Carbon tax victory no green light for 'massive expansion' of federal powers, some legal experts say

The federalgovernment's Supreme Court of Canada victory to establish a national minimum price on carbon should not be taken as agreen light for Ottawa tobroaden its powers over provincial jurisdictions and centralize more control, some legal and political science experts say.

"I do think the decision, overall, was crafted carefully enough to avoid a slippery slope or massive expansion of federal power," Emmett Macfarlane, an associate professor of political science at the Universityof Waterloo,wrote in an email to CBC News.

In a 6-3 decision, the highest courtruled the federal Liberal government's carbon pricing regime the Greenhouse Gas Pollution Pricing Actis constitutional, rejecting the argument by some provinces that such action was an unconstitutional forayinto provincial jurisdiction.

It was also a significant rulingin that it was one of the rare times Canada's top court has allowedOttawa to successfully flex its powers over the provincesunder the Constitution's "peace, order and good government" clause, also known bythe acronym POGG.

In this case, the top court found that Parliamenthas the jurisdiction toimplement its carbon pricing act as a matter of "national concern" under POGG.

Writing for the majority,Chief Justice Richard Wagner argued thatthe threat ofclimate change "justifies the limited constitutional impact" and that it"readily passes the threshold test and warrants consideration as a possible matter of national concern."

However, Wagner also noted that "courts must approach a finding that the federal government has jurisdiction on the basis of the national concern doctrine with great caution."

Macfarlane, who also wroteGoverning from the Bench: The Supreme Court of Canada and the Judicial Role, said it wasdifficult to see how, with this ruling, thefederal government would push itsauthority in other policy contexts.

'Wasn't altered by the Court'

"Any attempt by the federal government to do so would still face a fairly onerous 'national concern' test under POGG or its other branch, the 'emergency' test, the latter of which wasn't altered by the court in this case," he said.

The federal government can only take action in situations when a concern has been established but provinces have failed to act, Macfarlane said.

WATCH: Federal environment minister reacts to Supreme Court's carbon tax decision

Environment minister reacts to Supreme Court's carbon tax decision

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Federal Minister of Environment Jonathan Wilkinson says the government wants to work with the provinces on carbon pricing.

But Macfarlane noted the three dissenting Supreme Court justices raised a number of valid concerns,including the scope, reach, and complexity of the federal law.

In a his dissenting opinion, Justice Russell Brown wrotethat the ruling would have wider implications and open the door to "federal intrusion into all areas of provincial jurisdiction."

Gerald Baier, an associate professor of political scienceat the University of British Columbia, said the decision seems to strengthen the federal government's hand in somejurisdictional disputes with the provinces.

However, he noted the top court has not allowedthe federal government to use the POGG clause since the late 1980s and "continues to sound a note of caution in this case as well."

"The court has had opportunitiesover the last [few]decades to expand federal powers under peace, order and good governmentand they've declined to take them every time," Baier said in a phone interview.

The last time the federal government was successful in making such a POGGargument before the Supreme Courtwas more than 30 years ago, in a 1988 case involving the dumping of waste in provincial marine waters.

'Controversial kind of federal power'

"It's been a very controversial kind of federal power. And the reason is that it was thought to give the government broad scope to regulate areas that would normally bewithin the provincial jurisdiction," saidSujit Choudhry, a lawyer and expert in constitutionallaw.

"Andso it's been used very sparingly by the court."

In the carbon tax case, Choudhry said the court was "very alert" to theconcerns of provincialjurisdiction encroachmentand that its decision narrowed the scope of the assertion of federal authorityjust to theminimum standards of greenhouse gas pricing.

"I think thatit'll be difficult, quite frankly, for anyone to come forward and argue that the national concernbranch of the POGG power can be used for something else," he said.

"Thecourt did kind of make it clear that this was a very unusual case."

WATCHAlberta Premier Jason Kenneysays he's disappointed with the top court's decision

Alberta premier reacts to Supreme Court carbon price ruling

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Jason Kenney expressed disappointment with the Supreme Court's decision in favour of the federal Liberals' carbon tax

Nathalie Chalifour, a law professor at the University of Ottawa, said while it was very significant for the court to confirm the federal Liberal government's authority to implement theGreenhouse Gas Pricing Act, it was very careful in doing so.

'Very precisely defined'

"They focus in on pricing as the means. And I think that was partly an attempt to constrain federal jurisdiction and make sure that it's very precisely defined," she said.

"They did that really to ensure that they were not overstepping provincial jurisdiction."

Baiersaid based on the court's history of deferring to provinces,he doesn't belive this decisionis a signalthat Supreme Court is trying to take Canada in a more centralized direction.

"I think the potential for peace, order and good governmenthas since 1867 been really big andthe Supreme Court has never really given it the scope that the federal government would like."

Watch:Carbon price will go up in New Brunswick April 1, premier says:

Carbon price will go up in New Brunswick April 1, premier says

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New Brunswick Premier Blaine Higgs joins Power & Politics Friday to discuss the Supreme Court's ruling that the federal carbon tax is constitutional.

You can watch full episodes of Power & Politics onCBC Gem, the CBC's streaming service.