Litigating Climate Change: An Update on a Strengthening Trend

Climate change litigation is becoming an increasingly effective tool for influencing policy outcomes and corporate behaviour. In truth, it has already become something of a global trend. According to a recent report from the Grantham Research Institute on Climate Change and the Environment, there were 154 climate change lawsuits filed in the United States between 2017 and 2019, while there were over 300 such claims filed in 27 other different countries across the world.[1] 

The majority of climate change litigation is actually driven by young people, as well as NGOs, seeking to hold public bodies accountable for climate change and press national governments to undertake increasingly ambitious mitigation efforts.[2] However, a rising number of claims have begun targeting private actors – such as energy and fossil fuel companies.[3]  

Climate change litigation is gaining momentum with some recent successes. This past summer in the Netherlands, the Hague Court of Appeal upheld an order requiring the Dutch government to reduce its greenhouse gas emissions by at least 25% by the end of 2020.[4] In September 2019, 16-year-old climate activist Greta Thunberg and 15 other young people from around the world filed a legal complaint against five of the world's biggest global carbon polluters - Brazil, France, Germany, Argentina, and Turkey. Thunberg and her peers filed the complaint under the 1989 UN Convention on the Rights of the Child, which stipulates a set of inalienable rights for all children worldwide, including life, health, and peace. The complaint alleges that accelerating climate change puts those rights at risk.[5]

It is against this backdrop that climate change litigation has arrived in Canada. Specifically, there are currently at least two ongoing class-action suits against the Government of Canada, and a group of BC municipalities is considering filing claims against large conventional energy companies.

Litigation Against the Canadian Government

On November 26, 2018, the Quebec-based environmental group ENvironnement JEUnesse (ENJEU) filed a class action lawsuit against the Government of Canada. In short, ENJEU claimed that the federal government’s failure to adopt certain greenhouse gas emission targets violates the rights and freedoms of the purported class, being all Québec citizens aged 35 and under.

ENJEU argues that the government’s inaction on climate change constitutes bad faith and is an unlawful and intentional interference with the right of class members to life, liberty and security of the person as well as their equality rights. It also contends that the future socio-economic costs of climate change will disproportionately burden younger generations. In response, the government argued the courts were not the proper place to determine this issue and that allowing it to proceed would constitute an unjustified interference by the courts.

On July 11, 2019, the Quebec Superior Court held that, while the issues raised by ENJEU were justifiable (appropriate for court review), the proposed class of individuals (Quebeckers under 30) was too arbitrary. Recognizing the overall importance of the issues at hand, Justice Morrison wrote “[a]lthough the mission and objectives of [the group] are admirable on the sociopolitical level, they are too subjective and limiting in their nature to form the basis of an appropriate group for the purpose of exercising collective action.”[6]

ENJEU has appealed the court’s decision and is awaiting an outcome as of the date of writing. However, even if this appeal is unsuccessful, it is worth noting that the Quebec Superior Court left the door open for a properly constituted class or individual to proceed with bringing a claim related to government inaction on climate change.

On October 25, 2019, a group of 15 children and youths, aged 10 to 19, from across Canada filed a lawsuit in the Federal Court of Canada against the federal government. Similar to ENJEU’s class action, these plaintiffs claim that the federal government failed to maintain a stable climate system capable of sustaining human life and individual liberties, thereby violating the Canadian Charter of Rights and Freedoms, and failing to protect public trust resources and Canadian children. They seek declaratory relief, as well as an order requiring the federal government to implement an enforceable Climate Recovery Plan to achieve emission reductions. It is worth noting that these plaintiffs are supported by various NGOs, including Our Children’s Trust, the David Suzuki Foundation and the Pacific Centre for Environmental Law and Litigation. [7]

McLennan Ross previously provided an in-depth look at the ENJEU class action on our blog, which can be found here.

Potential Litigation Against Corporations

In January 2019, the City of Victoria became the first municipality in Canada to support the filing of a class action lawsuit against Alberta-based oil and gas producers so as to recover costs for climate-related harms. Victoria’s City Council resolved to support such a class action and asked other municipalities in British Columbia to examine the possibility of initiating the lawsuit at their annual meeting in September.[8]

The justification offered for the contemplated class action was that suing oil and gas companies would help municipalities offset the prevention and clean-up costs associated with damage caused by climate change linked events, such as floods and wildfires.  While the City of Victoria later withdrew its motion in support of such a claim, other municipalities in British Columbia and elsewhere in Canada are still continuing to consider this type of litigation.[9]

Implications

It is anticipated that the Canadian claims described above, like the lawsuits that have come before them in the United States and around the world, will face significant obstacles.  However, now that climate litigation has arrived in Canada, it is important to acknowledge that the public pressure these types of actions foster could have a knock-on effect on Canada’s operating landscape.

As a result, companies should not only take adequate steps to prepare for potential climate change lawsuits, but also remain mindful that the regulatory regime may be subjected to significant changes as well, driven by societal pressures which now include the increased risk of litigation against government and industry.

For further information about climate change litigation and risk mitigation strategies, please contact any member of our Energy, Environmental and Regulatory Practice Group.