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.”    

Lawyers fighting for climate change through litigation and legislative reform

Global Trends in Climate Litigation:  2020 Snapshot, published on July 3, is the latest annual review by researchers at the Grantham Institute in the U.K. .It covers the period of May 2019 to May 2020, reporting on the statistics (e.g  26 new climate change cases brought outside the U.S. in 2019), and analyzing trends in the strategies and types of arguments used in climate litigation. The report particularly focuses on the role of human rights arguments (as pioneered in the Urgenda case, but also used in many of the youth-led court challenges); how litigation has been blended with direct protesting in some countries; and the variety of strategies being used to bring lawsuits against corporate emitters of greenhouse gases, the ‘Carbon Majors”.  Although the report concludes that litigation has not resulted in widespread climate policy change so far, it discusses key developments such as the final resolution of the Urgenda case in December 2019, which demonstrates the enormous potential of litigation: “Depending on the lawsuit and strategies employed, litigation might impact on government policy, company profits, share prices and broader public framings around climate change. However, litigation as a governance strategy is costly and risky, and it takes place alongside other political and social mobilisation efforts.”  A summary of the Grantham study appeared in The Energy Mix (August 24), headlined: “Litigation drives global policy change on climate, study shows”. A related academic analysis is available as an NBER Working Paper:  Eskander, Fankhauser, and Setzer . “Global Lessons from Climate Change Legislation and Litigation”  a paper presented at the  2nd Annual NBER Environmental and Energy Policy and the Economy Conference, June 2020.

The Global Trends 2020 Snapshot report is based on two publicly available databases of case law and legal documents: Climate Change Laws of the World database maintained by the Grantham Institute in the U.K. (with 374 court cases in 36 countries, including 23 from Canada but excluding the U.S.; and the Climate Case Chart database maintained by the Sabin Center at Columbia University in the U.S. (featuring 1,213 U.S. climate lawsuits). The Sabin Center also maintains a smaller database of non-U.S. cases, which includes 24 Canadian cases. 

Advocating for Legislative Reform:

As noted in the Grantham 2020 Snapshot report, 80% of global climate litigation occurs in the United States. In addition to litigation, Canadian legal activists also focus on legislative reform: for example, West Coast Environmental Law, Ecojustice, Équiterre, working with Climate Action Network Canada, Environmental Defence and the Pembina Institute released their latest proposals for climate accountability, in the form of a June report, A New Canadian Climate Accountability Act: Building the legal foundation to achieve net-zero emissions by 2050. It proposes five “pillars” for a new statute that would include. long-term, ambitious GHG reduction targets for 2030 and 2050; 5-year carbon budgets; 5-year impact reports tabled before Parliament to assess the risks of current and predicted climate impacts; and an arm’s-length expert climate advisory committee to monitor and report on progress. The recently-formed Canadian Institute for Climate Choices supported this goal with its own report in June, Marking the Way: How Legislating Climate Milestones Clarifies Pathways to Long-Term Goal . The press release provides a summary of the report; it is accompanied by case studies of the existing climate accountability legislation in the provinces of British Columbia and Manitoba, as well as the U.K and New Zealand, considered model jurisdictions.

U.S. Lawyers offer Model Laws for Decarbonization:

In 2019 Legal Pathways to Deep Decarbonization in the United States was published by the Washington-based Environmental Law Institute, in which 59 legal experts offer over 1,000 recommendations for federal, state, local and private action to drastically reduce fossil fuel use and greenhouse gas emissions in the U.S. A  161-page Summary of Legal Pathways was published in an effort to take the message outside the “expert” community – besides succinct summaries of the recommended legal changes, it includes an index by actor – providing recommendations for action by “Companies, Associations, NGOs, and Other Private Entities”. Now, a new website seeks to enable more activism: the Legal Pathways to Deep Decarbonization website, hosted by the Sabin Center for Climate Change Law at Columbia University and the Commonwealth Law School of Widener University, with provides a compilation of actual laws, and model laws drafted and peer-reviewed pro bono by volunteer lawyers. All can be downloaded and customized for other jurisdictions. Some examples: regarding energy efficiency in buildings: the existing St. Louis’ Building Energy Performance Standard 2020. So far, model laws posted on the website deal chiefly with green transportation, for example:  Legislation Mandating Consideration of Greenhouse Gas Reduction as Part of Metropolitan Transportation Planning.  For more on this project, read “Lawyers wanted to help decarbonize the U.S. economy” in Resilience (August 27)   .

How human rights approaches can aid climate activism and litigation

Climate change, justice and human rights is a collection of ten essays, released by Amnesty International Netherlands in August 2020 (published in English). It is a thoughtful and critical discussion of the opportunities and problems of taking a human rights lens to climate change. “The language, policies and (campaigning) strategies around climate change and human rights are still in development, leading to new insights, (re) definitions, and new challenges for human rights and environmental activists.” The opening essay, “Amnesty’s approach to climate change and human rights” discusses whether Amnesty should become involved in climate change, and if so, how.  It concludes “Simply framing the crisis as a human rights crisis will by itself make only a modest difference. However, with determination, sound strategy and humility we can use our strengths to support and be guided by those who are at the front line of the climate crisis, and who have been leading the struggle for climate justice for a long time.” Specifically, when options for tactics were presented at a People’s Summit in 2019, participants voted for: Changing public opinion (25%); Civil disobedience (19%); Litigation (17%); Divestment (14%); Mass demonstrations (9%); Consumer boycotts (9%); or  something else (7%). Not all of these are tactics commonly used by Amnesty International, but the report discusses how they determine to go forward.

Besides the considerations of Amnesty’s future direction and tactics, the essays look at the concept of climate justice, and finally, at specific policies areas, in chapters such as “Climate change and the human rights responsibilities of business enterprises” by  Sara Seck, Associate Professor, Schulich School of Law, Dalhousie University; “The use of human rights arguments in climate change litigation and its limitations” by Annalisa Savaresi, one of two Executive Directors of Greenpeace Netherlands; “The climate crisis and new justice movements: supporting a new generation of climate activists” by Anna Schoemakers, Senior Lecturer in Environmental Law at Stirling University, UK; and “ Human rights and intergenerational climate justice “ by  Bridget Lewis, Senior Lecturer at the Queensland University of Technology in Brisbane, Australia.   

  

New podcast series celebrates women fighting climate change

MothersOfInvention_PressShot_11A new, optimistic initiative called Mothers of Invention  was launched in July, led by Mary Robinson, former Prime Minister of Ireland and a well-known climate justice campaigner. Maeve Higgins, an Irish-born comedian is her  “sidekick” in a series of podcasts designed to celebrate “ amazing women doing remarkable things in pursuit of climate justice.”  Through lighthearted, informal conversations, the podcasts educate and inspire with stories of local climate activists – initially focusing on women only, but eventually planned to include men as well.  The clear purpose is to motivate individuals with positive examples, rather than a climate change “doom and gloom” message.

Episode 1, All Rise ,  explores the issue of global climate litigation through interviews with Tessa Khan, Co-Founder of the Global Climate Litigation network ; Marjan Minnesma, Director of the Urgenda Foundation which launched the world’s first climate liability lawsuit in the Netherlands; and Kelsey Juliana, Victoria Barrett & Ridhima Pandey – young plaintiffs from the U.S. and India who are supported in  lawsuits against their own governments by the Our Children’s Foundation. Each episode consists of the podcast interviews and discussion, with links for more information, more involvement, and  a chance to donate.

The line up of future “Mothers”   includes activists from around the world who have focused on land protection, zero waste, fossil fuel divestment, energy poverty, plastic pollution, and environmental racism. The initiative is profiled in The Guardian in “Mary Robinson launches new feminist fight against climate change” (July 24).