
Actually to be fair The Brothers Karamazov contains over 364,000 words. But this ruling rivals The Return of the King in length (137,115 words) if in no other way. So if brevity is the soul of wit (a line from the longest of William Shakespeare’s plays, Hamlet which at 30,557 words would nevertheless fit into this ruling three times with room left over for The Comedy of Errors) this ruling is a soulless clod.
Especially as the constitutional issue appears quite clear. Does the federal government have the power to act on a matter of national concern that crosses provincial and even national borders? Which in our relatively centralized federation it clearly does; if not, like a nation incapable of fielding a military in the face of a war, we would not be a nation at all. Which is what the six justices in the majority apparently believe, along with one dissenting judge whose concern was with specific provisions of the act.
Even if there are important contrary reasons requiring demolition, why take hundreds and hundreds of pages to say so, other than a lack of concern with being understood or being thought self-important?
One possible reason is that the Court decided to join the chorus of climate alarmists and got hypnotized by the melody. As the “Case in Brief” put it in prose a human could read, “The Supreme Court also pointed out that all of the parties agree that global climate change is real. It’s caused by greenhouse gas emissions resulting from human activities and it poses a grave threat to the future of humanity.”
The ruling itself, as you may well imagine, took reams of paper to say much the same thing. Including declaring CO2 to be carbon pollution: “GHGs are a specific and precisely identifiable type of pollutant. The harmful effects of GHGs are known, and the fuel and excess emissions charges are based on the global warming potential of the gases. GHG emissions are also predominantly extraprovincial and international in their character and implications. This flows from their nature as a diffuse atmospheric pollutant and from their effect in causing global climate change.”
Is it really the place of the Court to take sides on policy issues rather than judicial ones? Apparently it thinks so. And with some gusto and hitting every note. “It is well established that climate change is causing significant environmental, economic and human harm nationally and internationally, with especially high impacts in the Canadian Arctic, coastal regions and on Indigenous peoples.” Including monocasuality: “The essential factual backdrop to these appeals is uncontested. Climate change is real. It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future. The only way to address the threat of climate change is to reduce greenhouse gas emissions.”
Got that? “Climate change… is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future.” Natural climate variability is out the window as if Michael Mann had entered the room. Or Barack Obama had tweeted this thing. Except Tweets are short.
We might here interject that none of the Supreme Court justices is “a climate scientist” and nor are their clerks. (Nor are we, but as always if the objection is going to be thrown at skeptics it should be thrown right back at alarmists.) But we resist the impulse, because what’s really wrong with this passage is not scientific, it’s judicial.
It is not the business of the court to uphold or strike down laws based on their desirability as policy. Doing so would be as absurd as upholding interprovincial trade barriers because the Court thinks people drink too much or Ontario wine tastes bad.
The Justices’ day job is to uphold or strike down laws based on their acceptability as instruments created under the Canadian Constitution. At least it used to be, although nowadays everyone seems to have forgotten. (Except Justice Côté who objected that the provisions that allow the executive to rewrite the law “violate the Constitution Act, 1867, and the fundamental constitutional principles of parliamentary sovereignty, rule of law, and the separation of powers.”) But tish. We are concerned with policy here not all that dusty nonsense about how laws are made.
It is not clear when it became the job of the Court to take sides in policy or scientific disputes. But years ago former Chief Justice Beverley McLachlin admitted, or perhaps boasted, that: “My job is simply to listen to what the parties have to say, and to do my best to understand the position, the ramifications of deciding one way or the other, to think about what’s best for Canadian society on this particular problem that’s before us, and give it my best judgment...”. Note that her focus was on “what’s best for Canadian society” rather than what that silly old Constitution says governments are allowed to do, as though the Supreme Court were a branch of the sociology department at York University.
Which nowadays appears to be uncontroversial. Indeed Conservative leader Erin O’Toole greeted the ruling with “The court said what we all know – that climate change is real and it’s important for us to have a serious approach.”
Indeed it did, though not with such brevity. Instead, in a section titled “The Global Climate Crisis”, the majority churned out passage after passage such as “Global climate change is real, and it is clear that human activities are the primary cause. In simple terms, the combustion of fossil fuels releases greenhouse gases (‘GHGs’) into the atmosphere, and those gases trap solar energy from the sun’s incoming radiation in the atmosphere instead of allowing it to escape, thereby warming the planet. Carbon dioxide is the most prevalent and recognizable GHG resulting from human activities. Other common GHGs include methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and nitrogen trifluoride. At appropriate levels, GHGs are beneficial, keeping temperatures around the world at levels at which humans, animals, plants and marine life can live in balance. And the level of GHGs in the atmosphere has been relatively stable over the last 400,000 years.”
Well, apart from fluctuating by about 50%. But never mind. “Since the 1950s, however, the concentrations of GHGs in the atmosphere have increased at an alarming rate, and they continue to rise. As a result, global surface temperatures have already increased by 1.0°C above pre-industrial levels, and that increase is expected to reach 1.5°C by 2040 if the current rate of warming continues. These temperature increases are significant. As a result of the current warming of 1.0°C, the world is already experiencing more extreme weather, rising sea levels and diminishing Arctic sea ice. Should warming reach or exceed 1.5°C, the world could experience even more extreme consequences, including still higher sea levels and greater loss of Arctic sea ice, a 70 percent or greater global decline of coral reefs, the thawing of permafrost, ecosystem fragility and negative effects on human health, including heat-related and ozone-related morbidity and mortality.”
This undergraduate exercise in cliché-mongering helps explain the ponderous length of the ruling. And on it drones, including “The effects of climate change have been and will be particularly severe and devastating in Canada. Temperatures in this country have risen by 1.7°C since 1948, roughly double the global average rate of increase, and are expected to continue to rise faster than that rate. Canada is also expected to continue to be affected by extreme weather events like floods and forest fires, changes in precipitation levels, degradation of soil and water resources, increased frequency and severity of heat waves, sea level rise, and the spread of potentially life-threatening vector-borne diseases like Lyme disease and West Nile virus. The Canadian Arctic faces a disproportionately high risk from climate change.”
None of these things are supported by evidence. Including that we’re going to take it on the chin harder than all those places meant to vanish beneath the waves, burn up, perish from drought, get washed away or succumb to some disease or another. But the Court have shed their robes for placards and taken on the role of climate alarmists, including explicitly calling the matter “alarming,” since evidently their day job churning out legal bricks leaves them ample spare time.
Rather than continue our cut and paste of their cut and paste, we will return to one sentence quoted above, namely “The essential factual backdrop to these appeals is uncontested” and add one further observation from the majority that is of great importance: “All parties to this proceeding agree that climate change is an existential challenge.”
In short, those who lost the challenge did so partly because once again they attempted to rally round the white flag, agreeing that man-made GHGs are creating an international crisis likely to destroy civilization and then saying but surely our national government can’t do anything about them. And it doesn’t take us hundreds of pages to say that plan never works and never will. And just didn’t.