Climate Litigation in Canada and beyond – Where are we in 2020?

09 Nov Climate Litigation in Canada and beyond – Where are we in 2020?

Climate Litigation in Canada and beyond –
Where are we in 2020?

This is the fifth post in our recent series on climate change litigation in Canada and around the world.

In this post, we look at some of the climate lawsuits moving through the Courts in 2020. While climate litigation may be a relatively new type of legal matter, it has become increasingly common around the world.  For an in depth list of climate change related cases, check out the ‘Climate Change Litigation Database’ created by Columbia University at www.climatecasechart.com. This database provides a list of both U.S. and non-U.S. cases and is a great summary. While this post will not provide an exhaustive summary of all climate litigation that went on in 2020, it will provide a glimpse at some of the interesting cases that are moving ahead worldwide.

North America

We begin in Canada where the Statement of Claim for one of the most recent climate cases has been struck down by the federal court. La Rose v Canada was filed on behalf of a group of young people (the “plaintiffs”) who claimed the federal government had infringed their rights under sections 7 and 15 of the Charter of Rights and Freedoms and that the government had breached obligations owed to them under the public trust doctrine. [1] It should be noted that the public trust doctrine, with a significant history in common law and statute in the United States, has yet to be clearly recognized in Canada. The plaintiffs argued that the defendants, the federal government, have a common law and constitutional obligation to “protect the integrity of common natural resources that are fundamental to sustaining human life and liberties.”[2]

More specifically, the plaintiffs alleged that the actions undertaken by the defendants to manage and prevent climate change were grossly insufficient by:[3]

1. causing, contributing to, and allowing a level of GHG emissions incompatible with a Stable Climate System;
2. adopting GHG emissions targets that are inconsistent with what is necessary to avoid dangerous climate change and restore a Stable Climate System;
3. failing to meet their own GHG emissions targets; and
4. actively participating in and supporting the fossil fuel industry.

In its defence, the Government of Canada conceded that while climate change is a major issue, the matter, as raised, is not justiciable as it does not deal with any one particular piece of federal legislation.[4] The defendants successfully brought a motion to strike the Statement of Claim [5] The Court has the ability to strike pleadings that do not disclose any reasonable cause of action or that do not have any reasonable prospect of success. [6] However, in making this determination, the pleadings must be read as generously as possible in order to ensure that novel but permissible claims are allowed to proceed to trial.[7]

In striking the claim, the Court found the Charter claims to be not justiciable and found, as well, that neither the section 7 or section 15 claims constituted reasonable causes of action.   In relation to the question of justiciability, the Court observed that there are “some questions that are so political that the Courts are incapable or unsuited to deal with them.”[8] Specifically, the Court found that questions of public policy approaches or approaches to issues of significant societal concern would fall under this banner. To be reviewable, policy issues would need to be translated into law or state action.[9] The Court did note the importance of managing climate change but that the “Court cannot circumvent its constitutional boundaries of the subject matter pleaded on the sole basis that the issue in question is one of societal importance, no matter how critical climate change is and will be to Canadians’ health and well-being, which is acknowledged.”[10]

The Court did find that the claim based in the public trust doctrine was justiciable, but struck the claim finding “there is no legal foundation to suggest that the public trust doctrine, as described by the Plaintiffs, discloses a reasonable cause of action. For the reasons that follow, this claim has no reasonable prospect of success.” Specifically, the Court found that the existence of the public trust doctrine is not supported by Canadian law.[11] The Court stated that “while there is a “notion” that public rights in the environment reside in the Crown, these authorities do not approach the breadth of the rights and actionable interests that the plaintiffs claim could exist at common law.”[12] The Court also dismisses the plaintiff’s argument that the public trust doctrine is an unwritten constitutional principle on the basis that the plaintiff’s did not plead any material facts to support this idea outside of the basic allegation.[13]

As of publication, the plaintiffs have not indicated what their next step will be.

Oceania

Next we move around the world to Australia where a novel class action lawsuit was filed against the Australian government. This complaint, Kathleen O’Donnell v Commonwealth of Australia & ORS, alleges that the government failed to disclose the material risk of climate change to investors when issuing government bonds.[14] The plaintiff is asking for an injunction to stop the marketing of these bonds until the risks are properly disclosed.[15]

Specifically, this case alleges that the Government of Australia did a number of things including: [16]

• failing to meet its duties of disclosure;
• engaging in misleading or deceptive conduct by disclosing some risk but not all material information about climate change related risks; and
• breaching its public duties by failing to disclose these risks and failing to perform their duties with reasonable care and diligence.

For damages, the plaintiff is asking for a declaration that the Commonwealth, the Treasury Secretary, and the CEO of the Australia Office of Financial Management breached their duty of disclosure regarding Australia’s Climate Change Risks and an injunction restraining the Commonwealth from further promoting these bonds until it complies with its disclosure requirements.[17] The first case management hearing in this matter will take place on November 10, 2020 in the Federal Court of Australia.[18]

A second Australian case was resolved this past month when in October 2020, a 25-year-old plaintiff (“Mr. McVeigh”) from Brisbane negotiated a successful settlement in his lawsuit against Australia’s biggest super fund.[19] In Australia, employers and self-employed people, direct a portion of their salary to a fund called a ‘super’ as part of their retirement savings.[20]

Mr. McVeigh argued that the superannuation fund Retail Employees Superannuation Trust (“Rest”) breached the Superannuation Industry Act and the Corporations Act by failing to manage the risks of climate change.[21] In coming to a settlement, Rest agreed that its trustees have a duty to manage the financial risks of climate change.[22] This was a major victory for Mr. McVeigh but for future cases, out of court settlements cannot be relied upon as precedent.[23]

While a Court decision on the matter would have been stronger for future plaintiffs, the outcome of the settlement may still signal a shift in investment behaviour. This is particularly so as Rest made a further statement in which they agreed to manage their investments in such a way so as to ensure they are responsible for net-zero GHG emissions by 2050.[24] This is a relatively bold statement and it will be interesting to see if other superannuation funds follow suit.

Both Australian cases represent a particularly novel way of framing climate litigation because they focus on corporate risk and disclosure rather than on constitutional rights –the strategy more often taken in climate litigation.  Back in Canada, lawyer Carol Hansell released an in-depth legal analysis this year about the role of corporate boards with respect to climate change risk and disclosure. In her opinion, “Putting Climate Change Risk on the Boardroom Table” she argued that, moving forward, corporate directors would be responsible for including climate change risks and opportunities in their financial evaluation.[25] The Courts have yet to rule on this; however, it was picked up as an important piece of legal writing and signals that the idea of corporate responsibility may be expanding.

Nearby, in New Zealand, the case of Smith v Fonterra Co-Operative Group Limited took a very different route. In this case, the plaintiff (“Mr. Smith”) sued 7 corporations, all of which are involved in an industry that releases GHGs or that supplies the products that release GHGs.[26] In doing so, the case raised three causes of action – public nuisance, negligence, and a breach of an inchoate duty and this decision resulted from the defendants motion to strike the proceeding.[27]

If successful in bringing forward the merits of this case, Mr. Smith is not asking for any monetary damages but rather is seeking declarations from each of the defendants that they have unlawfully caused or contributed to the public nuisance of climate change and an injunction requiring each of the defendants commit to zero GHG emissions by 2030.[28] In the end, both the public nuisance and negligence claims were struck from the statement of claim but the claim of a breach of an inchoate duty (a novel civil action) was allowed to move forward.[29]

In his claim for public nuisance, Mr. Smith alleged that he will suffer personal harm from rising sea levels which he argues is a result of “dangerous anthropogenic interference with the climate system.”[30] He asserts further harm including physical loss of land, damage to his family’s Maori customs, and adverse health impacts to which Maori communities are particularly vulnerable.[31]

However, the Court dismissed this part of the claim, finding that it could not succeed because the damage was neither particular nor direct nor was it any more serious than damage faced by other people living in New Zealand as a result of climate change.[32] The Court stated that “the impacts of climate change are all-pervasive and they are not confined to individuals or specific pieces of land or areas of resources.”[33] The Court further found that the harm being alleged was consequential and that it could not be tied directly back to the defendants’ activities.[34] Finally, the Court noted that public nuisance cannot be used for actions which are done in accordance with the law, finding that the actions of these companies occurred within the proper confines of New Zealand law.[35]

On the negligence claim, Mr. Smith alleged that the defendants had a duty to take reasonable care not to operate their business in a way that will cause loss through a contribution to anthropogenic interference with the climate system.[36] However, despite finding this to be a novel claim, the Court determined that the damage caused by the defendants was not reasonably foreseeable and the relationship between Mr. Smith and the defendants was not proximate, both required elements to make out a duty of care.[37] Without a duty of care, the tort of negligence cannot be established and the Court dismissed the claim.[38]

Finally, in arguing a breach of inchoate duty, Mr. Smith argued that the defendants owe him a duty to “cease contributing to damage to the climate system, dangerous anthropogenic interference with the climate system and adverse effects of climate change” through their GHG emissions.[39] This was where he found some success as the Court did not strike the claim of an inchoate duty allowing it to proceed to trial.

The Court did note that this duty had no analogies and that public policy rationale would pose significant hurdles to recognition of a new duty.  Nevertheless the Court was reluctant “to conclude that the recognition of a new tortious duty which makes corporates responsible to the public for their emissions is untenable.”[40] In making this decision, the Court stated that this cause of action should be explored further at trial in the event that it may open up a new area of tort.[41] If this trial goes ahead, it will be an important story to watch.

Europe

Europe has had some success in bringing climate litigation and the decision of the Supreme Court of Ireland in Friends of the Irish Environment v Ireland is also noteworthy. This decision was the result of an appeal brought by the environmental group, Friends of the Irish Environment (“FIE”) from a decision made by the High Court of Ireland in which the High Court found for the Irish Government.[42]

In their appeal, FIE argued that the Irish government’s approval of a National Mitigation Plan, a plan which ostensibly sets out Ireland’s path toward decarbonization, was in violation of Ireland’s Climate Action and Low Carbon Development Act 2015 (“Climate Act 2015”).[43] This Act requires that any National Mitigation Plan enable “the State to pursue and achieve, the transition to a low carbon, climate resilient and environmentally sustainable economy by the end of the year 2050.”[44] FIE argued that the existing National Mitigation Plan was ultra vires the legislation, stating that despite committing to an objective of zero net carbon emissions by 2050, the National Mitigation Plan still allowed an increase, rather than a decrease of emissions over the Plan’s initial years.[45]

In addition, FIE argued that the Government of Ireland was not upholding their Constitutional rights to life and was not fulfilling the state’s requirement to protect persons against a future threat to life arising from climate change.[46] FIE also extended this argument to their rights under the European Convention on Human Rights (“the Convention”). They argued that their rights under the Convention, particularly Articles 2 & 8, were being violated by the growing threat of climate change.[47]  In making this argument, they referenced the Urgenda case out of the Netherlands – suggesting that if the interpretation of the Convention, as determined by the Dutch Supreme Court is correct, then it would follow, that Ireland is also in breach of its obligations under the Convention.[48]

In the Urgenda case, the Dutch Supreme Court held that “the State is acting unlawfully (because in contravention of the duty of care under Articles 2 and 8 [of the European Convention on Human Rights]) by failing to pursue a more ambitious reduction [or GHG emissions] as of end-2020 and that the State should reduce emissions by at least 25% by end-2020.”[49]

In considering FIE’s constitutional arguments, the Supreme Court spent time considering the limits of standing – or, who can bring a constitutional action to the court. In doing so, they specified that, generally, constitutional rights are limited to individuals and do not apply to corporate bodies.[50] Specifically, the Court noted that while “an overly strict approach to standing could lead to important rights not being vindicated” the Court did not find that to be the case in this instance.[51] Instead, the Court held that FIE could have brought the case on behalf of an individual and therefore standing rights should not be expanded.[52] Despite this finding, the Court made an interesting observation, stating that, had standing been established, “it would have been necessary for this Court to consider the circumstances in which climate change measures (or the lack of them) might be said to interfere with the right to life or the right to bodily integrity.”[53] In the end, the Court dismissed FIE’s constitutional arguments including those raised under the European Convention on Human Rights.

While the constitutional argument could not be heard on its merits the Court did proceed to determine whether the government’s plan was in compliance with the Climate Act 2015.[54] In finding that the Plan failed to comply with the statutory mandate the Court noted that section 4 of the Climate Act 2015 requires a “sufficient level of specificity in the measures identified in a compliant plan that are required to meet the National Transitional Objective by 2050.”[55] The Court held that the National Mitigation Plan that was implemented fell well short of these requirements and should be quashed.[56]

Each of these cases relies on a different area of law and a different strategy to achieve a similar outcome – more government commitment to fighting climate change. As more examples of climate litigation move forward, lawyers and plaintiffs around the world are keeping a close watch. Although a case in Ireland or New Zealand cannot be relied upon as precedent in Canada, there is value in replicating strategy or argument when possible. Hopefully, in the upcoming year, we will have some successful Canadian cases to report on.

[1] Cecelia La Rose v Canada [2019] Statement of Claim at the Federal Court at para 6 online: http://davidsuzuki.org/wp-content/uploads/2019/10/Statement-of-Claim-2019-10-25-FILED.pdf.

[2] Ibid at para 7.

[3] Ibid at para 5.

[4] Jon Hernandez, “Ottawa argues youth-led climate change lawsuit too broad to be tried in court” (30 September 2020) CBC News online: https://www.cbc.ca/news/canada/british-columbia/climate-change-lawsuit-1.5744518.

[5] La Rose v Canada, 2020 FC 1008 at para 101.

[6] Ibid at para 13.

[7] Ibid at para 18.

[8] Ibid at para 40.

[9] Ibid at para 40.

[10] Ibid at para 48.

[11] Ibid at para 59.

[12] Ibid at para 92.

[13] Ibid at para 98.

[14] Notice of Filing: Kathleen O’Donnell v Commonwealth of Australia & ORS, [2020] FCA VID482/2020 online: http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200722_11843_complaint.pdf [Kathleen O’Donnell v Commonwealth of Australia]

[15] Ibid at para 26.3.

[16] Paula Lombardi, “Climate-Change Litigation: Failure to Disclose Risks” (8 September 2020) Mondaq online: https://www.mondaq.com/canada/climate-change/983154/climate-change-litigation-failure-to-disclose-risks?email_access=on.

[17] Kathleen O’Donnell v Commonwealth of Australia & ORS, supra note 1 at para 26.

[18] Equity Generation Lawyers, “O’Donnell v Commonwealth and Ors” online: https://equitygenerationlawyers.com/cases/odonnell-v-commonwealth/.

[19] Michael Slezak, “Rest super fund commits to net-zero emission investments after Brisbane man sues” (2 November 2020) ABC News online: https://www.abc.net.au/news/2020-11-02/rest-super-commits-to-net-zero-emmissions/12840204 [Michael Slezak, “Rest super fund commits to net-zero emission investments after Brisbane man sues”]

[20] Australian Super, “What is superannuation?” online: https://www.australiansuper.com/superannuation/what-is-super.

[21] Michael Slezak, “Super fund REST being sued for not having a plan for climate change” (24 July 2018) ABC News online: https://www.abc.net.au/news/2018-07-25/super-fund-rest-sued-for-not-doing-enough-on-climate-change/10029744.

[22] Michael Slezak, “Rest super fund commits to net-zero emission investments after Brisbane man sues”, supra note 19.

[23] Adam Morton, “Australian super fund agrees to factor climate crisis into decisions in ‘groundbreaking’ case” (2 November 2020) The Guardian online: https://www.theguardian.com/australia-news/2020/nov/02/australian-super-fund-agrees-to-factor-climate-crisis-into-decisions-in-groundbreaking-case.

[24] Michael Slezak, “Rest super fund commits to net-zero emission investments after Brisbane man sues”, supra note 19.

[25] Carol Hansell, “Putting Climate Change Risk on the Boardroom Table” (2020) Hansell LLP at 1 online: https://law-ccli-2019.sites.olt.ubc.ca/files/2020/06/Hansell-Climate-Change-Opinion-1.pdf?file=2020/06/PUTTING-CLIMATE-CHANGE-RISK-ON-THE-BOARDROOM-TABLE.pdf.

[26] Smith v Fonterra Co-Operative Group Ltd., [2020] NZHC 419 at paras 1-2.

[27] Ibid at paras 10, 13 & 15.

[28] Ibid at para 14.

[29] Ibid at para 109.

[30] Ibid at para 10.

[31] Ibid at para 10.

[32] Ibid at para 62.

[33] Ibid at para 62.

[34] Ibid at para 63.

[35] Ibid at paras 68-69.

[36] Ibid at para 75.

[37] Ibid at paras 81 and 92.

[38] Ibid at para 75.

[39] Ibid at para 15.

[40] Ibid at paras 102-103.

[41] Ibid at para 103.

[42] Friends of the Irish Environment v The Government of Ireland [2020] IESC 205/19 [Friends of the Irish Environment v Ireland].

[43] Climate Action and Low Carbon Development Act 2015, (2015) 46 online: http://www.irishstatutebook.ie/eli/2015/act/46/enacted/en/pdf.

[44] Friends of the Irish Environment v Ireland, supra note 42 at para s 2(1); Climate Case Ireland, “What is this case about?” online: https://www.climatecaseireland.ie/climate-case/#about-the-case.

[45] Friends of the Irish Environment v Ireland, supra note 42 at para 4.3.

[46] Ibid at para 5.3.

[47] Ibid at para 5.8.

[48] Ibid at para 5.13.

[49] Friends of the Irish Environment v Ireland, supra note 42 at para s 2(1); Climate Case Ireland, “What is this case about?” online: https://www.climatecaseireland.ie/climate-case/#about-the-case.

[50] Ibid at para 7.5.

[51] Ibid at para 7.21.

[52] Ibid at paras 7.22 – 7.24.

[53] Ibid at para 8.14.

[54] Ibid at para 9.2.

[55] Ibid at para 9.2.

[56] Ibid at para 9.3.

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