carbon tax legality
Supreme Court of Canada. (Photo credit: Dreamstime)

The Liberal government’s recent announcement that it is exempting home heating oil from its carbon pricing scheme has prompted significant criticism. This criticism has come from the environmental left, the taxation-skeptical right, the business community and leaders of all major provincial political parties, both left and right. 

The critiques include the carve-out being the antithesis of what the policy is intended to do; creating business uncertainty; privileging comparatively ‘dirty’ home heating oil over comparatively ‘clean’ natural gas; and demonstrating clear regional favouritism despite the policy as a whole being intended to create an equal national playing field.

Saskatchewan premier Scott Moe has made an extraordinary demand to the federal government: extend the exemption to all home heating fuels, or he will instruct SaskEnergy not to remit the carbon tax to Ottawa beginning January.

Moe admits that such an order would “probably” be illegal. But that “probably” is important. Because flying underneath the radar of the federal government’s recent policy reversal are at least three arguments that could imperil the carbon tax’s legality.

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Gerard Kennedy is an assistant professor in the University of Alberta Faculty of Law, where he teaches and researches in the areas of procedural law, administrative law and constitutional law.