In Canada’s C2C Journal, Jack Wright takes aim at a Supreme Court decision-like object in the “Greenhouse Gas reference”, aka “Reference re Greenhouse Gas Pollution Pricing Act, 2021”. And yes, even the terminology might sound like a sleep aid. But stay with us briefly. We at CDN think that ruling was correct in one key aspect, that the federal government really does have the power to legislate and regulate on matters that cross provincial and national borders as greenhouse gases quite obviously do. But Wright demonstrates that it was a hideous mess in many other regards including that the “scientific” basis of the legislation in question seems to have been swallowed whole by the court, who are not climate scientists, based on a brief from a senior bureaucrat who isn’t one either. And we do think it’s more than fair, it’s essential, to say that anyone who challenges skeptics on the basis of credentialism should therefore be vocally opposed to this way of making policy. But we’re not holding our breath.

Reference cases are a bit odd. As Wright explains:

“In Canadian law a reference case is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue, usually the constitutionality of particular legislation. The opinion given by the Supreme Court is in the form of a judicial decision; strictly speaking, it is not legally binding, although no government has ever ignored such an opinion.”

And naturally the usual suspects seized on this one as proof that they were right on the substance of the matter and also in a commanding legal position. Including some Ontario youth persons now:

“claiming their Charter-protected rights to life, security of the person and equality are being infringed because provincial energy policy does not fight climate change vigorously enough.”

However that may be, as an annoyance or a successful hijacking of the political process, Wright complains that in the reference case:

“The majority made two important scientific assumptions. First, it assumed that climate change poses a threat to the survival of humanity. Second, it assumed that Canada’s climate is substantially controlled by Canada’s own emissions of greenhouse gases, chiefly carbon dioxide (CO2). Based on these assumptions, it would follow that Canada can avert the harms of climate change to Canadians by reducing Canadian CO2 emissions through a carbon tax”.

But whatever one’s opinion might be on the former, and obviously ours differs from those of Canada’s political elite and most journalists, the latter is a piece of shocking scientific ignorance. Canadians can protect themselves from water pollution by ensuring that contaminants are not dumped into our lakes and rivers to flow across the land. But obviously “global” warming is, if driven by “greenhouse gases”, driven by the global total, and what we do doesn’t matter at all compared to what China does.

Worse, from a judicial if not scientific perspective, Wright explains that:

“the high court’s two critical premises around which the whole reference case hinged were not proven material facts because there was no evidence before the Court. They were merely the untested assumptions of the seven justices.”

He then demolishes the majority decision authored by Chief Justice Richard Wagner with regard to “the physics and chemistry of climate change” for admitting that “climate change has no boundaries” before contradicting itself with an assertion that emissions in one province have “grievous” impacts on adjacent ones.

He also mocks the decision’s claim that “The effects of climate change have been and will be particularly severe and devastating in Canada”, saying “There is no evidence to support this assumption.” And certainly none that the court actually weighed. Despite which, Wright adds with citations, both law professors and lower court judges:

“have wrongly treated Greenhouse Gas as having made a factual finding of an existential threat to human life. What could be their argument? They point to three paragraphs (9-11) in the decision’s Background section asserting a range of climate change impacts…. One could assume from reading only the Background that Justice Wagner and his concurring justices were merely reciting facts determined through separate evidentiary procedures and argument, to be discussed later in the decision. But the majority provided no source for anything stated in the Background. And as Greenhouse Gas itself involved no evidentiary procedures, then what could have been the source of the ‘existential threat’ declaration?”

He’s glad you asked, because:

“A search of the court files shows that the Background (and other factual matters) was assembled from an affidavit in Canada’s Record by a federal manager, John Moffet, an assistant deputy minister with Environment and Climate Change Canada. According to Moffet’s affidavit, he ‘led the development of the federal GHG emissions pricing system, including development of the Greenhouse Gas Pollution Pricing Act.’ He is a corporate lawyer by training, with no apparent expertise in climate change causes or impacts. The majority’s Background is a collation of some four different paragraphs from Moffet’s affidavit. Clauses have been reorganized and transposed. One matter has been exaggerated.”

After untangling some of the cutting and pasting involved, Wright states indignantly that:

“Canadian evidentiary rules do not allow for reliance upon a federal government manager’s affidavit for dispositive proof of an existential threat to an entire nation and indeed the whole planet. Moffet was neither disinterested in the dispute nor an expert on any aspect of climate science or any related scientific discipline that would qualify him as an independent expert witness.”

Now we are, and always have been, strong advocates for the involvement of intelligent and informed lay people in the debate on climate as on all public issues. Indeed it is hard to see how self-government could possibly work if we were sternly denounced for having views, doing our own research, and putting forward arguments on everything from tax policy to defence to the economics of health care. But we insist that if alarmists insist on dismissing people who disagree with them for lacking the relevant formal credentials, they should do the same to people who agree with them. (And to themselves when, as so often, they too lack them.)

We further insist, at the risk of seeming rustic, that people making major and consequential decisions on key policy issues should actually do some research, instead of just shuffling around fragments of congenial discourse in an echo chamber before carving them in stone.