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.
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.
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: email@example.com.”
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.”
2015 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.
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.