Environmental Litigation on the Rise in Corporate Canada and Around the World
September 10, 2019
Climate change litigation continues to evolve in many jurisdictions and Canada has seen its fair share of proceedings seeking to hold governments and the oil and gas, energy and power industries responsible for carbon dioxide emissions.
CLIMATE CHANGE LITIGATION AT HOME AND ABROAD
The genesis of much climate change litigation was a 2015 decision of the Hague District Court where it held that there was a requirement “to avert the eminent danger caused by climate change” and averted to the government’s “duty of care to protect and improve the living environment”. That action was brought by an environmental interest group (Group) whose purpose is stated to “simulate and accelerate the transition processes to a more sustainable society, beginning in the Netherlands”. In granting relief, the court ordered the state to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that the volume would be reduced by at least 25 per cent at the end of 2020 compared to the level of the year 1990.
In so concluding, the court found, among other things, that the Group had standing to seek relief, that the state owed a duty of care to take necessary measures to reduce greenhouse gas emissions and found the existence of a sufficient causal link between the Dutch greenhouse gas emissions, global climate change and the effects (now or in the future) on the Dutch climate. The court of appeal upheld the lower court decision and the government appealed that decision to the Supreme Court of the Netherlands, which has yet to release its decision.
While some of the findings of the courts in those decisions are reliant upon specific domestic laws, they have also relied upon various international conventions and laws that plaintiffs in other jurisdictions have adopted in pursuing similar relief.
In Canada, some organizations and political parties have pursued similar agendas. In 2018, a bill was introduced in Ontario that provided that fossil fuel producers would be strictly liable for claimed climate-related harms that occurred in Ontario. The preamble to the bill proclaimed that governments, businesses and individuals should ensure that they contribute to paying for the claimed harms to which their products allegedly contribute. The bill was not passed into law.
Greenpeace Canada also brought an application for judicial review against the Ontario government’s decision to revoke operational elements of Ontario’s cap-and-trade system intended to reduce greenhouse gas emissions. That action was recently subject to an unsuccessful motion to quash.
In ENvironnement JEUnesse v. Attorney General of Canada, a group of citizens are claiming that the Canadian government failed to set up a greenhouse gas emission reduction target and plan to avoid dangerous climate change impacts. On July 11, 2019, the Quebec Superior Court dismissed a motion to institute a class action finding that there was insufficient justification for the age limits of the class.
Earlier this year, the City of Victoria’s council became the first Canadian municipality to support filing a class action lawsuit which seeks to have oil and gas companies pay a portion of the costs associated with claimed climate change.
The United States
Several U.S. municipalities have also commenced lawsuits against oil companies related to climate change claims. Those suits have been met with resistance and have been routinely dismissed by the courts. For example, the United States District Court for the Southern District of New York dismissed New York City’s lawsuit to require fossil fuel companies to pay for the cost of dealing with climate change. The court in that case held that “the serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government”. Similar lawsuits have resulted in the same fate. In the U.S. Supreme Court decision in American Electric Power Co., Inc. et. al. v. Connecticut, a municipality and three private land trusts brought a public nuisance suit under federal common law against the five largest emitters of carbon dioxide in the United States. In striking the claim, the U.S. Supreme Court held that the Clean Air Act and related Environmental Protection Agency actions, which that legislation authorizes, displaces any federal common law right to seek abatement of carbon dioxide emissions from fossil-fuel fired plants.
In the closely watched 2019 lawsuit, Juliana v. United States, the plaintiffs cite the ninth and tenth amendments of the U.S. Constitution, which they claim require the government to protect the rights of present and future generations to essential natural resources that are of public concern including the air, water, sea and wildlife. The plaintiffs claim that the government must be proactive in protecting those resources and to refrain from “substantial impairment of those essential resources”. The relief sought includes a declaration that the plaintiffs’ fundamental constitutional rights to life, liberty and property have been violated and the government is allegedly causing or contributing to a dangerous concentration of carbon dioxide in the atmosphere.
The federal government vigorously opposed the claims and, on October 22, 2018, Chief Justice John G. Roberts Jr. enjoined the trial from proceeding. Proceedings have continued in the Ninth Circuit Court of Appeals this year and the parties are awaiting further decisions of the court.
While climate change litigation is evolving, it is expected that additional actions will be filed against both governments and corporations involved in the oil and gas, energy and power industries, seeking compensation arising from alleged climate change impacts. There are a number of strategies and defences available to mitigate the risks from this emerging litigation trend. For example, some U.S. courts have been receptive to summary dismissal applications premised on arguments to the effect that such claims are simply not justiciable by the courts and are uniquely matters for governments to consider as matters of both domestic and foreign policy. These and other strategies are available to successfully resist such litigation.
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