Ford government sued by Greenpeace for cancellation of cap and trade without consultation

Doug FordUpdated September 11:

On September 11, CBC News broke the news that “Greenpeace suing Ontario government over cancellation of cap-and-trade program” The lawsuit was filed  in Ontario Superior Court by EcoJustice and the University of Ottawa’s Ecojustice Environmental Law Clinic.  It asks the Court to quash the legislation, on the grounds that the Conservative government “unlawfully failed” to hold public consultations before cancelling  the program, as required by Ontario’s Environmental Bill of Rights. An expedited hearing on the matter has been granted and scheduled for September 21.  The EcoJustice press release of September 11 is here .

At issue is Bill 4, The Cap and Trade Cancellation Act, 2018 , introduced in July to honour a campaign pledge to repeal Ontario’s cap and trade program, authorized through the Climate Change Mitigation and Low-carbon Economy Act, 2016  of the previous Wynne government.  Yet as the National Observer  reported on August  15, “Ontario legislature adjourns without adopting Ford government bill to cancel cap and trade” .  The article also compiles expert opinion and reaction to the move, and notes  that the government will be expected to propose new greenhouse gas emissions reduction targets when the Ontario legislature returns for its fall sitting on Sept. 24.

In “Ford government does U-turn, expands electric vehicle rebates for Tesla buyers”  (Aug. 31), CBC reports on another Court case involving the rookie Ford government.  The Court ruled against the government and in favour of  Tesla, which had claimed that it had been discriminated against when the government discontinued electric and hybrid vehicle sales incentives.   The CBC quotes Sara Singh, an Ontario NDP MP, who stated in August:  “This is likely only the first of many decisions against the Ford government’s decision to rip up hundreds of cap-and-trade and green energy contracts.” The Huffington Post compiled a list the legal actions against the government, on a variety of fronts, on Sept. 5.

Others who have weighed in on Ford’s climate and energy policies: Climate Action Network, along with 37 signatories,  sent an Open Letter to Premier Ford  on August 8.  It documents the heat and fire emergencies throughout the province in the summer of 2018, and calls for a public commitment, along with a detailed plan,  to achieve Ontario’s existing legislated emissions reduction goals.  Environmental Defence maintains an online petition calling for similar action.

Regarding Ford’s cuts to renewable energy programs: A widely-cited article appeared in Forbes magazine: “Ontario’s Economic Investment Outlook Dims With New Government Energy Actions”  (Aug. 13)   (and was re-posted by the Pembina Institute )  stating:  “In one fell swoop Ontario’s government has dramatically slashed a source of funding for clean transportation infrastructure to help consumers lower travel costs, erased hundreds of clean energy projects to help consumers reduce electricity costs, dimmed the prospects for jobs and economic growth from clean tech industries, and took a major step backwards in making the province an attractive climate for business and investment today – and into the future.”

B.C. Municipalities urged to take fossil fuel giants to court

In January,  West Coast Environmental Law and over 50 other environmental, health, human rights, women’s rights, and faith-based organizations sent an Open Letter  to local municipalities in British Columbia, urging them  1.) to write to fossil fuel companies, demanding accountability for the climate change costs being borne by citizens , and 2.) To consider participating in a class action lawsuit against the big polluters.  As part of their new  initiative, called   Climate Law in Our Own Hands  , West Coast Environmental Law is offering legal research and support to interested local governments, as well as template letters and fossil fuel company addresses to facilitate the  letter-writing campaign.  WCEL argues that fossil fuel companies will only start working towards climate change solutions when they are held to account to pay their fair share for the damage being caused.   According to one of the Open Letter signatories, Sierra Club B.C. , “The Province of BC has estimated that Metro Vancouver Municipalities will need to spend $9.5 billion between now and 2100 to address rising sea-levels (about $100 million per year on average).”  The list could continue to add wildfires, the destruction of forests by the mountain pine beetle, drought, and extreme weather.

WCEL  is not new to this issue, but rather have been active since the 2015 landmark Urgenda case in the Netherlands , when they released their report  Taking climate justice into our own hands  , which included a draft Climate Compensation Act .  The new website,  Climate Law in Our Own Hands maintains a blog about legal actions around the world, including a November 2016  report about  420 “grannies”  in Switzerland who are working with  Greenpeace Switzerland to launch a legal challenge  against the Swiss government for inadequately addressing threats to their health and future generations from climate change.  Other high profile court cases underway include the challenge to stop Arctic drilling  by  Norweigian youth and Greenpeace in Norway ,  and the ongoing cases led by  Our Children’s Trust   against the U.S. federal and state  governments.  The federal case,  Juliana v.United States  first launched in 2015,  and most recently (November 10, 2016) has been permitted to proceed to trail, after Judge Ann Aiken issued an opinion and order denying the U.S. government and fossil fuel industry’s motions to dismiss .  The 21 plaintiffs, mostly teenagers, are suing for the constitutional right of future generations  to live in  a healthy and safe environment.

Environmental Rights in Alberta and in Canada: do we have the rights we need? A legal discussion and some practical examples

In December 2016, the Environmental Law Centre in  Alberta  published a series of reports to review the current state of environmental rights in the province, drawing on examples and information from other jurisdictions.  These reports are intended as educational materials;  the website  is open for comments and input.  The first report,    Do we have the rights we need? , identifies deficiencies:   “Narrow standing tests for legal reviews and hearings; gaps and insufficiency in cost awards to support participation and informed decision making; failures to adequately recognize and manage cumulative environmental effects;  insufficient review or hearing options for policies, regulation and administration of environmental decision making; and insufficient tools for engaging public participation in enforcement.”

While most Environmental Rights discussions are about procedures for establishing and enforcing rights, the report Substantive Environmental Rights relates to the right to a specific environmental condition, such as a “healthy”, “healthful” or “clean” environment.  This report discusses definitions, which can be set in statutes or regulations.  The report includes a helpful comparative table of language from other Canadian jurisdictions.

Third Party Oversight and Environmental Rights reviews and analyzes the use of administrative third party oversight bodies in various frameworks and other jurisdictions. The report makes recommendations for the design of a third party environmental oversight system for Alberta, where currently the provincial Auditor General does not have a specific environmental mandate, but conducts financial audits or process/system audits of various environmental matters.

The latest report, published on December 19,  Citizen Enforcement considers the question of who can enforce environmental laws and what types of enforcement mechanisms are available to them – in Alberta, but also Ontario, Quebec, Yukon Territory, the Northwest Territories and Nunavut, and the U.S.    The  report concludes that citizen enforcement  in Alberta relies primarily on the use of private prosecutions and the ability to request an investigation of an alleged violation, and  recommends additional citizen-based enforcement tools to bolster  enforcement capacity and to ensure accountability.

As for practical examples of the need for citizen involvement in environmental assessments and decision-making, Canadians need look no further than the federal government’s  current review of the Environmental Assessment Processes .  “EA Review – Report back from a public workshop” at Evidence for Democracy describes one person’s experience at the Environmental Assessment public consultations and summarizes the main concerns of attendees – including the need for transparency, community and traditional knowledge, and open and independent science.  In two recent articles in DeSmog Blog,  scientists describe how their input has been ignored in past environmental assessments and decisions, including the TransMountain pipeline expansion decision.  Read  “Canadian Scientists Say They’re Unsure What Trudeau Means When He Says ‘Science’ ”  (Dec. 15)  and “Open Science: Can Canada Turn the Tide on Transparency in Decision-Making?”  (Dec. 20) .  Yet there is an eagerness amongst young Canadian scientists to become involved;  an Open Letter  to the Prime Minister in November, signed by 1,800 young scientists and researchers, calls on the government to return scientific integrity to the environmental assessment process, and outlines five ways to do that, including the use of best available evidence, making information and data available to the public, evaluating cumulative impacts of projects and eliminating conflicts of interest. See “Five Ways to Fix Environmental Reviews: Young Scientists to Trudeau” in DeSmog Blog (Nov. 15 2016) .

The Youth of Norway are suing for their constitutional climate rights

The government of Norway and thirteen oil companies are being sued  by Greenpeace International and a Norwegian youth alliance called Nature and Youth, who are challenging the government’s decision to allow oil exploration in the Barents Sea.  The suit argues that further oil exploration violates  threatens Norway’s commitments under the Paris Climate Agreement and violates the constitutional right to a healthy and safe environment for future generations.  Two  Greenpeace blogs emphasize that this is meant to be an historic case, protecting the final frontier of the Arctic, and also exercising the  people-power of a new generation stepping up to hold governments accountable to their climate promises. Read “This is the People vs. Arctic Oil”  and  “Why we are taking Arctic Oil to Court” , which appeals to the global community for support.  (Note: the Greenpeace Canada also maintains an Arctic campaign  but the website doesn’t reflect the Norwegian case yet).   An article in Common Dreams,    “Norwegian Youth Taking Government to Court Over ‘Unconstitutional’ Arctic Drilling”   explains the case fully and makes the links with the U.S. case brought by James Hansen and  Our Children’s Trust  .  The groundbreaking federal lawsuit by Our Children’s Trust, having been challenged repeatedly by the fossil fuel industry,  is under review by a U.S. District Court Judge, who heard oral arguments on September 13 . A decision is expected by  mid-November, at which time the case will head to trial, or go to appeal.  Our Children’s Trust is the subject of an October article in Fusion: “Generational Injustice:  Inside the Legal Movement  suing for Climate Justice Now”   .

Climate Justice through Litigation: What will be the impact of the Paris Agreement?

Climate Justice:  The International Momentum towards Climate Litigation   offers a unique discussion of the intersection of climate litigation and climate negotiations, and whether the Paris Agreement will contribute to a growth in climate litigation. It also provides an up to date summary of past and current cases of climate litigation against companies and governments – focusing on the various grounds of human rights to a clean environment, liability for climate-change induced damages, climate refugees, and corporate deception in the U.S., Netherlands, Pakistan, Peru, the Philippines,  and New Zealand.  It examines past litigation in other sectors, including tobacco, asbestos and oil spills. Amongst the recommendations: the fossil fuel industry be removed from the climate negotiations process and banned  from having a role or voice in setting climate change policy;  introduce a levy on fossil fuel producers to partly fund the International Mechanism for Loss and Damage, which would  provide compensation for  individuals and communities.  Another recent but much briefer note, “Courts take on Climate Change” , published in Nature Climate Change in June, addresses the issue of liability and quotes Andrew Gage, Staff Counsel at West Coast Environmental Law , who asks, “Can you really have a business model that costs the world trillions of dollars a year and not have a conversation about who should be paying for that?” … “The question is, can such litigation play a role in accelerating the transition away from fossil fuels or is it only going to be bickering over who pays for the major damages we’re experiencing?” An example of such bickering is chronicled in a June 7 article in the New York Times, “Regulators Fear $1 Billion Coal Cleanup Bill” .

And who will be the lawyers who argue these cases?  Tom Lininger, a professor at the University of Oregon School of Law, proposes  a series of “green ethics” amendments to the American Bar Association rules in his paper  “Green Ethics for Lawyers” in the  Boston College Law Review .

Note that the Adapting Canadian Work and Workplaces to Climate Change (ACW) website recently  posted the 2015 presentation by Roger Cox, lead lawyer in the landmark Urgenda case.  See The Urgenda Climate Case and its Consequences  .