Climate Change Litigation – 1 step forward, 2 steps back

29 Jan Climate Change Litigation – 1 step forward, 2 steps back

Climate Change Litigation – 1 step forward, 2 steps back

Climate litigation is still very new and Canada did not see much of it until 2018 when one of the first Canadian climate lawsuits was filed, the case of Environnement Jeunesse v Canada.[1] This suit was brought by the group ENvironnement JEUnesse (ENJEU) on behalf of people aged 35 years and younger living in the province of Quebec.[2] ENJEU’s statement of claim argued that the lack of climate action by the Government of Canada was a violation of the plaintiffs’ rights under the Canadian Charter of Rights and Freedoms (the “Charter”) and the Quebec Charter of Human Rights and Freedoms.

Check out our blog post by staff counsel Kyra Leuschen for a detailed overview of the case and the constitutional arguments raised by the plaintiffs. More recently, the Superior Court of Quebec dismissed the case, refusing to certify ENJEU’s class action[3] – a decision which was explained more in a post by summer law student Anita Nowinka. The case is now being appealed to the Appeal Court of Quebec.[4] Although the case was not dismissed on its merits, this decision is still a roadblock in its legal trajectory and if the class is not certified as a class, ENJEU will need to decide whether to continue the litigation with individual plaintiffs.

More recently, in November 2019, seven young people initiated climate litigation against the Government of Ontario.[5] This case, Mathur et al v Her Majesty in Right of Ontario, argues that the Cap and Trade Cancellation Act, passed in 2018 by the Government of Ontario, weakened greenhouse gas (GHG) reduction targets allowing more GHG emissions and contributing to dangerous climate change-related impacts such as heatwaves, floods, fires, and more.[6] The plaintiffs argue that this decision violates their Charter protected rights to life, liberty, and security of the person.[7] This is a similar argument to the one raised in the ENJEU case but this lawsuit is not proceeding by way of class action. It is still in the early stages and will be another one to keep an eye on!

Internationally there have been more examples of climate litigation and two international cases of note have had decisions rendered recently: Juliana v United States (US)[8] and The State of the Netherlands v Stichting Urgenda.[9] This post will provide a brief overview of these two cases, highlighting some of the pitfalls and successes of the broader climate litigation movement. Although these are not the only examples of this type of litigation,[10] they are some of the most famous and are likely to be important catalysts for future climate litigation.

Juliana v United States

The case of Juliana v US has been winding its way through the court system since 2015 and despite many attempts by the federal government to quash it, the plaintiffs have thus far been successful. For example, in the early days of this litigation, the United States government, along with interveners such as fossil fuel industry representatives, tried to get the case dismissed, to no avail.[11] Later, the Ninth Circuit Court dismissed the Trump administration’s petition for writ of mandamus,[12] motion for a protective order, and stay of discovery;[13] and the United States Supreme Court ruled in favour of the plaintiffs, denying the Trump administration’s application for a stay.[14] The most recent decision; however, was not in their favour and they will now have to head back to appeal.

In the most recent iteration of this saga, on January 17, 2020, the Ninth Circuit Court of Appeal found that the federal courts were not the proper avenue to provide the youth with a remedy for their climate change injuries.[15] Specifically, the Court found that an Article III court was unable to “order, design, supervise, or implement the plaintiffs’ requested remedial plan due to the complex policy decisions required.”[16] Instead, the majority found that the plaintiffs must look to Congress or the President to have their injuries redressed.[17] This decision was tempered by the Court’s recognition that, historically, both the executive and legislative branches of government have been deaf to this issue.[18]

Interestingly, the majority of the Court found that there is ample evidence that climate change is occurring and that the damages associated with this climate change are being amplified by the actions (and inaction) of the federal government.[19] In fact, the majority opinion of Judge Andrew Hurwitz sided with the plaintiffs in a number of important respects, including: “the evidence showed climate change was occurring at an increasingly rapid pace; copious expert evidence established that the unprecedented rise in atmospheric carbon dioxide levels stemmed from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked; the record conclusively established that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions; and the record established that the government’s contribution to climate change was not simply a result of inaction.”[20] It is interesting to see climate change referenced in such stark terms and to see the Court acknowledge the knowing inaction on the part of the American federal government.[21]

In contrast, the dissenting judge found that not only was the evidence compelling (often citing the majority’s opinion) but also that the Court could and should offer a remedy.[22] The dissent found that despite the court not being able to offer a remedy sufficient to halt all aspects of climate change it was still able to offer something,[23] stating: “a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief.”[24]

The State of the Netherlands v Stichting Urgenda (Urgenda)

This case began in 2015 on behalf of 886 Dutch citizens [25] and most recently, in a victory for the plaintiffs, the Supreme Court upheld a lower court decision ordering the Government of the Netherlands to cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels).[26] Similar to the Juliana case, this decision also included a finding that climate change was real and that we need to limit the warming of our planet to below 2 degrees Celsius or face innumerable catastrophes.[27]

The 25% reduction comes from a target set by the IPCC. This target is designed to help meet the United Nations Convention on Climate Change (UNFCC) goals and keep the global average temperature below 2 degrees Celsius.[28] The 25% number is specific for Annex I countries – a list devised by the IPCC as being comprised of developed countries, including the Netherlands.[29]

The ELC has been following this case throughout and you can read our initial thoughts in a blog post by staff counsel Brenda Heelan Powell after Urgenda’s first court victory.

The Court’s decision in Urgenda relied on the Netherlands’ obligations under the European Convention on Human Rights (“ECHR”).[30] Specifically, the Court cited Articles 1, 2, and 8 of the ECHR to determine that the Netherlands holds an individual responsibility to reduce their GHG emissions (according to the UNFCC goals) and cannot rely on the commonly raised argument that they are just one small nation facing a global emergency[31]– an argument that is also raised in the Canadian context.[32]

The decision is a rare example of a Court giving a national government such a clearly defined emissions reduction goal and could signal a major step for other European Union countries. In fact, the UN High Commissioner for Human Rights lauded the decision, arguing that: “[the decision] implies that other governments also have binding legal obligations, based on international human rights law, to undertake strong reductions in emissions of greenhouse gases.”[33] This perspective echoes some of even the earliest comments about this case such as a statement by Michael B. Gerrard of the Sabin Center for Climate Change Law at Colombia Law School.[34] In 2015, Gerrard argued that the Urgenda decision “will encourage lawyers in several other countries to see if they have opportunities in their domestic courts to pursue similar litigation.”[35]

From a Canadian perspective, this case is also interesting because the decision relied on human rights law, rather than a piece of specific European legislation. This could arguably be similar to a Canadian plaintiff relying on the Canadian Charter of Rights and Freedoms to litigate for stronger climate laws. (A strategy that is being used by both the two examples of Canadian climate litigation – Environnement Jeunesse v Canada and Mathur et al v Her Majesty in Right of Ontario)

Despite not being binding upon Canadian courts these cases are interesting to watch. The more climate law suits that proceed, and the more that receive successful rulings, the more climate litigation will become commonplace and legal arguments and strategies will be bolstered. Cases like Urgenda may can also be persuasive in our domestic courts, especially as international pressure to deal with the climate crisis mounts.

It is interesting to note that the cases outlined above are all examples of litigation against national governments. The other option available for future climate change litigation involves filing an action against a fossil fuel company. In fact, some examples of this type of litigation have already been filed in the United States, although none of the major cases have yet to be successful.[36] It is likely that we will see suits against both governments and industry going forward.

In the meantime, keep an eye on the ELC’s blog for future updates.

For further reading, the ELC has released a new resource – www.albertaenvirolaws.ca – designed for teachers and students which includes even more discussion about climate litigation around the world.

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[1] Environnement Jeunesse c Procurer General Du Canada, 2019 QCCS 2885.

[2] ENvironnement JEUnesse, “Youth vs Canada” online: https://enjeu.qc.ca/justice-eng/.

[3] A class action is when one or more members of a class of persons commences a proceeding in court on behalf of the members of the class. See: Class Proceedings Act, SA 2003, c C-16.5.

[4] Ibid.

[5] Ecojustice, “Mathur et al v Her Majesty in Right of Ontario” online: https://www.support.ecojustice.ca/page/52098/action/1.

[6] Ibid.

[7] Ibid.

[8] Juliana v United States, D.C. No. 6:15-cv-01517- AA (9^th Cir 2019) [Juliana v United States].

[9] The State of the Netherlands v Stichting Urgenda, 19/00135 (20 December 2019) online: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007 [The State of the Netherlands v Stichting Urgenda].

[10] See Demanda Generaciones Futuras v Minambiente is a 2015 case from Colombia. In this decision, the Supreme Court of Justice of Colombia found that the government of Colombia must abate climate change by stopping deforestation in the Amazon. They ruled in favour of 25 youth and found that the Amazon was an entity subject of rights, laying out specific government mandates to achieve net zero deforestation by 2020. Check out the Sabin Center for Climate Change Law at http://climatecasechart.com/non-us-case/future-generation-v-ministry-environment-others/ for more information on this case.

Another important case is Leghari v Federation of Pakistan, where, in 2015, the Lahore High Court found that climate change led to heavy floods and droughts in Pakistan, raising concerns regarding water and food security. The Court found in favour of a Pakistani farmer who argued that the national government had failed to carry out the 2012 National Climate Policy and Framework and, in their decision, the Court directed several ministries to ensure implementation of the Framework and created a Climate Change Commission with representations of key government ministries, NGOs, and technical experts. Check out the Sabin Center for Climate Change Law at http://climatecasechart.com/non-us-case/ashgar-leghari-v-federation-of-pakistan/ for more information on this case.

[11] Juliana et al v United States et al, 6:15-cv-01517-TC Opinion and Order (10 November 2016) online: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf.

[12] Our Children’s Trust, Press Release, “Ninth Circuit Rules in Favor of Youth Plaintiffs, Rejects Trump’s Attempt to Evade Constitutional Climate Trial” (7 March 2018) online: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5aa049d28165f5b0f580c322/1520454099423/2018.03.07+Press+Release+-+Ninth+Circuit+Decision+on+Trump+Writ+of+Mandamus.pdf.

[13] Juliana et al v United States et al, 6:15-cv-1517-TC Order (25 May 2018) online: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5b08a1f6758d461b37a9d6c8/1527292407158/2018.05.25.OrderDenyingpProtectiveOrder.Federal.pdf.

[14] Our Children’s Trust, Press Release, “U.S. Supreme Court Rules in Favor of Youth Plaintiffs, Allows Juliana v United States to Proceed to Trial” (30 July 2018) online: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5b5f750303ce644ee2813b89/1532982531627/2018.07.30+SCOTUS+decision+on+defendants+application+for+stay.pdf.

[15] Juliana v United States, supra note 8 at preamble.

[16] Ibid 7 at 5.

[17] Ibid at 31 – 32.

[18] Ibid at 31.

[19] Ibid at 15 & 20.

[20] Our Children’s Trust, Press Release, “Decision of Divided Ninth Circuit Court of Appeals Finds Primarily for Juliana Plaintiffs, but Holds Federal Judiciary Can Do Nothing to Stop the U.S. Government in Causing Climate Change and Harming Children” (17 January 2020) online: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5e22508873d1bc4c30fad90d/1579307146820/Juliana+Press+Release+1-17-20.pdf.

[21] Juliana v United States, supra note 8 at 11.

[22] Ibid at 44.

[23] Ibid at 33.

[24] Ibid at 33.

[25] Urgenda, “Landmark Decision By Dutch Supreme Court” online: https://www.urgenda.nl/en/themas/climate-case/.

[26] The State of the Netherlands v Stichting Urgenda, supra note 9.

[27] Ibid, s 4.3.

[28] United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107, art 1, 31 ILM 849 (entered into force 21 March 1994).

[29] The group of countries included in Annex I (as amended in 1998) to the United Nations Framework Convention on Climate Change (UNFCCC), including all the OECD countries in the year 1990 and countries with economies in transition. Under Articles 4.2 (a) and 4.2 (b) of the Convention, Annex I countries committed themselves specifically to the aim of returning individually or jointly to their 1990 levels of greenhouse gas emissions by the year 2000. By default, the other countries are referred to as Non-Annex I countries. For a list of Annex I countries, see http://unfccc.int.

[30] European Convention on Human Rights, 1 June 2010, CETS 194 online: https://www.echr.coe.int/Documents/Convention_ENG.pdf.

[31] The State of the Netherlands v Stichting Urgenda, supra note 9, s 5.7.1.

[32] Andrew Coyne, “Canada a small part of global emissions problem, but costs of inaction are not zero” (12 October 2016) National Post online: https://nationalpost.com/opinion/andrew-coyne-canada-a-small-part-of-global-emissions-problem-but-costs-of-inaction-are-not-zero.

[33] United Nations Human Rights Office of the High Comissioner, News Release, “Bachelet welcomes top court’s landmark decision to protect human rights from climate change” (20 December 2019) online: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25450&LangID=E.

[34] Check out the Sabin Center for Climate Change Law for more climate litigation information.

[35] John Schwartz, “Rulings Says Netherlands Must Reduce Greenhouse Gas Emissions” (24 June 2015) The New York Times online: https://www.nytimes.com/2015/06/25/science/ruling-says-netherlands-must-reduce-greenhouse-gas-emissions.html?auth=login-google.

[36] Some examples: City of New York v BP p.l.c. online: http://climatecasechart.com/case/city-new-york-v-bp-plc/; Rhode Island v Chevron Corp online: http://climatecasechart.com/case/rhode-island-v-chevron-corp/; City of Oakland v BP p.l.c online: http://climatecasechart.com/case/people-state-california-v-bp-plc-oakland/.