Climate Youth in the Courts: Victory in Ontario, dismissal in Canadian court, and an appeal to the Supreme Court of Norway

The Environmental Law Centre of Alberta has been monitoring climate litigation cases worldwide, but events have overtaken their latest summary blog Climate Litigation in Canada and Beyond –Where Are We in 2020?  (Nov. 9) , which discusses the dismissal of the LaRose case in the Federal Court of Canada (more on that below). On November 12, Justice Carole Brown of the Superior Court of Ontario issued a landmark decision , allowing the case of Mathur et al.  to proceed to trial under Canada’s Charter of Human Rights and Freedoms.  The case is thoroughly described in a Backgrounder from the Ecojustice, who represent the seven youth. Their claim is that their rights were violated when the Ontario government under Doug Ford  passed the Cap and Trade Cancellation Act in 2018, weakening GHG emissions reduction targets for the province. According to Ecojustice, “The lawsuit aims to strike down Ontario’s current 2030 target as unconstitutional and enshrine the right to a safe, healthy climate as part of the right to life, liberty and security of the person in Section 7 of the Canadian Charter of Rights and Freedoms. This would require the Government of Ontario to set a new target in line with the scientific consensus, and revise its policies accordingly.”  The decision to allow the case to proceed is a first for Canada.

Federal Court of Canada dismisses an earlier youth-led case, LaRose vs. Her Majesty the Queen

On October 27, Justice Michael D. Manson of the Federal Court of Canada dismissed the case of LaRose vs. Her Majesty the Queen, and in the words of law professor Jason MacLean, slammed the door on big, “holy grail” climate cases in Canada. The LaRose case was filed in 2019 by 15 youth who used the Public Trust doctrine under section 7 of the Charter of Rights and Freedoms to argue that the federal government is violating their rights to life, liberty and security of the person, and failing to protect essential public trust resources. Further, they call on section 15 of the Charter regarding equality, alleging that  youth are disproportionately affected by the effects of the climate emergency.  Although Justice Manson agreed that “the negative impact of climate change to the Plaintiffs and all Canadians is significant, both now and looking forward into the future,” he declined to allow the case to proceed because the questions raised “are so political that the Courts are incapable or unsuited to deal with them.” Lawyers for the case will appeal.  The legal organizations supporting the LaRose case reacted to the decision: the Pacific Centre for Environmental Law and Litigation (CELL) here , and U.S.-based Our Children’s Trust here . Our Children’s Trust also maintains a timeline and compilation of documents here.

The LaRose case was summarized in “Kids facing effects of climate change are taking their governments to court” in The Conversation (Nov. 2019), with an explanation of the public trust doctrine.  After the decision, a brief summary appeared in  “Federal judge tosses youth climate case against Ottawa” (National Observer, Oct. 27). In  “Why the youth climate court case failed and what’s next for Canadian climate policy” (The Conversation, Nov. 3) Jason MacLean, Assistant Professor of Law at the University of New Brunswick, summarizes the case and concludes that the federal court’s decision “slams the door”, but also looks for broader hope in the prospects for more specific, smaller climate cases – referring to “The Unsexy Future of Climate Litigation” (Journal of Environmental Law, 2018) for his framework, and citing the current example of the Grassy Mountain coal mine project in Alberta as an example of such a specific case.

Previous attempts by Canadian youth to fight for climate rights in courts include ENvironnement JEUnesse, which is currently under appeal after being denied the right to proceed by the Quebec Superior Court in 2019 .

Rebellion is a new documentary episode by The Nature of Things, a flagship production of the Canadian Broadcasting Corporation. It profiles some of the youth involved in the Canadian court fights.

Youth in Norway take their climate case to the Supreme Court

In a case known as People vs. Arctic Oil , Young Friends of the Earth Norway (also known as Nature and Youth) have challenged their government’s 2016 decision to license oil drilling in the Barents Sea of the Arctic. Their challenge, now before the Supreme Court of Norway in November, is being described by Greenpeace Norway (a co-plaintiff),  as internationally precedent-setting, potentially as important as the Urgenda decision in the Netherlands. The New York Times reported on November 5  that it is  being called “the case of the century” in the Norwegian press. The court case finished in mid-November, with a decision expected in early 2021.

The Sabin Center Climate Case Litigation Database offers an archive of all official documents in the Norwegian case, and  Greenpeace Norway provides a chronology and a layman’s summary of the case decisions in English.  The Greenpeace website also provides the new information that the government’s decision to issue oil licenses was based on incorrect economic analysis and that  “Ministry of Petroleum and Energy has been sitting on updated calculations they did not present to the Parliament, which shows that the profitability of the oil fields is questionable.”    

16 young people file landmark petition for climate action under the U.N. Rights of the Child

On September 23, climate activist Greta Thunberg made an emotional, unforgettable speech to the on the U.N. Climate Summit in New York City. The full Youtube video is here ;  her words are reproduced by The Guardian in an Opinion Piece titled “If world leaders choose to fail us, my generation will never forgive them”, and stating: “We are in the middle of a climate breakdown, and all they can talk about is money and fairytales of eternal economic growth.”  A summary from The Guardian is here .

petition-kids_michael-rubenstein-800New landmark climate litigation

Also on September 23, Greta Thunberg and fifteen other young people from around the world submitted a groundbreaking legal petition to the United Nations Committee on the Rights of the Child. Respondent countries Argentina, Brazil, France, Germany, and Turkey are the largest polluters amongst the 45 countries in the world which have ratified the UN Convention on the Rights of the Child and agreed to an additional protocol that allows children to petition the UN directly about treaty violations.

The young people contend that these five countries are violating their rights under the Convention by failing to curb emissions and promoting fossil fuels, despite have known about the risks of climate change for decades.  They are asking the U.N. Committee to make specific recommendations to the five nations about what they need to do to meet their treaty obligations, including changing laws to speed up the response to climate change and applying more diplomatic pressure on big polluters like the United States and China.

The complaint was prepared and filed on behalf of the youth petitioners by the international law firm Hausfeld LLP and the nonprofit environmental public interest law organization Earthjustice – whose press release is here . A dedicated website, Children vs Climate Crisis provides biographies and statements from each of the children, a copy of the 101-page Petition ,and a 338-page Appendix  with detailed statements of the impacts on the petitioners’ lives.

The Earthjustice website  is hosting a petition in support of the children’s case.

Urgenda decision upheld: victory for citizens’ climate rights comes just ahead of Juliana v. United States

urgenda-logoOn October 9, the Hague Court of Appeal upheld the lower court ruling in the landmark case of  Urgenda Foundation v. The State of Netherlands , which in  2015 was the first case in the world to rule that governments have a “duty of care” to protect their citizens against climate change. The 2015 ruling ordered the Dutch government to cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels).  The Urgenda Foundation press release is here ; a compilation of documents by the Foundation, including the text of the decisions, is here  and an English-language Explainer is here.  The article in Climate Liability News expands on the global importance of this decision, which has inspired other court challenges in U.S., NorwayPakistanIreland,  Belgium, Colombia, Switzerland and New Zealand.

see you in court tshirtThe Urgenda decision comes just as the highly- publicized Juliana v. United States case proceeds to its next court appearance on October 29.  Juliana vs. the United States was originally filed in Oregon in 2015 under the Obama administration, and argues that the 21 young plaintiffs have constitutional rights to life, liberty and property, which are currently jeopardized by federal climate change policies.   It is led by Our Children’s Trust and has been called “the trial of the century” and has received media attention throughout the ongoing challenges from the federal government.

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.