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)   .

Visions for green steel production in Canada and internationally

CSPA_2_29_compressedThe Canadian Steel Producers Association released a “Climate Call to Action” for their industry on March 4 , with a goal to achieve net zero CO2 emissions by 2050.  The press release calls that goal  “the central plank” of their vision.  More details are explained in a 19-page document, Canada’s Steel Industry: A Sustainable Choice , which states:

“Canada’s steel producers have the aspirational goal to achieve net-zero CO emissions by 2050. This means that we must significantly reduce net CO emissions including through removal or offsets. In order to achieve this aspirational goal, we need to work with stakeholders, including suppliers, customers, and government, to implement transformational changes and breakthrough technologies. This includes significant capital investments, public-private partnerships, and policies that support the industry during the transition.”

The Statement emphasizes technological breakthroughs and trade policy, and the words “workers”, “jobs” or “labour” do not appear anywhere. The most relevant section relates to operational efficiencies and manufacturing processes:

“We have also adopted process control technology and other innovative technologies, such as robotics, to improve our process reliability, production yields, and overall production efficiencies to reduce losses and the amount of energy used to produce each tonne of steel. However, there is limited room for further improvement based on existing technology. The adoption of new technologies to further advance and optimize steel manufacturing software control systems will continue to drive improvements in our sector.”

Internationally:

A useful and related report is  Low and zero emissions in the steel and cement industries: Barriers, technologies and policies ,  an Issue Paper prepared for the November 2019 OECD Green Growth and Sustainable Development Forum. The paper is meant for international audience, though its author, Chris Bataille, is a prominent researcher at Simon Fraser University as well as at the Institute for Sustainable Development and International Relations (IDDRI) .  He calls for an industry transition based on  “well-designed policy packages and careful consultation with all parties involved and affected.”  Specifically,  regarding Just Transition, he states (p. 36) :

“To support change, we will need to make many modifications to existing institutions, and create new ones… A key element that is often overlooked is a transition plan for the management and labouring workforce, whose full support is required. This involves retraining for those already in the workforce, and redefinition of the curriculum in technical schools where electricians, pipefitters, heavy duty machinery specialists, etc. are trained. Oversight bodies are also required for the national transition plans, which have timetables of expected physical transitions against which they can measure progress and recommend policy adjustments and wholesale changes … At present, the UK Climate Change Commission, which recommends five year carbon budgets and parliamentary advice as required, is the best practise example of a national oversite body. It has no statutory authority to change policy, as this is the prerogative of the British Parliament, but it can monitor progress and recommend changes.”

Notably, one of the “asks” of  the Canadian Steel Producers Association visioning document is the creation of “ a Canadian steel climate council with key government departments to monitor and report on the progress of the sector’s climate strategy, to share practices, to engage with other stakeholders, and to evolve the plan as new information and insights emerge”.  (“Stakeholders” don’t include workers.)

Worldsteel , the global industry association, released its own position paper in 2020:  Steel’s contribution to a low carbon future and climate resilient societies , which emphasizes most of the same  themes of technology,  circular economy, energy efficiency, and a “level playing field” globally.  Worldsteel also recently published the Sustainable Steel: Indicators 2019 and the steel supply chain .

steel-arising-cover-01_1-1And from the U.K., academics at the University of Cambridge released  Steel Arising: Opportunities for the UK in a transforming global steel industry  in April 2019. The report was commissioned by GREENSTEEL Council which  “promotes sustainable production methods and a revitalisation of engineering and the economy” in the UK.  Steel Arising calls for  greening by “moving away from primary production towards recycled steel made with sustainable power.”  The report states: “Not only will this create long-term green jobs, it will lead to world-leading exportable skills and technologies and allow us to transform the highly valuable scrap that we currently export at low value, but should be nurturing as a strategic asset. With today’s grid we can do this with less than half the emissions of making steel with iron ore and with more renewable power in future this could drop much further.”

Nova Scotia legislation targets “boldest” GHG emissions reduction targets in Canada

bay of fundy tidal turbine

Tidal turbine in the Bay of Fundy NS

Nova Scotia’s Premier Stephen McNeil issued an October 30th press release  to mark the end of the legislative session, stating: “We began the sitting by introducing a ban on single-use plastic bags at retail checkouts and calling for an emergency debate on climate change. We ended by bringing in the boldest greenhouse gas emission reduction target in the country and some of the strongest environmental legislation in North America.” The “boldest” GHG emissions reduction target referred to is stated in Bill 213, the Sustainable Development Goals Act  passed on Oct.30, calling for GHG emissions reduction of 53 per cent below 2005 levels by 2030.  The Act recognizes the urgency of a global climate emergency, and states that the goal of sustainable prosperity must include the elements of sustainable development, a circular economy, an inclusive economy, and “Netukulimk”, which is defined as a Mi’kmaq First Nation concept: “the use of the natural bounty provided by the Creator for the self-support and well-being of the individual and the community by achieving adequate standards of community nutrition and economic well-being without jeopardizing the integrity, diversity or productivity of the environment”.

 

A press release from the Ecology Action Centre of Halifax welcomes the new legislation;   a more detailed EAC Backgrounder   discusses the level of GHG emissions called for, and concludes: “….. A legislated target of 53% below 2005 levels by 2030, for Nova Scotia … sets us on track to overshoot 2 degree C of global warming and it is not based on our differentiated responsibility and capability. For this reason, the EAC continues to advocate for a legislated target of 50% below 1990 levels by 2030 (equivalent to 58% below 2005 levels by 2030).”

Other initiatives introduced in the Sustainable Development Goals Act  include:  an extensive public consultation process to update the province’s climate strategy, to be called Climate Change Plan for Clean Growth and to released by the end of 2020, and a Sustainable Communities Challenge Fund to help communities with mitigation and adaptation. Summaries of the legislation are provided by articles in the National Observer  and the CBC.  

B.C. climate change legislation improves transparency, breaks cycle of “setting targets then missing them”

imageA press release from the government of British Columbia announced “Climate action gets new teeth with accountability act”, describing Bill 38, The Climate Change Accountability Amendment Act  introduced in the provincial legislature by the Minister of Environment and Climate Change Strategy on October 30. The press release summarizes the main provisions, including:

  • Government will set an interim emissions target for GHG emissions by no later than Dec. 31, 2020, on the path to the legislated 2030 target – which remains unchanged at  40% in greenhouse gas reductions below 2007 levels.
  • No later than March 31, 2021, separate 2030 sectoral targets will also be established following engagement with stakeholders, Indigenous peoples and communities, to “ make sure carbon pollution is reduced effectively across B.C.’s economy, homes, workplaces and transportation choices”.
  • Every fifth year, the climate change accountability report will include an updated provincial climate risk assessment, which will build on B.C.’s Preliminary Strategic Risk Assessment, published in July 2019.
  • A new independent advisory committee will be established, consisting of no more than 20 members, of which at least half must be women. The new committee is to be modelled on the Climate Solutions and Clean Growth Advisory Council, now completed.

Initial response have been published by the Pembina Institute, which states: “We applaud the government for taking concrete steps to break the cycle of setting goals and missing them.” and  “The reforms put forward by the B.C. government should form a blueprint for transparency and accountability on climate action at the federal level. ”  Also, from the Business Coalition for a Clean Economy (an initiative of the Pembina Institute):  “As businesses committed to acting on climate change, we commend the government for its willingness to be accountable for its climate action promises.”

Less favourable reaction is reported by CTV News , which highlights reaction from the West Coast Environmental Law Association, (full statement here ) and also the Georgia Straight Alliance, whose spokesperson states:  “We are disappointed that B.C. did not choose to put a mechanism in place to reassess their climate targets in the light of the best available science, and will continue to advocate for them to do so.”

 

City of Toronto declares climate emergency

Toronto smallCanada’s largest city,  Toronto, has unanimously adopted a climate emergency resolution on September 20, joining hundreds of other municipalities across Canada.  The city’s TransformTO Climate Action Plan, passed in 2017, had a target of cutting greenhouse gas emissions to 80 per cent below 1990 city levels by 2050.  The emergency resolution passed in September speeds up that timetable, with a new commitment to net zero emissions before 2050. (As of July 2019, the city was ahead of schedule with a 44% reduction below 1990 levels). The action was precipitated by a Call to Action , which includes a call for a “Just Economic Transition” and for “Equity and Inclusion” is described in a press release from the Toronto Environmental Alliance: “Forty-seven organizations call on Toronto City Council to declare a climate emergency” (Sept. 20). The Call to Action statement is here , the list of signatories is here , and it includes Toronto and York Region Labour Council, Toronto Community Benefits Network, Good Jobs for All, and BlueGreen Alliance.  A spokesperson for the Toronto Environmental Alliance states:  “The good news is that just about everything that Toronto needs to do will improve our quality of life. For example, properly insulating our buildings will make them more energy efficient and safe from extreme weather, and create jobs for people in the skilled trades…. If developed in a thoughtful and well-coordinated way, green workforce strategies can be inclusive and reduce poverty.”

The mayor’s  voluntary Green Ways Initiative is described in “Mayor John Tory enlists major institutions in emissions plan as Toronto declares ‘climate emergency’” in the Toronto Star.  Developers, hospitals, and universities are being urged to cut their energy consumption and emissions – and one of those volunteer entities, the University of Toronto, announced its Low Carbon Action Plan  on September 27.  The University of Toronto maintains 266 buildings on three campuses, and more than half of those are over 80 years old.  Other participants in the Green Ways Initiative include include Oxford Properties, Ryerson University, Toronto District School Board, Toronto Catholic District School Board, Toronto Community Housing, and the University Health Network.

gardiner toronto_trafficThe major criticism of the climate emergency resolution is outlined in “Toronto just declared a climate emergency, so why is it still fixing up the Gardiner?” at the CBC (Oct. 4), referring to the major highway artery across Toronto’s downtown.  Journalist  John Lorinc also pursues this in his article in Spacing (Sept. 30), which contends that the Gardiner Expressway redevelopment project accounts for 5% of the city’s entire $40.7 billion ten-year capital budget, which is money which could be better used to fund transit, such as the Queen’s Quay East LRT, or to finance the retrofitting of the city’s portfolio of buildings, including community housing.  To these criticisms, the mayor is quoted in the Toronto Star and the CBC with this statement: “The amount we’re spending on rebuilding a small part of the Gardiner Expressway pales in comparison to what we’re investing in public transit to get people out of their cars entirely”.