U.S. fishers’ union sues the Oil Majors for damages to the oceans

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.

Historic court decision in Mathur v. Ontario government – Youth Charter challenge for stronger GHG emissions reductions can proceed

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.

Tidal wave of climate litigation: cases and trends examined in new report

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.

Dutch government announces measures to comply with Urgenda Supreme Court decision; Ontario government seeks to dismiss youth-led climate case

The Urgenda Climate Case against the Dutch Government was the first in the world to establish that a government has a legal duty to its citizens to prevent dangerous climate change.  The case began in 2013, with a District Court ruling in 2015 that the government must cut its greenhouse gas emissions by at least 25% by the end of 2020.  Following appeals by the government, in a December 2019 decision hailed as a landmark, the Dutch Supreme Court ordered the government to reduce emissions by 15 megatonnes in 2020. A timeline with links to all the decisions in the case is maintained by the Urgenda Foundation here .

Now finally, in April 2020, the Dutch government announced how it will comply, accepting 30 of the measures proposed  in Urgenda’s “54 Climate Solutions Plan”. Most importantly, the government ordered a 75% reduction in capacity at the country’s three coal-fired power stations; the full list of actions is summarized in “Climate action under duress: how Dutch were forced into emissions cuts” (The Guardian, May 4) , which also describes the long and contested route to this precedent-setting  achievement.

The U.N. High Commissioner for Human Rights noted in a press release after the Supreme Court decision in December 2019 :

“The recognition by the highest Dutch court that the Netherlands’ human rights obligations provide a legal basis to compel stronger and more rapid action by the Government is vitally important. This landmark ruling provides a clear path forward for concerned individuals in Europe – and around the world – to undertake climate litigation in order to protect human rights, and I pay tribute to the civil society groups which initiated this action. …. more ambitious climate action, in all parts of the world, is a human rights obligation rather than simply a policy choice.”

Ontario’s Youth-led climate case

The importance of the Urgenda decision may offer encouragement for the citizens around the world who are seeking to force governments to act on climate change.  In Ontario on April 15, Ontario’s Ministry of the Attorney General filed a motion asking the courts to dismiss a youth-led lawsuit, as described in  “Ford government files motion to strike down youth-led climate lawsuit” (April 16) . Seven young people are being represented in the case, Mathur et. al. v. Her Majesty in Right of Ontario .  According to the Case Backgrounder by Ecojustice, one of the representatives:  “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. “

Philippines Human Rights Commission delivers landmark decision, holding the Carbon Majors accountable for climate damages – Updated

The Human Rights Commission of the Philippines has concluded its three-year investigation of a complaint led by Greenpeace South-East Asia , and has found that the collective contribution to global heating by 47 coal, cement, and oil and gas companies has violated Filipinos’ basic human rights to life, water, food, sanitation, adequate housing and self-determination. Although the full decision is not yet available – but promised by the end of 2019 – the announcement made by one of the Commissioners at the COP25 meetings  stated that it would be up to individual countries to pass strong legislation and establish legal liability in their own courts, but that “there was clear scope under existing civil law in the Philippines to take action.”

The  Director of Greenpeace Philippines is quoted in the Greenpeace press release:

“The findings are a landmark victory for communities around the world who are at the frontlines of the climate emergency. This is the first ever finding of corporate responsibility for human rights harms resulting from the climate crisis. The outcome goes beyond the Philippines and can reach every single human being alive or yet to be born. However, this is only the beginning. We believe the findings provide very strong basis not just for future legal actions against big polluters, but also for citizens and communities to confront inaction by companies and governments in the streets and in the hallways of power.”

Greenpeace maintains an archive of documents related to this long-running investigation, including corporate responses and expert opinions.  Climate Liability News has published a number of articles, including “Carbon Majors Can Be Held Liable for Human Rights Violations, Philippines Commission Rules” and  “Philippines Climate Case Could Find Fossil Fuel Companies Violate Human Rights” ( 2017), which  provides more background to the case.

Update:  On December 18, The Tyee published “Oilsands Firms ‘Morally Responsible’ for Deaths and Destruction from Climate Disasters”, an interview by Geoff Demicki with Greenpeace’s Naderev Yeb Saño , which “explains what a Philippines human rights investigation means for the fossil fuel industry in Canada.”

Rights-in-a-Changing-ClimateRelated: An authoritative chronicling of  the human rights dimension in UNFCCC decisions and the Paris Agreement appears in  Rights in a Changing Climate by the Centre for International Environmental Law , published on December 5. It includes examples of Just Transition and decent work. The CIEL also operates a Working Group on Climate Rights, with a dedicated website here.

Updates on climate litigation:

“Fossil Fuels on Trial: Where the Major Climate Change Lawsuits Stand Today”  was published by Inside Climate News on November 29, providing a good sum-up of the year, but too early to reflect the landmark Philippines decision, nor the December 10 decision in the suit by the New York Attorney General against  Exxon.  The surprising victory for Exxon is described in  “Judge Clears Exxon in Investor Fraud Case Over Climate Risk Disclosure”  in Inside Climate News, as well as in a New York Times article.

Ontario updates: Advisory Panel on Climate Change appointed; Auditor General pans climate policies; Ontario youth launch new lawsuit

Post updated November 6:

In a November 28 press release,  Ontario’s  Minister of the Environment, Conservation and Parks announced the appointment of an Ontario Advisory Panel on Climate Change . The press release quotes the new Chair, Paul Kovacs who states: “The knowledge exists to prevent losses from flooding, wildfire and other climate extremes…. “Members of the advisory panel on climate change look forward to working with the Government of Ontario to champion climate resilience. Working together, we can break the alarming trend of rising severe weather damage to homes, businesses and public infrastructure. Action on climate resilience is a critical element of a comprehensive strategy on climate change.”

Members of the Advisory Panel come from a variety of sectors including non-profits, agriculture, insurance, and reflect the Panel’s focus on adaptation and conservation concerns. Neither green advocacy groups nor workers are represented. The brief bios of panelists are here :  Chair Paul Kovacs is founder and Executive Director of the  Institute for Catastrophic Loss Reduction at Western University; Vice-Chair Lynette Mader is the Manager of Provincial Operations for Ontario for Ducks Unlimited Canada and an expert on species-at-risk.  The other eight Panel members include Blair Feltmate , head of the Intact Centre on Climate Adaptation at the University of Waterloo and Chair of the Government of Canada Expert Panel on Climate Adaptation and Resilience Results.

ontario auditor general 2019The Advisory Panel was announced on the one-year anniversary of the Made-in-Ontario Environment Plan.   On December 4,  that policy initiative was reviewed when the provincial Auditor General tabled her annual report in the Legislature, including  Volume 2:  Reports on the Environment . In 183 pages and three chapters, the report provides an overview of  1. environmental issues in Ontario; 2. Operation of the Environmental Bill of Rights, and 3. Climate Change: Ontario’s plan to reduce Greenhouse Gas Emissions. The report details the government’s performance and finds that it has double-counted emissions reductions in some cases, over-estimated potential impacts of its own policies,  and is nowhere near able to meet its own 2030 emissions reductions targets.   The National Observer summarizes the report in “Ontario Auditor General slams Doug Ford’s climate policies”  and an analysis at the  TVO website tells a similar story in  “Ontario’s Auditor General gives the Tories’ climate plan a failing grade”.  This latest report follows on the previous  highly-critical report of the outgoing Environmental Commissioner,  A Healthy, Happy, Prosperous Ontario: Why we need more energy conservation  (March 2019), and  the Failure to Launch   report in October 2019 by Environmental Defence.

Youth launch lawsuit against Ontario government

All of these negative findings won’t help the government as they prepare to defend themselves against a new  climate change lawsuit by Ontario youth  who claim that the  Ford government’s softening of emissions reductions targets “will lead to widespread illness and death,” and thus has violated their charter rights under Section 7 of the Canadian Charter of Rights and Freedoms.  Seven  applicants from communities across Ontario, ranging in age from 12 to 24, are represented by lawyers from Ecojustice and Stockwoods LLP .  Details are in the Ecojustice  Case Backgrounderan overview of the action appears in the National Observer in  “These Ontario kids are taking climate protest from streets to courthouse” (Nov. 26).

mathur v province of ontario

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.

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.

Business responsibilities for climate change: U.S. Roundtable nods, U.N. sets a high bar

The U.S. Business Roundtable generated headlines and surprised reaction with the August 19th release of a new Statement of Purpose,  signed by 181 CEO’s of high-profile companies including Amazon, Walmart, Bank of America, Lockheed Martin, Morgan Stanley, UPS, and others. That statement redefines their shared, overarching corporate goal from “delivering value for shareholders” to  promoting “An Economy That Serves All Americans” – including by: “supporting the communities in which we work. We respect the people in our communities and protect the environment by embracing sustainable practices across our businesses.” …“Investing in our employees. This starts with compensating them fairly and providing important benefits. It also includes supporting them through training and education that help develop new skills for a rapidly changing world. We foster diversity and inclusion, dignity and respect.”

The full Business Roundtable Statement on the Purpose of a Corporation, with signatories, is here ;  case studies of member corporations’ social responsibility initiatives are outlined in Building Communities, Meeting Challenges .

A higher bar for business

In contrast to the Business Roundtable statement, scant attention was paid to an international call for human rights and climate justice, released in July. The Safe Climate Report  provides a guide to the obligations of States and the responsibilities of businesses under international agreements and law, regarding the rights to life, health, food, water and sanitation, rights of the child, right to a healthy environment, and rights of vulnerable populations.

The Safe Climate Report, as well as the June 2019 U.N. Report  on extreme poverty and climate change by Philip Alston, are the subject of a September 4 article in The Conversation Canadian edition, “Climate change, poverty and human rights: an emergency without precedent” . The authors state that “The Alston report suggests that the only way to address the human rights dimensions of climate crisis is for states to effectively regulate businesses and for those harmed by climate change to successfully sue responsible companies in court. ….  “the Safe Climate report goes further…”

Specifically, the Safe Climate Report states:

“Businesses must adopt human rights policies, conduct human rights due diligence, remedy human rights violations for which they are directly responsible, and work to influence other actors to respect human rights where relationships of leverage exist. As a first step, corporations should comply with the Guiding Principles on Business and Human Rights as they pertain to human rights and climate change…. The five main responsibilities of businesses specifically related to climate change are to reduce greenhouse gas emissions from their own activities and their subsidiaries; reduce greenhouse gas emissions from their products and services; minimize greenhouse gas emissions from their suppliers; publicly disclose their emissions, climate vulnerability and the risk of stranded assets; and ensure that people affected by business-related human rights violations have access to effective remedies.90 In addition, businesses should support, rather than oppose, public policies intended to effectively address climate change.”  (page 19/20).

Legal obligations of States:

The discussion in this report is also highly relevant to any litigation against states or companies regarding climate change, as well as for the rights of Indigenous peoples and children.  Boyd concludes:

“A failure to fulfill international climate change commitments is a prima facie violation of the State’s obligations to protect the human rights of its citizens. As global average temperatures rise, even more people’s rights will be violated, and the spectre of catastrophic runaway climate chaos increases. There is an immense gap between what is needed to seriously tackle the global climate emergency and what is being done.

A dramatic change of direction is needed. To comply with their human rights obligations, developed States and other large emitters must reduce their emissions at a rate consistent with their international commitments. To meet the Paris target of limiting warming to 1.5°C, States must submit ambitious nationally determined contributions by 2020 that will put the world on track to reducing greenhouse gas emissions by at least 45 per cent by 2030 (as calculated by the Intergovernmental Panel on Climate Change). All States should prepare rights-based deep decarbonization plans intended to achieve net zero carbon emissions by 2050, in accordance with article 4, paragraph 19, of the Paris Agreement. Four main categories of actions must be taken: addressing society’s addiction to fossil fuels; accelerating other mitigation actions; protecting vulnerable people from climate impacts; and providing unprecedented levels of financial support to least developed countries and small island developing States.”

The Safe Climate Report  (formally titled The Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment)  was submitted to the U.N. General Assembly,  written by Canadian human rights scholar and U.N. Special Rapporteur David R. Boyd, whose 2012 book, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment,  stands as a landmark study in environmental law.  The Special Rapporteur’s Report was informed by a consultation period in 2019 in which States and organizations were invited to participate – the few which did are posted here . (Neither  Canada nor the U.S. were among the countries which submitted).  Two noteworthy organizational submissions available are from Canada’s Ecojustice, and Our Children’s Trust (U.S.)  on the issue of intergenerational responsibility and youth. A separate report by Special Rapporteur John Knox discussed The Children’s Rights and the Environment in 2018, and it may be significant the  concluding sentence of the Safe Climate Report uses Greta Thunberg’s famous words,  “I want you to act as if our house is on fire. Because it is.”

Youth continue their slow battle through the courts for a livable climate: Updates for Environnement Jeunesse and Juliana

On June 6, lawyers presented an application to the Superior Court of Quebec on behalf of  ENvironnement JEUnesse . The application seeks authorization to bring a class action against the Canadian government on behalf of Quebeckers aged 35 and under, on the grounds that the government is infringing on their rights under the Canadian Charter of Rights and Freedoms and the Quebec Charter of Rights and Freedoms  by inadequate action to prevent climate change .  ENvironnement JEUnesse is asking the Court to order the government to implement a greenhouse gas reduction target and the measures necessary to respect the group members’ fundamental rights, and to pay an amount equivalent to $100 per member of the class action. The application suggests that the money, an estimated $340 million, could be invested measures to address the climate crisis.  The Court is now considering the application, with no date given for an expected decision.

The path to climate justice is intergenerational”  is an Opinion piece co-authored by a member of ENvironnement JEUnesse, appearing in the Montreal Gazette. It puts the ENvironnement JEUnesse case in the context of the worldwide Fridays for Future movement, and the Intergenerational Climate Coalition in Canada.  The ENvironnement JEUnesse website  provides French and English documentation and a timeline, as well as a summary of related cases, such as the Urgenda case of the Netherlands and the Juliana case in the U.S. . The best summary appears in the National Observer.  A Canadian Press article,  “Young Quebecers present arguments seeking class action against Ottawa”  appeared in the Montreal  Gazette on June 6 and incorrectly states that this is the first such case in the world by young people – an error which coincides with the latest court appearance on June 4  by the most famous young people’s suit, the  Juliana case.

Juliana vs. United States Government:  In the case  Juliana vs. United States, lawyers for children and young adults in the U.S. rely on the public trust doctrine,  accusing the federal government of violating their constitutional rights by failing to take action on climate change and continuing to promote and subsidize fossil fuels. The case originated in 2015 against the Obama government, and continues under the more hostile Trump administration, which argues that court doesn’t have the authority to order the political branches of government to act. Juliana has been called “the trial of the century” and is expected to be precedent-setting – accordingly, it is moving glacially and judges are being cautious, with no date set for a decision.  On June 4, one of the three judges, Judge Andrew Hurwitz stated, “You present compelling evidence that we have a real problem. You present compelling evidence that we have inaction by the other two branches of government. It may even rise to the level of criminal neglect. But the tough question for me is do we get to act because of that.”

Reports of the June 4 appearance are in the New York Times in “Judges give both sides a grilling in Youth Climate Case Against the Government” (June 4); “Ninth Circuit judges seem skeptical of role in kids climate  suit vs U.S. government in Climate Liability Newsand “Kids Face Rising Health Risks from Climate Change, Doctors Warn as Juliana Case Returns to Court” in Inside Climate News (June 4) . An historical summary appears in  “Question of the century: do we have a right to a livable climate?” in Resilience.

The case is being argued by Our Children’s Trust , which has compiled news and detailed documentation over the four years spent so far.

Generational justice and climate change: we can all strike for our future

The constitutional challenge by the government of  Saskatchewan to the Canadian government’s Greenhouse Gas Pollution Pricing Act of 2018  is underway – hearings were held in February and a decision is pending, with a similar challenge by Ontario to be heard in April. The main purpose of the court challenges is to nullify the federal government’s national carbon tax program , the signature issue of the Pan-Canadian Framework on Clean Growth and Climate Change.  But the case has also given youth activists an opportunity to address the intergenerational justice of Canada’s climate change policies, as described in “Canada obliged to protect future generations from climate change, test case on carbon tax hears”   (Feb. 20)  in The Narwhal.

The preamble of the Greenhouse Gas Pollution Pricing Act of 2018  states: “…Parliament recognizes it is the responsibility of the present generation to minimize impacts of climate change on future generations.”   This gave the Intergenerational Climate Coalition, led by  Generation Squeeze ,  a platform, as recognized intervenors, to argue that: “Failure to price pollution discriminates against younger Canadians, because it puts in jeopardy our reasonable aspiration to thrive in 2030 and beyond” and “the health threats to children and future generations are vastly disproportionate to their contribution to greenhouse gas emissions”. A press release in December 2018 describes the coalition and summarizes their arguments – mostly based on health consequences of climate change.

This issue of intergenerational  justice was also addressed by Hadrian Mertins-Kirkwood in “The all too ugly truth: Climate change is generational genocide” , published  in Behind the Numbers in February.  Echoing the strong and direct tone we have come to expect from Greta Thunberg,  Mertins-Kirkwood states: “For the generations poised to inherit our warming world, the complacency and greed of their predecessors is no longer being tolerated. From Autumn Peltier’s presentation to the United Nations to the climate strikes organized by school children across Europe to the Quebec youth suing the government for failing to protect the environment, young people are refusing to sit by while this existential crisis deepens.”  He continues: “The perpetrators of the climate change genocide include the fossil fuel industry and climate-denying politicians, of course, but also the silent majority of fossil fuel consumers who actively ignore the mounting scientific evidence or otherwise take no responsibility for the path we are on. It is this generation’s campaign of destruction that is being inflicted upon all other and future generations.”

Youth are asking for help:  The main point of Mertins-Kirkwood’s article is to urge us all to act:  First, by recognizing and acknowledging how we have contributed to the problem; Second, by making climate change “a central concern for everyone in your life” ; and third, by supporting  those fighting for a better future, through donations, but also by amplifying youth voices “online and beyond”.  Greta Thunberg has also stated:  “If you think that we should be in school instead, then we suggest that you take our place in the streets, striking from your work. Or, better yet, join us, so we can speed up the process.”

How to respond? “Intergenerational” organizations exist to support the actions of youth activists:  for example, in Canada, Canadian Parents for Climate Action, and  For our Grandchildren Canada ; in Australia, Australian Parents for Climate Action and  1 Million Women .   Fridays for Future Canada   is coordinating the school strikes, but there are many more  youth-led activist groups, many of whom are asking for support and donations.   Some Canadian examples:  Canadian Youth Climate Coalition ; ENvironment JEUnesse  (Quebec group for under-35’s suing the government) ; PowerShift Young and Rising  ; Youth Climate Lab ; The 3% Project .

Youth in at least 22 communities in Canada are participating in the Global Fridays for the Future climate Strike on March 15.  As George Monbiot wrote in Resilience,  “Young climate strikes can win their fight. We must all help”.

fridays for future strikes

An excellent example:  At their most recent climate strike, elementary school students in Sudbury were presented with a letter  of support from the faculty members of Laurentian University.

Climate litigation in Canada – first youth, now Victoria B.C. may take to the courts

Two new articles describe the first examples of climate change litigation in Canada.  In “Climate change litigation arrives in Canada”, lawyers from Osler’s, a Toronto-based law firm,  summarize two example of climate change litigation to arise in Canada:  the claim by Quebec youth against the government of Canada, and the January 16 decision by the council of Victoria, B.C. to endorse a class action lawsuit against fossil fuel companies.  The second article appeared in Climate Liability News , and provides more detail about the municipal movement for climate accountability.

environment jeunesseAs the WCR blog reported when the case was launched in November 2018, the first Canadian lawsuit was filed by  ENVironnement JEUnesse (ENJEU)  in the Quebec Superior Court  on behalf of  people  under the age of 35 and resident in Quebec. They are claiming that the federal government has infringed on the rights protected by the Canadian Charter of Rights and Freedoms and the Québec Charter of Rights and Freedoms, by failing to take adequate action to prevent climate change. The  ENJEU website places their action in the context of the global litigation movement begun by the Urgenda case in the Netherlands, and the Juliana case in the U.S., and like them, faces a long road of legal procedures.

victoria harbourVictoria endorses a class action lawsuit for climate change damages: The more recent example of Canadian climate litigation comes from Victoria, the capital city of British Columbia, which on January 17 endorsed a class action lawsuit against oil and gas producers for climate-related harms. This is described briefly in the Osler article (Feb. 5),  in  “Next Climate Liability Suits vs. Big Oil Could Come from Western Canada”  in Climate Liability News on January 22, and in greater detail in a Globe and Mail article (Jan. 17).  Also in January, Vancouver city council voted to declare a climate emergency , and according to the Globe and Mail article, is considering  whether to join with Victoria in the class action lawsuit.  Also in January, the city of  Halifax in Nova Scotia became the third major city to declare a climate emergency  – with city staff tasked with figuring out how the city can set up a climate change directorate, with a goal of net zero carbon before 2050.

As both the Osler and the Climate Liability articles state, Vancouver and Victoria have been encouraged by the Climate Law in Our Hands campaign organized by West Coast Environmental Law – a campaign which began in 2017,  and has enlisted 16 municipalities to send “Climate Accountability Letters” to the world’s largest fossil fuel companies, asking that these companies pay a fair share of local costs related to climate change adaptation.  In September 2018, the Association of Vancouver Island and Coastal Communities  (of which Victoria is a member) sent a climate accountability letter on behalf of its 53 local government members.

Perhaps other Canadian municipalities should consider such actions.  “Evaluating the quality of municipal climate change plans in Canada”, first published online in November 2018  in Climatic Change,  catalogues and evaluates the strengths and weaknesses of climate change plans in eight dimensions, in sixty-three Canadian municipalities.  The conclusions: Canadian municipal climate change plans currently prioritize mitigation over adaptation; implementation, monitoring, and evaluation are relatively weak aspects ; and municipalities have given insufficient consideration to the element of stakeholder engagement in the climate change plan-making process.  Highest ranked cities were in Ontario:  Kingston, followed by the Waterloo Region, and Hamilton. New Westminster, British Columbia was identified as most needing improvement.

 

Climate Justice through Litigation: What will be the impact of the Paris Agreement?

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  .