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  .