As reported in the Labor Network for Sustainability newsletter, “the Pacific Coast Federation of Fishermen’s Associations, a union representing 900 family-owned fishing boats on the Pacific coast, is suing Chevron, Exxon, BP, Shell, and other oil and gas companies for covering up research that warned about the dangers of burning fossil fuels. The union wants compensation for damage caused by global warming and to meet the cost of new infrastructure to cope with the climate crisis. They also demand changes in fossil fuel industry behavior.” The suit is summarized by The Guardian in “Toxic waters devastated Pacific Coast fisheries. But who’s to blame?” (Nov. 20) . The PCFFA has published a report , “Combatting Global Warming and Acidic Seas” , which documents the impacts on the livelihoods of the fishers.
Alongside the continuing disaster of North America’s heat, drought, and wildfires has come Hurricane Ida on the Gulf Coast, U.S. Northeast, even as far as Quebec. Only 4% of broadcast media in the U.S. linked Hurricane Ida to climate change – preferring to report on the flooding, storm surge, resulting power losses, evacuations, oil spills in the Gulf of Mexico, death and destruction. Yet with less media attention, scientists worldwide have published recent studies unequivocally linking such weather extremes with climate change and human activity. Notable examples over the summer : 1. Climate Change 2021: the Physical Science Basis, the first installment of the Sixth Assessment Report (AR6) by the U.N. Intergovernmental Panel on Climate Change (IPCC) Working Group I, 2. The WMO Atlas of Mortality and Economic Losses from Weather, Climate and Water Extremes (1970–2019) released by the World Meteorological Organization on August 31, and 3. The WMO Air Quality and Climate Bulletin , launched on September 1.
The world’s scientists issue a Code Red warning in the IPCC 6th Assessment
At almost 4,000 pages, the full IPCC report, Climate Change 2021: the Physical Science Basis, is a comprehensive compilation and assessment of the latest research by the world’s scientists. More readable and less technical: the Summary for Policymakers , or the official Fact Sheet . The U.N. press release announcement was accompanied by warnings of the “Code Red” situation: irreversible climate-related damage is already underway across the world, and immediate, strong and sustained reductions in emissions of carbon dioxide and other greenhouse gases are urgently needed. The report was summarized widely: for example, in “Global Climate Panel’s Report: No Part of the Planet Will be Spared” (Inside Climate News, Aug. 9); by Carbon Brief here ; or by The Guardian here .
An analysis of coverage by 17 international newspapers found that Canadian news outlets, with the exception of the Toronto Star, were particularly poor at explaining the IPCC report – as summarized in “When Dire Climate News Came, Canada’s Front Pages Crumpled “ in (The Tyee, Aug. 19). However, outside of the mainstream media, here are some noteworthy examples of Canadian news coverage:
“Climate scientist John Fyfe explains why new IPCC report shows ‘there’s no going back’” (The Narwhal, Aug. 12)
“It’s Code Red for the Climate. Will BC Do Anything about It?” (The Tyee, Aug. 10)
Two blogs by David Suzuki in Rabble.ca “Climate report shows world pushed to the brink by fossil fuels” and “IPCC report could be a legal game-changer for climate“(Sept. 1)
“IPCC warns of climate breakdown, politicians warn of each other” (National Observer, Aug. 9)
“U.N. Climate Report scapegoats “human activity” rather than fossil-fuel capitalism” (Breach Media), which states: “We should welcome the latest IPCC Report for its scientific insight. But we should also understand it as an ideological document that obscures the crucial systemic causes of climate change. For advice on what social forces could push forward climate solutions, readers will have to look beyond the thousands of pages generated by the IPCC.”
Extreme weather disasters caused US$ 3.64 trillion, 2 million deaths between 1970 and 2019
A second new international scientific report is The WMO Atlas of Mortality and Economic Losses from Weather, Climate and Water Extremes (1970–2019), released on August 31 by the World Meteorological Organization. It aggregates and analyses statistics on world disasters, with continent-level breakdowns. It reports that there were more than 11,000 disasters attributed to weather, climate and water-related hazards between 1970 and 2019, accounting for just over 2 million deaths and US$ 3.64 trillion in economic losses. This represents 50% of all recorded disasters, 45% of related deaths and 74% of related economic losses over the last 50 years. Food for thought for those who say that fighting climate change is too expensive!
The WMO Atlas includes an extensive discussion of current and new statistical disaster databases, and how they can be used to reduce loss and damage. It also includes a brief explanation of “attribution research”, which seeks to determine whether disasters are human-caused. ( A recent article in Inside Climate News is more informative on the issue of attribution science, highlighting the research of the World Weather Attribution network, which has already published its findings about the German flooding in July 2021).
Finally, on September 3, the WMO also published the first issue of its Air Quality and Climate Bulletin , highlighting the main factors that influence air quality patterns in 2020 – including a section titled “The impact of Covid-19 on air quality.” The Bulletin concludes that there is “an intimate connection between air quality and climate change. While human-caused emissions of air pollutants fell during the COVID-19 economic turndown, meteorological extremes fuelled by climate and environmental change triggered unprecedented sand and dust storms and wildfires that affected air quality…. This trend is continuing in 2021. Devastating wildfires in North America, Europe and Siberia have affected air quality for millions, and sand and dust storms have blanketed many regions and travelled across continents.”
In another section, “Global mortality estimates for ambient and household air pollution” the new Bulletin states that global mortality increased from 2.3 million in 1990 to 4.5 million in 2019 (92% due to particulate matter, 8% due to ozone). Regionally, present-day total mortality is greatest in the super-region of Southeast Asia, East Asia and Oceania, with 1.8 million total deaths.
Although the Supreme Court decision about Canada’s carbon pricing system on March 25 was undoubtedly historic, it overshadowed the news of another historic legal decision on that date, when an Ontario Divisional Court dismissed the provincial government’s second attempt to stop the youth-led challenge to its greenhouse gas emissions reduction targets. In “Youth climate case forges ahead after court affirms historic decision”, EcoJustice describes that the case of Mathur et. al. v. Her Majesty in Right of Ontario, which has now become the constitutional challenge to climate change that has advanced the furthest in Canada.
Some background: The case of Mathur et. al. v. Her Majesty in Right of Ontario was first brought by seven youth in November 2019, following the Conservative government’s passage of the Cap and Trade Cancellation Act. The plaintiffs, represented by Ecojustice and Stockwoods LLP, claimed that Ontario’s GHG emissions reduction target is insufficiently ambitious, and that the province’s failure to set a more stringent target infringes the constitutional rights of youth and future generations, under Canada’s Charter of Rights and Freedoms. In November 2020, the Superior Court of Ontario upheld the claims, in the decision which the provincial government sought to overturn. As of March 25, the case can now proceed to a full hearing, though no date has been set.
Climate Change and the Right to a Healthy Environment in the Canadian Constitution is a legal article which appeared in the Alberta Law Review in 2020. The authors describe and contrast the legal approaches used in the Mathur case and in the LaRose case, which was dismissed by Canada’s Supreme Court in October 2020. Ecojustice has posted frequently on the case, and Alberta’s Environmental Law Centre also featured the Mathur case in a detailed blog in November 2020.
The first and most high-profile youth climate case in the world, is Juliana v. U.S. Government . A timeline is here, reflecting the progress from the initial filing in 2015 till March 9 2021, when Our Children’s Trust filed a motion to amend the complaint and adjust the remedy sought, after repeated roadblocks in the case.
On January 26 the United Nations Environment Programme and the Sabin Center at Columbia University published Global Climate Litigation Report: 2020 Status Review , revealing a “growing tidal wave of climate cases” which show “how climate litigation is compelling governments and corporate actors to purse more ambitious climate change mitigation and adaptation goals.”
The report states that as of July 1, 2020, at least 1,550 climate change cases have been filed in 38 countries around the world – nearly double the number of cases in the previous report published in 2017, which had documented 884 cases brought in 24 countries. The report summarizes key trends in cases – “ ongoing and increasing numbers of cases relying on fundamental and human rights enshrined in international law and national constitutions to compel climate action; challenging domestic enforcement (and non-enforcement) of climate-related laws and policies; seeking to keep fossil fuels in the ground; claiming corporate liability and responsibility for climate harms; addressing failures to adapt and the impacts of adaptation; and advocating for greater climate disclosures and an end to corporate greenwashing on the subject of climate change and the energy transition.” The report also notes emerging issues in the next five years, including increased attention to attribution studies, and highlights significant and precedent-setting cases throughout.
Global Climate Litigation Report: 2020 Status Review is current to July 1, 2020. Since then, at least three more important cases have been decided: 1. in December 2020, a U.K. coroner ruled that “Air pollution a cause in girl’s death, coroner rules in landmark case” (The Guardian, January 2021); 2. an Appeals court in France overturned an expulsion order against an asthmatic man because he would face “a worsening of his respiratory pathology due to air pollution” in Bangladesh, his home country (the significance described in The Guardian in “Air pollution will lead to mass migration, say experts after landmark ruling” , with more details here). And 3. on January 29, 2021, a Dutch Appeals court brought an end to a case begun in 2008, when it upheld a decision against Royal Dutch Shell petroleum, finding it responsible for multiple oil spills and leaks which poisoned farmland in the Niger Delta. A Reuters report quotes Friends of the Earth, saying “the ruling exceeded all expectations and marked the first time a multinational had been instructed by a Dutch court to uphold a duty of care for foreign operations.” The case is also summarized in “After 13 years, Justice: Dutch court orders Shell to pay for harm done to Nigerian farmers and in Deutsche Welle in “Dutch Court rules Shell liable for Niger Delta oil spills” .
And in the United States, a potentially landmark case of climate liability is underway as of January 2021. According to a summary at NPR the city of Baltimore is presenting its claim for the cost of climate-related damages against more than a dozen major oil and gas companies including BP, ExxonMobil and Shell. According to NPR: “The Supreme Court will announce its decision later this year on the narrow question of whether the Baltimore case should be considered in state or federal court. If the justices decide in favor of the companies and the case proceeds in federal court, it’s possible that the lawsuit will be eventually dismissed without a trial. However, if the justices decide in favor of Baltimore, it is likely that the case will proceed in Maryland state court, which could require the companies in the case to turn over vast troves of documents about their businesses and marketing practices over the decades.” A multitude of legal documents have been compiled since the case began in 2018, and are available at the Sabin Center for Climate Change Law here.
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.”
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 .
New 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.
On 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., Norway, Pakistan, Ireland, Belgium, Colombia, Switzerland and New Zealand.
The 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.
Updated 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.”
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.
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 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: 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 .
“Environmental Activists Take to Local Protests for Global Results” in the New York Times (March 19) features the arrest of Bill McKibben at a protest at Seneca Lake, New York, and illustrates the growing climate protest movement. Case in point: Breakfree 2016 is scheduled for May 4 – 15, and will coordinate a “global wave of mass actions will target the world’s most dangerous fossil fuel projects, in order to keep coal, oil and gas in the ground and accelerate the just transition to 100% renewable energy.” In “A New Wave of Climate Insurgents Defines Itself as Law-Enforcers”, Jeremy Brecher of Labor for Sustainability characterizes the Breakfree protests as part of a “climate insurgency”, which is seen “not only as a moral but as a legal right and duty, necessary to protect the Constitution and the public trust for ourselves and our posterity”. Brecher catalogues other U.S. examples, including the court challenges led by Our Children’s Trust . In an article in Rolling Stone , (March 12), the children’s case is described as part of an emerging legal strategy dubbed “Atmospheric Trust Litigation”.
In contrast to the right to protest that many North American activists enjoy, there stands the murder on March 3 of Berta Cáceres , the Honduran Indigenous and environmental rights campaigner and winner of the Goldman Environmental Prize in 2015. A website for Berta http://bertacaceres.org/ tells her story and that of other environmental activists worldwide, and compiles the calls from around the world of outrage and for an independent inquiry. In Canada, a rally was held at the Honduran embassy in Ottawa on International Women’s Day.
The landmark Urgenda decision in the Netherlands in June 2015 has ignited and re-ignited activity around the world, around the prospect of using litigation to fight climate change . “Unlawful or Above the Law? ” in the CCPA Monitor (Nov/Dec. 2015) reviews the Urgenda decision in detail, and puts it in the context of Canadian policy and historical legal cases which have challenged Canada’s withdrawal from the Kyoto Protocol. A fuller treatment of the article, titled Canada’s Failure to Reduce Greenhouse Gas Emissions (October 31, 2015) appears on the Lawyers’ Rights Watch Canada website . The authors advocate a legal challenge to Canada’s GHG emissions reduction policies. Much of the legal argument is based on the concept of environmental rights as human rights; a Canadian pioneer on this issue is David R. Boyd, whose article “ The Constitutional Right to a Healthy Environment” appeared in Environment Magazine in 2012 . (a fuller treatment appears in his book The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment (2012)). A more recent publication by Ecojustice, The Right to a Healthy Environment: Canada’s Time to Act (2015) , acknowledges a large debt to Boyd’s work, and the BlueDot movement of the David Suzuki Foundation works in practical ways towards the goal. In December 2015, Toronto became the 100th municipality in Canada to pass a declaration supporting its residents’ right to a healthy environment . Climate Change: Tackling the Greatest Human Rights Challenge of our Time (Feb. 2015) by the Center for International Environmental Law and CARE considers how to address the issue within the UNFCCC process.
Regarding liability for climate change damages, West Coast Environmental Law in B.C. and the Vanuatu Environmental Law Association released Taking Climate Justice into our own Hands on December 8, 2015 “which explains the legal basis for climate-impacted countries to set the rules for climate damages lawsuits and how those rules can be enforced against international fossil fuel polluters.” Further, the authors propose language for a Climate Compensation Act, based on common law and thus adaptable to in any country in the world. (Vanuatu released a Statement for Climate Justice in June 2015 ). A newly-launched blog series by the Alberta Environmental Law Centre promises “to provide updates on climate change law developments and include insights from our related law reform research.”
The Sabin Center for Climate Change Law at the Columbia Law School, New York, publishes compendium of cases in the U.S. and non-U.S. , and maintains a database called Climate Change Laws of the World . In 2015, the Center published Climate Change in the Courts: An Assesment of non-U.S. climate litigation , as well as Climate Change and Human Rights 2015 (in cooperation with UNEP). The introduction states: “The question is no longer whether human rights law has anything to say about climate change, but rather what it says and how it can best be brought to bear. This report is the most detailed and comprehensive study yet undertaken of those questions”.
In a November 2015 blog, “Failure to take climate action is not only morally wrong, it’s illegal” Michael Burger discusses the Urgenda and Ashgar Legari case in Pakistan, and links them to current climate change cases in the United States. Most high profile of these have been led by Our Children’s Trust, arguing for the right of children to live in a healthy environment. In November in Washington State , Judge Hollis Hill ruled in favour of youth, stating that “[t]he state has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people.” Other cases are being pursued by Our Children’s Trust in Massachusetts, North Carolina, Pennsylvania, and Colorado. In August 2015, Our Children’s Trust filed a landmark constitutional climate change lawsuit against the federal government in the U.S. District Court of Oregon; plaintiffs include 21 young people and climate scientist Dr. James E. Hansen, serving as guardian for his granddaughter and for future generations. The complaint document is here; the plaintiffs request a court order requiring the President to implement a national plan to decrease CO2 to a safe level, defined as 350 ppm by the year 2100. In January 2016, a judge granted intervenor status in the case to the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers ,the American Petroleum Institute, and other energy industry groups. To watch for: March 9, 2016: the first oral arguments will be heard in a Eugene Oregon court.
Internationally, cases claiming damages from climate changes are underway in the Philippines and Peru . To keep up to date internationally, follow eLaws News by the Environmental Law Alliance Worldwide (ELAW) , who have also published Holding Corporations Accountable for Damaging the Climate (2014) . The Center for International Environmental Law also focuses on climate liability and climate justice.