Canadian youth sue federal government seeking stronger climate action

Larose plaintiffs 2019Just days after the federal election, on October 25, fifteen Canadians aged 10 to 19 launched a lawsuit in federal court, seeking a court-ordered plan for climate change based on the best available science.  The plaintiffs, from seven Canadian provinces and the Northwest Territories, announced their suit in Vancouver at the Fridays for Future climate strike alongside Greta Thunberg and recounted their personal experiences, including asthma, Lyme disease, mental health challenges, and injuries from wildfire smoke.

The Statement of Claim   in La Rose v. Her Majesty the Queen alleges that by failing to  protect essential public trust resources like air and water,  the Canadian government has violated the children’s right to life, liberty and security of the person under Section 7 of the Charter of Rights and Freedoms. It also alleges that the government has violated Section 15 of the Charter, since youth are disproportionately affected by the effects of climate change.   A press release from the David Suzuki Foundation includes quotes from some of the individuals involved; the case was widely reported in the following sources:  the CBC , The Energy Mix ,  the National Observer, Toronto Starand the Vancouver Star  .

This is the second climate change case brought by Canadian youth: in 2019,   ENvironnement JEUnesse brought  a class action suit on behalf of Quebecers under the age of 35, which argued that the Canadian government was violating the class members’ fundamental rights by failing to reduce greenhouse gas emissions sufficiently to ensure a safe climate. In July 2019, the Quebec Superior Court dismissed the petitioners’ motion because it rejected the nature of the class , namely, the age limit of 35 years. The case is under appeal.

 

The children in La Rose v. Her Majesty the Queen  are represented by the B.C. law firms of Arvay Finlay LLP and Tollefson Law Corporation, and supported by the Pacific Centre for Environmental Law and Litigation (CELL) , the David Suzuki Foundation, and Our Children’s Trust in the U.S., which pioneered the pending landmark youth case of Juliana vs. United States.  Our Children’s Trust compiles information on climate change lawsuits around the world including Australia, Belgium, Columbia, France, India, the Netherlands, Norway, Pakistan, the Philippines, Uganda, Ukraine, and the United Kingdom. The Sabin Center for Climate Change Law at New York’s Columbia Law School maintains a database of cases in the U.S., and a separate database from the rest of the world – approximately 1400 climate lawsuits against governments and fossil fuel corporations in more than 25 countries.

Climate change litigation in Canada: ENvironnement JEUnesse is under appeal

environnement jeunesse demonstrationA September blog published by legal firm Aird Berlis  summarizes the July 2019 decision of the Quebec Superior Court in Canada’s youth climate change litigation: ENvironnement JEUnesse v. Canada.  The environmental group  ENvironnement JEUnesse also summarizes the progress of the case, which sought to represent Quebecers under the age of 35 in a class action suit, arguing that the Canadian government was violating the class members’ fundamental rights by failing to reduce greenhouse gas emissions sufficiently to ensure a safe climate. In July 2019, the Quebec Superior Court dismissed the petitioners’ motion because it rejected the nature of the class proposed by the petitioners, namely, the age limit of 35 years. Lawyers for ENvironnement JEUnesse filed an appeal of the decision in August and await a hearing. The French-language decision is here ; an unofficial English-language translation posted by Columbia Law School is here .  ENvironnement JEUnesse  sees itself as part of the global movement of climate litigation begun with the Urgenda decision in The Netherlands, and summarizes other cases around the world on its English-language website. The French-language website is much more informative – in addition to updates on the case, it posts news on the Quebec climate youth movement and its  annual conference.

Ontario Court rules that government broke the law by failure to consult on repeal of Cap and Trade regulations

doug ford scrap the taxA suit against the Conservative Ford government of Ontario was dismissed by the Ontario Divisional Court on October 11, but in the decision, a majority of judges wrote that the government breached Ontario’s Environmental Bill of Rights (EBR) by repealing the province’s Cap and Trade regulations without the required public consultation.  The CBC summarizes the decision and the National Observer writes,

“the judges found the Ford government was in “clear breach of the EBR” and that “its apparent efforts to avoid judicial review of this conduct raises serious concerns – not about whether the government had the lawful authority to repeal the Cap and Trade Act, but of its respect for the Rule of Law and the role of the courts, as a branch of government.”

The suit was brought by Greenpeace and Ecojustice in 2018.  The Greenpeace reaction on October 11 states:

“Scrapping cap-and-trade not only undercut a successful program that was helping Ontario reduce climate change-causing greenhouse gas emissions, it also cancelled 227 clean energy programs that would have benefit schools, hospitals, small businesses and public housing projects. It’s especially concerning that the Ford government did this in a way that silenced groups like Greenpeace and Ontario’s youth – who do not have a voice to vote, but stand to lose the most from climate inaction… Ontarians are marching in the streets demanding real action in response to the climate emergency and we call on the Ford government to listen to the people this time, starting with an abandonment of its challenge of the federal carbon tax.”

The Greenpeace statement also refers to Failure to Launch , a progress report on climate action in Ontario released on October 10 by Environmental Defence. A blog summarizes the findings; the full report is here , describing the destruction of climate change policies from the previous Liberal government, and making recommendations for improved future action.

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.

Parliamentary committee recommends a legislated right to a healthy environment in its review of the Canadian Environmental Protection Act

On June 15, the Standing Committee on the Environment and Sustainable Development tabled its report, Healthy Environment, Healthy Canadians, Healthy Economy: Strengthening the Canadian Environmental Protection Act, 1999,   and the French version, Un Environnement Sain, des Canadiens et une Économie en Santé : Renforcer la Loi Canadienne sur la Protection de l’environnement (1999).

Called a “ground-breaking”  report by the David Suzuki Foundation, this review of  the Canadian Environmental Protection Act (CEPA)  makes 87 recommendations to modernize the law.  The Ecojustice blog ,  “Much to celebrate in committee report on Canadian Environmental Protection Act”  summarizes some of the recommendations, including  the  introduction of national drinking water and air quality standards; “stronger enforcement provisions to ensure polluters are held to account; improved transparency, public reporting and consultation requirements; and faster timelines to ensure regulatory action is taken swiftly once a toxic threat is identified”.  Most important, however, is the recommendation that the Act recognize and protect the right of every person in Canada to a healthy environment – a right recognized in 110 other countries.

The reaction  from  East Coast Environmental Law also notes this right to a healthy environment, and emphasizes the environmental justice implications:  “ The Report… suggests that the importance of environmental rights to Indigenous peoples and vulnerable populations should be emphasized.  … The Report acknowledges that environmental burdens aren’t shared equitably by communities across Canada, …… it also makes a number of recommendations that address environmental injustice. For example, it recommends that the Act be expanded to include an obligation to protect the environment in a non-discriminatory way; that it enhance the procedural rights that protect access to information, access to justice, and public participation in environmental decision-making; that it address the inequitable burden of toxic exposure in Canada; and that it recognize the principles enshrined in the United Nations Declaration on the Rights of Indigenous Peoples.”

The response from the David Suzuki Foundation also summarizes the recommendations, and makes clear that these are not yet law.  The  Minister of Environment and Climate Change, and eventually Cabinet, will consider the report, with legislation expected in the fall.   Ecojustice calls it “ a once-in-a generation opportunity to dramatically improve our most important environmental law.”

Environment and Climate Change Canada has compiled links to a history of CEPA . The Standing Committee website is here, with links to witnesses and the 68 briefs received.

 

Trends in international climate legislation since the Paris Agreement, built on a new public database

A new database , launched in May,  compiles national climate change legislation for 164 countries in the world, as well as a integrated climate  litigation database for 25 countries, including Canada.  U.S. litigation is available in a separate database hosted by  the Sabin Center for Climate Change Law at Columbia University .  The entire project is the work of  the Grantham Institute at the London School of Economics and the Sabin Center.

The database was the foundation of a new report, Global Trends in Climate Change Legislation and Litigation 2017 , the sixth in a series that began in 2010.  The report  highlights the global stock of climate laws, the pace of law-making, the focus of legislation, and climate legislation in least developed countries . The second part of the report, for the first time ever, examines trends in litigation , describing the number of climate litigation cases in 25 jurisdictions, the objectives of the cases, who the plaintiffs and defendants were , and the outcomes of litigation so far.   A press release states: “These developments in climate legislation and policies since Paris should be taken in context. The 14 new laws and 33 policies add to a stock of more than 1,200 climate change or climate change-relevant laws worldwide: a twentyfold increase in the number of climate laws and policies over 20 years when compared with 1997 when there were just 60 such laws in place. … Most countries now have the legal basis on which further action can build.”    The summary of the report  by The Guardian highlights this optimistic note.

The report is the work of the Grantham Research Institute on Climate Change and the Environment, and the Sabin Center on Climate Change Law at the Columbia Law School, with the support of the  Inter-Parliamentary Union  and the British Academy.  It was  launched at the UNFCCC meetings in Bonn on May 9.

The database  is available to the public, and “users are welcome to download, save, or distribute the results electronically or in any other format, without written permission of the authors.” Acknowledging that the database is not yet comprehensive, contributions are also invited: “Please send your comments (attaching supporting documents if possible) to: gri.cgl@lse.ac.uk.”

International Criminal Court expands its priorities to include cases of environmental destruction

The International Criminal Court in The Hague, normally associated with war crimes of violence, on September 15  issued a new Policy Paper  which expands the terms of its case selection and prioritization  to include cases relating to “the destruction of the environment and the illegal exploitation of natural resources or the illegal dispossession of land.”  The Guardian summarized developments on September 15:  “ ICC widens remit to include environmental destruction cases” in The Guardian (Sept. 15) , and Global Witness issued a press release: “Company executives could now be tried for land grabs and environmental destruction”. The policy change comes as the  Prosecutor of the ICC considers whether to investigate a 2014 case filing that catalogues mass human rights abuses linked to systematic land seizures in Cambodia.  Global Witness, an advocacy group, published On Dangerous Ground in  June 2016,  documenting the extent of the problem:   “More than three people were killed a week in 2015 defending their land, forests and rivers against destructive industries. … we documented 185 killings across 16 countries – by far the highest annual death toll on record and more than double the number of journalists killed in the same period.”

berta-caceres-770x4702015 was also the year of the murder of Berta Cáceres,  the 2015 Goldman Environmental Prize-winner for her decade-long opposition to the Agua Zarca hydroelectric dam on her community’s land in Honduras.

Manitoba introduces Environmental Rights Act with Whistleblower rights

On March 2, 2016,  the Government of Manitoba introduced Bill 20, the Environmental Rights Act  , summarized at the Environmental Law Centre ( Alberta) blog .  The Act incorporates fundamental environmental law principles:  precautionary principle; polluter pays principle; principle of sustainable development; principle of intergenerational equity; and principle of environmental justice.  The Bill also includes  Employee Protection from Reprisals, which states that  “An employee who uses a measure set out in the Bill to protect the environment is protected from any reprisal from their employer. ”

Update:  The EcoJustice  blog, A Tale of Two Provinces highlights the many strengths of the Manitoba legislation, and compares the reforms with  Ontario’s  Environmental Bill of Rights.  However, with the election call in Manitoba, Bill 20 died on the Order Paper.  The Manitoba election will take place on April 19 – see CBC coverage here.

Has a “Climate Insurgency” Begun?

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 State of Climate Change Litigation: Can Canada and the U.S. follow Urgenda?

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.

Following in Urgenda’s Footsteps – another Landmark climate change decision by Pakistani Court

FOLLOWING IN URGENDA’S FOOTSTEPS – ANOTHER LANDMARK CLIMATE CHANGE DECISION BY PAKISTANI COURT
According to the Climate Law Blog of the Columbia Law School, “Leghari v. Federation of Pakistan now joins the Urgenda decision in the Netherlands as an important judicial decision directing a national government to take action on climate change based on fundamental legal principles”. When a farmer in Pakistan sued his government for failing to carry out the country’s National Climate Policy and Framework, the High Court of Lahore ruled in September that “Climate Change is a defining challenge of our time...On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable and weak segments of the society who are unable to approach this Court”. Citing the life-threatening dangers of drought and flooding in the country, the judge directed several government ministries to ensure the implementation of the Framework, with a deadline of December 31, 2015 for action plans. The court also created a Climate Change Commission with representatives from government, NGOs, and technical experts. An article in the Toronto Star (Oct. 3) quotes Canadian legal experts on the decision. See the text of the decision at the Environmental Law Alliance Worldwide website.

Chronicling the Destruction of Canadian Environmental Laws

Canada’s Track Record on Environmental Laws 2011 – 2015 was released by West Coast Environmental Law on October 14. On the same day, Centre Québécois du droit de l’environnement released the french language version, Bilan des changements apportés aux lois environnementales fédérales. The report catalogues “the repeal or amendment of most of Canada’s foundational environmental laws since 2011”, beginning with Bills C-38 and C-45 in 2012. It notes that socio-economic considerations can now be more easily ignored or excluded under the new Canadian Environmental Assessment Act, damaging Canadian livelihoods. A summary at Desmog Blog and the website Environmental Laws Matter complement the report.

Dutch Government Announces it will appeal the landmark Urgenda Climate Change Decision

As reported in the June WCR  , the courts of the Netherlands ruled that the government  has a legal duty of care to its citizens to improve the environment, and ordered the government to cut the country’s greenhouse gas emissions by at least 25% by 2020. However, on September 1, the Dutch government announced it would appeal the decision.  Environmentalists around the world have been inspired by the implications for their own legal systems: see “Around the world in five climate lawsuits”  . A sampling of thought from Canada: Dutch climate court win – What does it mean for Canada? (June 26) at and Dutch Judicial Lessons for Canada (West Coast Environmental Law ); What the Dutch Climate Court win means for Canada   (Ecojustice); Exciting developments in Climate Change Law (Alberta Environmental Law Centre); “Are countries legally required to protect their citizens from climate change?”  (Corporate Knights , July 28). And most recently, the reports sparked by a public lecture in Toronto by Roger Cox, Urgenda lawyer: “Dutch climate lawsuit could work in Canada: lawyer”  in The Tyee (Sept. 15); and “Canadian Courts could face Climate Change cases in wake of Dutch ruling”  Globe and Mail (Sept. 14).

From Australia: Could Australians sue for climate action ?.  For a U.S. viewpoint, see The Enormous Significance For Climate Law and Ethics Of a Dutch Court’s Order Requiring the Netherlands To Reduce Its GHG Emissions by 25% by 2020  at the Ethics and Climate website. From a legal viewpoint, The Urgenda decision: Balanced constitutionalism in the face of climate change? (Oxford University Press).

Watch the Urgenda Foundation website for news of the appeal by the Dutch government.