In the Crosshairs: Federal Government Finds Itself at the Centre of Rights-based Climate Litigation

Courtesy of McCarthy Tetrault. View original article here.

In 2015, the case of Urgenda Foundation v. The State of the Netherlands(Urgenda) broke new ground as the first successful climate change action founded in tort law and the first time a court has determined the absolute minimum emissions reduction target for a developed state. Following the Urgenda decision, a number of rights-based climate litigation cases were brought in other jurisdictions including Belgium, the United States and Colombia, among others (these cases are discussed in further detail below). While the claims in these cases have varied slightly from country to country, plaintiffs have most commonly sought orders to compel governments to achieve specific reductions in greenhouse gas (GHG) emissions. Now, Canada also finds itself at the centre of a rights-based class action suit brought in Québec, in a situation of what the plaintiffs view as insufficient action by the federal government to curtail GHG emissions.

In its 2012 Climate Vulnerability Monitor report, DARA pegged the total costs of climate change and the carbon economy in 2010 at 1.7% of global GDP (or US $1.2 trillion), which is expected to rise to 3.2% of global GDP by 2030. In 2011, the National Round Table on the Economy and the Environment calculated that the cost of climate change for Canada is expected to cost Canada’s economy $5 billion a year by 2020, and could grow to between $21 to $43 billion a year by 2050 (representing roughly 1% of GDP that year). As costs continue to rise, climate change litigation is being increasingly seen as a means by which concerned citizens around the globe can seek to hold governments and industry accountable for failing to take sufficient action to prevent the threat posed by climate change. Climate change cases are complex and generate myriad legal issues among various stakeholders across sectors – this is because there no typical litigant, no central legal question that defines climate change disputes, and often no common remedy sought. The ENvironnement JEUnesse v. Attorney General of Canada case is the latest salvo in the quest by individuals and NGOs to spur action on climate change.

ENJEU Pursues a Class Action on Behalf of Québec Youth

On November 26, 2018, ENvironnement JEUnesse (ENJEU) filed an application with the Superior Court of Québec to obtain authorization to institute a class action on behalf of all Québec young people under the age of 35 against the federal government, represented by the Attorney General of Canada.

ENJEU claims that by failing to take sufficient action to prevent the threat posed by climate change, the federal government has infringed rights protected by the Canadian Charter of Rights and Freedoms (Canadian Charter) and Québec’s Charter of Human Rights and Freedoms  (Québec Charter). Specifically, ENJEU argues that the federal government has infringed:

  • The right to life, liberty and security of the person (Section 7 of the Canadian Charter; Section 1 of the Quebéc Charter) by “adopting emissions targets that it knows are harmful to human life and health”, and that this violation is contrary to the principles of fundamental justice;
  • The right to equality (Section 15 of the Canadian Charter; Section 10 of the Québec Charter) by disproportionately burdening younger generations with the future costs of climate change; and
  • The right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law (Section 46.1 of the Québec Charter), by adopting emissions targets that will result in environmental degradation, in contravention of sections of the Canadian Environmental Protection Act.

ENJEU is seeking from the court a declaration to this effect, as well as punitive damages aimed at deterring the federal government from continuing to infringe constitutional rights in this manner. In order to obtain authorization to institute the class action, ENJEU must demonstrate that:

  • The class members’ – that is all Québec young people under 35’s – claims raise identical, similar, or related questions of law or fact;
  • The facts alleged in the application, if proven, appear to justify the conclusions sought;
  • The composition of the class justifies a class action, in that it would be difficult or impracticable for class members to individually bring claims; and
  • The class member appointed as the representative plaintiff, the Executive Director of ENJEU Catherine Gauthier, is in a position to properly represent the class members.

The Superior Court of Québec is likely to issue a decision regarding whether to authorize the class action within a year. If ENJEU’s application is unsuccessful, they will have an automatic right of appeal; if ENJEU’s application is successful, the federal government will have to seek permission from the Québec Court of Appeal in order to appeal the decision. Thus, even if class action is ultimately authorized, it is likely to be a number of years before the case is heard on the merits.

Right-based Climate Litigation Around the Globe

ENJEU’s application to obtain authorization to institute a class action against the federal government is not the first case involving a plaintiff suing one or more governmental defendants for infringing rights guaranteed under domestic or international legislation by failing to take sufficient action to prevent the threat posed by climate change.  Rather, it is merely the latest development in a global trend of ‘rights-based’ climate litigation.

While the arguments made in claims brought to date in the Netherlands, Belgium, the United States and Colombia, among other countries, have varied slightly from country to country, plaintiffs have most commonly sought orders to compel governments to achieve specific reductions in GHG emissions. Some of the most recent and notable examples of rights-based climate litigation are described below.

Arguably the first example of rights-based climate litigation, the Urgenda Foundation (Urgenda), filed a petition at the District Court of The Hague against the Dutch government on November 20, 2013, claiming that by failing to take sufficient action to prevent climate change, the Dutch government had breached its obligations towards Dutch citizens under Dutch common law, the Dutch Constitution, the European Convention on Human Rights (ECHR).

Urgenda asked the court to order the Dutch government to reduce the value of annual greenhouse gas emissions by at least 25 percent below 1990 levels by the end of 2020, in order to do its part to limit global temperature rise to 2 degrees Celsius above pre-industrial levels.

Using the Dutch Constitution and the EHRC to inform Dutch common law, the court found that the Dutch government had breached its duty of care towards Dutch citizens by pursuing a reduction target of less than 25% by the end of 2020, contrary to recommended by the Intergovernmental Panel on Climate Change (IPCC), and ordered the injunctive relief sought by the plaintiffs.

The decision released by the District Court of The Hague on June 24, 2015, was the first in which a court accepted a rights-based argument to hold a government accountable for failing take sufficient action to prevent the threat posed by climate change, paving the way for rights-based climate litigation in other countries. While the Dutch government appealed the decision, it was ultimately upheld by The Hague Court of Appeal on October 9, 2018.

Prompted by the Urgenda case, the public interest group Klimaatzaak sued the federal and regional governments of Belgium in April 2015, similarly alleging that by failing to take sufficient action to prevent climate change, the governments had breached their obligations towards Belgian citizens under the Belgian civil code, the Belgian Constitution, as well as the ECHR.

As in Urgenda, the plaintiff is seeking an order that the Belgian governments reduce their greenhouse gas emissions, in this case by 40 percent relative to 1990 levels, by 2020. A three-year procedural dispute concerning whether to conduct the litigation in French or Dutch was recently resolved in June 2018, and it is anticipated that the oral pleadings will be heard in the second half of 2020.

Similarly prompted by the Urgenda case, 21 individual youth plaintiffs, Earth Guardian and a plaintiff identified as “Future Generations” (the Juliana Plaintiffs), filed a complaint at the US District Court of Oregon against the US government on August 12, 2015, alleging that through affirming actions that cause climate change, the US government had violated their “constitutional rights to life, liberty, and property, as well as failed to protect essential public resources.”

As in the Urgenda and Klimaatzaak cases, the plaintiffs are seeking a declaration to this effect, as well as an order that the US government enacted policies to reduce greenhouse gas emissions and stabilize the climate system, although do not request a specific level of emission reduction by a specific date.

In December 2018, after numerous procedural attempts by the US government to prevent the case from proceeding, the Ninth Circuit Court of Appeal  granted the government’s petition for an interlocutory or ‘pre-trial’ appeal. The government has been given until February 1, 2019 to file its opening briefs. The outcome of this interlocutory appeal will determine when or even if this case will be heard on the merits.

On January 29, 2018, 25 youths from across Colombia (Future Generations) filed a tutela, a Colombian legal action to  enforce the protection of human rights, against the Colombian government, represented by the Ministries of Environment and Agriculture, alleging that by failing to prevent deforestation in the Colombian Amazon and the increase in average temperature across the country, the Colombian government had violated their constitutional rights to life, health, food, water and a healthy environment.

On April 13, 2018, the Supreme Court of Justice of Colombia issued a judgement accepting the claim by Future Generations, recognizing that the deterioration of the environment violates fundamental rights of current and future generations. It ordered the Colombian government to create an “intergenerational pact for the life of the Colombian Amazon” in order to reduce deforestation and greenhouse gas emissions.

While these and other right-based climate litigation cases (including cases in Norway, Switzerland, Ireland, Pakistan, Germany and France) have been met with varying degrees of success, in the absence of serious action to curtail greenhouse gas emissions, governments can and should expect groups to continue use the court system to prompt what they and the scientific community deem is necessary to prevent the most serious harms of climate change. While not directly implicated in these proceedings, businesses could find themselves impacted by a successful claim, particularly within a government policy context. For example, a rights-based claim (whether successful or not) could prompt governments to introduce legislation that makes it easier for stakeholders (including governments) to recover climate change damages from significant GHG producers. As a result, prudent businesses will be looking to monitor both legal and policy developments in climate change litigation as the body of case law evolves.

Courtesy of McCarthy Tetrault. View original article here.