Climate change litigation in both the private and public sectors has emerged and is rapidly expanding in some areas of the world. While we are not yet seeing this rate of growth in Canada, this nascent area of potential liability continues to develop. Accordingly, Canadian and international businesses must stay informed of the changing litigation landscape and its corresponding implications.
In Canada, we have seen litigation related to actual carbon pricing legislation, as well as claims based on the alleged lack of response to climate change by the government. On one hand, parties who demand more strident action to combat climate change have brought actions against governments seeking to compel further action. On the other hand, several provinces have challenged the signature federal carbon pricing legislation, the Greenhouse Gas Pollution Pricing Act. In this update, we focus on potential actions against corporations, existing actions against the federal government and non-litigation developments that may impact climate change litigation.
Government of Canada declares national climate emergency in Canada
The House of Commons passed a motion declaring a national climate emergency in Canada on June 17, 2019. The motion, advanced by Environment and Climate Change Minister Catherine McKenna, declared that climate change is an urgent crisis that affects the health and security of Canadians, and impacts the Canadian economy. This motion was prompted by a report released by Environment and Climate Change Canada in April 2019, which addressed the impacts of climate change on Canadian communities, the environment and the economy. The report concluded that Canada is warming at twice the global average, and details the urgency of committing to Canada’s international obligations outlined in the Paris Agreement.
What does this motion mean for businesses in Canada? The motion declares that Canada is in a national climate emergency, which requires a response that Canada commits to meeting its national emission target under the Paris Agreement. It does not put in place any new policies, but does affirm that one of Parliament’s top priorities is to combat the effects of global warming. The motion could impact future climate change litigation by providing a basis for judicial notice of climate change, and its impacts on communities, the environment and the economy.
More recently, the Government of the Yukon Territory, the City of Toronto and the City of Edmonton made similar declarations of a climate emergency, joining nearly all the large Canadian cities and several hundred other Canadian municipalities that have already made such declarations.
Litigation against energy companies
The British Columbia cities of Vancouver, Victoria, Richmond and Port Moody are all considering filing claims against large conventional energy companies, potentially as a class action. The City of Victoria had previously advanced a motion at the Union of British Columbia Municipalities calling for its members to explore a class action lawsuit “to recover costs arising from climate change from major fossil fuel companies.”
While the City of Victoria later withdrew its motion and a similar motion by the City of Port Moody was defeated, municipalities in British Columbia appear to be continuing to consider litigation. Victoria has obtained an internal legal opinion, and a British Columbia law firm intends to share a legal opinion on the viability of a claim against conventional energy companies with Victoria and Vancouver later this fall.
Several municipalities have also requested British Columbia enact legislation that would support a claim against conventional energy companies, as the provinces did for their claims against tobacco companies. Greenpeace Canada and West Coast Environmental Law Association previously assisted with drafting such a bill that was introduced in the Legislative Assembly of Ontario, but was not enacted.
Bank of Canada’s Financial System Review
In May 2019, The Bank of Canada released its first ever report on the threat that climate change poses to the country’s financial system. The Financial System Review incorporates climate change risk into the Bank of Canada’s analysis of the main vulnerabilities and risks to the Canadian economy and its financial stability.
The Financial System Review also addressed climate-related disclosure by Canadian companies. In the Bank of Canada’s view, the risks to the financial system from climate change can be managed most effectively when investors and governmental authorities know the exposure that businesses face. The review references the recommendations of the Financial Stability Board’s Task Force on Climate-related Financial Disclosure, including its recommendation that companies publish climate-related financial information. These developments may support action by other regulators to require companies to disclose their climate-related risks.
The Bank of Canada is undertaking a multi-year research plan to better assess the risks from climate change. This plan includes collaboration with domestic and international partners, such as central banks and the Supervisors Network for Greening the Financial System (NGFS). In April 2019, the NGFS released a first comprehensive report, which includes recommendations related to central banks.
Litigation against the Government of Canada
In November 2018, the environmental group ENvironnement JEUnesse (ENJEU) filed a class action lawsuit against the Government of Canada. ENJEU claimed that the federal government’s failure to adopt certain greenhouse gas emission targets violates Canadian Charter and Québec Charter rights of the purported class, being all Québec citizens aged 35 years and under. ENJEU’s claim sought various declarations and punitive damages in an attempt to compel the federal government to take further action to reduce Canada’s greenhouse gas emissions.
In July 2019, the Superior Court of Québec denied certification to the purported class action on the basis that the proposed class was arbitrary and that a class proceeding was not a preferable procedure to a standard action by one plaintiff. However, the Court did find that the government’s actions with respect to reduce greenhouse gas emissions was prima facie reviewable by the courts where it engaged Canadian Charter rights. While ENJEU has appealed this decision, the findings by the Court set the stage for future conventional (i.e., non-class) actions.
On October 25, 2019, a group of plaintiffs aged 10 to 19 from across Canada filed a lawsuit in the Federal Court Canada against the federal government, La Rose v Her Majesty The Queen. The 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, and failing to protect public trust resources and Canadian children. The relief sought includes an order requiring the federal government to implement an enforceable climate recovery plan to achieve emission reductions. The plaintiffs are supported by the non-governmental organizations Our Children’s Trust, the David Suzuki Foundation and the Pacific Centre for Environmental Law and Litigation.
These lawsuits follow the trend of young people suing their governments for climate change related issues. In a similar proceeding in the Netherlands, the plaintiffs were successful in obtaining a court order directing the Dutch government to reduce carbon emissions by at least 25 percent by 2020. There have been similar claims filed in the US and elsewhere. The Federal Court of Canada will likely need to revisit the issues raised before the Superior Court of Québec in ENJEU regarding whether government climate change policy decisions are reviewable based on Canadian Charter rights.
For more information about climate change in Canada or globally, or other environment-related matters, please contact Alex MacWilliam, Kelly Osaka, David Konkin or another member of Dentons’ Environment and Natural Resources group. As the world’s largest law firm with 181 locations serving 73 countries, Dentons leverages its deep local knowledge to track climate change litigation wherever it is happening in the world.
