By: Erin Dobbelsteyn, LLM Candidate and Environmental Justice Research Fellow 2019-2020
Introduction
On December 20, 2019, the Supreme Court of the Netherlands released its decision in Urgenda Foundation v The State of the Netherlands, a ground-breaking case about government responsibility for effective action on climate change. Marking the end of a 7-year legal saga, the Supreme Court upheld the earlier decisions of the District Court and the Court of Appeal, finding that the Dutch government had an obligation to protect its residents from dangerous climate change and ordering the state to reduce its greenhouse gas (GHG) emissions by at least 25% compared to 1990 by the end of 2020. The success of the Urgenda case, the first time that a court ordered a nation to ramp up its climate change mitigation measures, was celebrated by environmental activists, advocacy groups, lawyers, and legal scholars around the globe.
As predicted when the District Court ruling was released in 2015, the Urgenda case sparked an international movement to use courts as a tool to hold governments accountable for failing to properly address the devastating impacts of unabated GHG emissions. Similar cases have popped up in Belgium, Columbia, France, Germany, India, Ireland, New Zealand, Pakistan, South Korea, Switzerland, the United Kingdom, and the United States (see also the Sabin Center for Climate Change Law at Columbia Law School’s database, which contains a record of all of the climate-related lawsuits around the world). Many of these legal challenges are led by young people who, concerned about their future, are urging their governments to take greater steps to combat climate change.
Canada is no exception to this global trend. There are currently four climate litigation cases against Canadian governments that are set to be heard in 2020. Each of these cases raises novel and challenging issues for litigants, governments, lawyers, and judges to grapple with, including: justiciability of policy-laden decisions; positive v. negative obligations under the Charter; establishing causation; and effective remedies. Hoping to provide some prescient insight for the year ahead, this blog post summarizes these cases and explores the potential impact that Urgenda may have on Canadian climate litigation.
Summary of the Urgenda Decision
Urgenda Foundation, a Dutch environmental coalition, representing itself and nearly 900 Dutch citizens, filed a claim in The Hague District Court in 2013 after its requests that the government voluntarily increase its climate ambition went unanswered. Relying on domestic law, international law, and European human rights law, Urgenda claimed that the Dutch government is legally obliged to take action to reduce national GHG emissions, which are contributing to a dangerous change in the climate. In its defence, the Dutch government argued that no such legal obligation existed and that the extent to which national GHG emissions should be reduced is a political question exempt from judicial intervention. At the time the case was launched, the Netherlands had recently weakened its national GHG emissions reduction commitment.
When it released its judgment in 2015, the District Court found that the government’s climate policy was insufficient in light of the duty of care it owed to current and future citizens. This finding was based in tort law, but the court expanded the government’s duty to include protection from the hazards of climate change by interpreting it in the context of existing constitutional and human rights obligations. Specifically, the court found that the scope of the Dutch government’s duty of care was influenced by constitutional obligations, as well as the objectives of international and European human rights and climate treaties to which the Netherlands has committed. These obligations included the necessity of early and expeditious GHG emissions reductions.
The Hague Court of Appeal upheld the District Court’s decision in 2018. While the Court of Appeal agreed with the District Court’s finding that the Netherlands had breached its duty of care by failing to implement a more ambitious reduction of GHG emissions, it disagreed with the lower court’s conclusion that Urgenda could not directly invoke the European Convention on Human Rights (ECHR). The Court of Appeal found that Article 2 (which protects the right to life) and Article 8 (which protects the right to respect for private and family life) of the ECHR imposed a duty on the Netherlands to take suitable measures to protect against the genuine threat of climate change, which poses a risk that the current generation of Dutch citizens will be confronted with loss of life and/or a disruption of family life. In this case, the Netherlands’ insufficient short-term GHG emissions reduction target was found to be in violation of the state’s human rights obligations under the ECHR.
The Supreme Court dismissed the Dutch government’s arguments on appeal and upheld the Court of Appeal’s reasoning and conclusions. In its judgment, the Supreme Court was unequivocal that climate change threatens human rights. Although it acknowledged that the determination of the specific measures required to reduce GHG emissions was, in principle, a matter for the government and parliament, the Court of Appeal found that a court may be permitted to establish the state’s minimum fair share of global GHG emissions reduction where there are (like in this case) concrete views, agreements, and/or consensus in the international community about a country’s respective responsibility. Speaking to the media regarding the significance of the Supreme Court decision, Urgenda’s lawyer stated: “The court was very clear. Human rights protect people against the impacts of climate change and the government and parliament have to respect those human rights when defining their policies.”
Canada’s Climate Litigation Cases
The climate litigation cases that have popped up in Canada over the last year contain similar claims to those advanced in Urgenda, including the connection between climate change and human rights violations. In November 2018, ENvironnement JEUnesse launched class action lawsuit on behalf of all Québec citizens aged 35 and under. ENJEU alleges that the federal government’s GHG emissions reduction target is not ambitious enough to avoid dangerous climate change and the government is therefore violating the Canadian Charter of Rights and Freedoms (the Charter) and the Québec Charter of Human Rights and Freedoms. The motion for certification of the class was dismissed by the Superior Court of Québec in June 2019, but ENJEU has appealed this decision.
In October 2019, fifteen youth from across the country filed a lawsuit against the Canadian government challenging its role in causing, contributing to, and permitting a level of GHG emissions that is incompatible with a stable climate capable of sustaining human life and liberties. The plaintiffs in the La Rose case seek declarations that Canada has infringed their rights – and the rights of all children and youth in Canada, present and future – under sections 7 and 15 of the Charter, as well as failed to discharge their constitutional and common law public trust obligations to protect the integrity of common natural resources. They seek a Court-ordered requirement for Canada to develop and implement a climate plan that is consistent with Canada’s fair share of the global GHG emissions reductions necessary to protect their constitutional rights and the public trust resources.
A similar case, though slightly less broad in scope, was launched by seven youth climate activists in November 2019 on behalf of all Ontario youth and future generations. Mathur et al. v Ontario is a challenge to the Ontario government’s decision to weaken its GHG emissions reduction target (shortly after Doug Ford began his term as premier) on the grounds that it violates the rights of Ontario youth and future generations under sections 7 and 15 of the Charter. The remedy sought in this case is an order that Ontario set a science based GHG emissions reduction target that is consistent with Ontario’s share of the minimum level of reductions necessary to limit global warming to below 1.5°C (or well below 2°C) above pre-industrial temperatures.
Finally, in February 2020, two hereditary Head Chiefs of Wet’suwet’en House groups, on their own behalf and that of their houses, filed a legal challenge, Lho’imggin et al. v Her Majesty the Queen, against the federal government. The plaintiffs allege that in failing to enact legislation which meets its international climate change obligations, Canada has breached its duty to keep global warming below 2°C and violated their sections 7 and 15 Charter rights.
Lessons and Potential Implications of Urgenda for Canadian Climate Litigation
The arguments raised in these Canadian climate cases bear similarities to those advanced in Urgenda. Significant differences between the legal systems and traditions of Canada and the Netherlands, however, preclude direct transposition of Urgenda’s underlying legal principles or a guarantee of similar success in Canadian climate litigation. One of the most significant differences is that the European Court of Human Rights’ jurisprudence establishes that the duties imposed on member states under Articles 2 and 8 of the ECHR includes a positive obligation to take appropriate steps to safeguard the rights of its residents where they are subject to a real and immediate risk of which the state is aware, regardless of whether the risk is posed by hazardous activity conducted by the government or third parties. Whether or not the Charter imposes similar positive obligations on the Canadian government to take specific action to safeguard constitutional rights is a matter of substantial debate that has yet to be concretely resolved by the courts (see, for e.g., Justice Arbour’s dissent in Gosselin v Quebec (Attorney General) and the Ontario Court of Appeal’s decision in Tanudjaja v Canada (Attorney General)).
Despite significant differences in legal systems and traditions, however, the following findings of the Dutch Supreme Court in Urgenda may have positive implications for Canadian climate litigation:
The Global Nature of Climate Change: Every Reduction Counts
In Urgenda, the Dutch government argued that as the Netherlands is only responsible for 0.5% of global emissions, any emissions reductions it made would have no impact on global climate change and because other countries were not complying with their international commitments, it was pointless for the Netherlands to do so. The Supreme Court rejected these arguments, stating that “the Netherlands is obliged to do ‘its part’ in order to prevent dangerous climate change, even if it is a global problem.” In the Supreme Court’s view, accepting the government’s arguments would be tantamount to allowing a country to easily evade its own responsibility at a time when every GHG emissions reduction counts. Referring to the preamble of the United Nations Framework Convention on Climate Change, which calls for international cooperation, the Supreme Court stressed that mitigation measures will have to be taken by all countries, and all countries will have to do what is necessary to meet their specific responsibilities.
Similar arguments regarding Canada’s “negligible” contribution (less than 2%) to global GHG emissions as a reason not to implement mitigation measures have been raised by Canadian politicians. Canada, like the Netherlands, is a signatory to the Paris Agreement and has pledged to reduce its national GHG emissions by 30% below 2005 levels by 2030 in order to meet the Paris goal of limiting global average temperatures to 1.5°C (or well below 2°C) – which is considered the “safe limit” for global warming. Although the current Liberal government has taken steps to implement mitigation measures, a recent United Nations report concluded that Canada’s current climate policies do not put it on track to meet its 2030 target. As Canadian courts consider the federal government’s climate policies in the upcoming climate cases, the judicial reasoning from Urgenda about the importance of each country’s reductions may play a role; perhaps litigants will find support in arguing that the courts must hold Canada accountable to its international commitments or its “fair share” of the GHG emissions reduction necessary to maintain a stable climate system for future generations.
Consensus on the Threat of Climate Change
Urgenda and the Dutch Government were in agreement about the significant threat climate change poses to the lives, welfare, and living environment of Dutch citizens and people all over the world. On the basis of these agreed facts, the Supreme Court concluded that there is a “genuine threat of dangerous climate change” and that the “lives and welfare of Dutch residents could be seriously jeopardised”. The Dutch government also acknowledge that measures were urgently needed, but it argued that there was no legal basis upon which the court could order it to do so.
Similarly, Canada has acknowledged that GHG emissions pose a serious risk of harm to Canadians (it has even declared a national climate emergency) and that it has a responsibility to take action to minimize negative consequences for future generations. These admissions may provide a basis for the court to take judicial notice of the climate crisis and its detrimental impacts on the environment, communities, and the lives of Canadian residents. Furthermore, they may assist in strengthening the argument that section 7 of the Charter – like Articles 2 and 8 of the ECHR for the Netherlands – imposes a duty on the Canadian government to take reasonable steps to protect against the violations of the rights to life, liberty and security of the person arising from Canada’s GHG emissions.
Political Nature of Climate Policy Does Not Preclude Judicial Intervention
In Urgenda, the Dutch government argued that reduction of GHG emissions is a political issue and, therefore, non-justiciable. The Supreme Court disagreed, finding that while courts cannot order a legislator to create legislation with particular, specific content, they may order the government to take measures to achieve a certain goal. In this case, although the court ordered the Dutch government to reduce its GHG emissions by a specific amount by 2020, the state is free to choose the measures taken and legislation that will have to be enacted to achieve this reduction. Furthermore, in exercising its constitutionally authorized decision-making power, the government and parliament must remain within the limits of the law – including complying with relevant human rights obligations – and courts are permitted to take steps to ensure that it has done so.
In the La Rose case, Canada filed a statement of defence in which it argues (like the Dutch government in Urgenda) that only the executive branches of government may make policy, pass laws, and authorize the allocation of public funds, thereby precluding courts from reviewing government decisions about climate change policy. More recently, the Ontario government filed a motion to dismiss the plaintiff’s application in the Mathur case alleging, among other things, that the issues are not justiciable. Typically, Canadian courts have shown deference to the executive branch of government on policy issues. Given that the failure to take appropriate measures in combatting climate change may result in devastating impacts on legal rights, however, it is arguable that climate change policy is no longer just a political issue.
Conclusion
The future of climate litigation in Canada is incredibly difficult to predict. One thing is certain, however: Canadians are desperately in need of a mechanism to hold their government accountable for permitting (and even encouraging) harmful GHG emissions and for failing to take meaningful action to protect them against the clear and present danger posed by climate change. The consequences of climate change currently, and will increasingly, include violations of the fundamental human rights of all people in Canada, with future generations and the marginalized and/or vulnerable being most at risk. Year after year, Canada has fallen short of its international commitments to reduce GHG emissions, which are responsible for hundreds of thousands of deaths and billions of dollars’ worth of damages annually. When faith in the willingness of politicians to do what science and logic require collapses, our courts become one of the last bastions of hope.
There are a number of valuable lessons to be learned from Urgenda, but only time will tell what implications (if any) they may have on Canadian climate litigation. Regardless of the outcome, the pending climate cases have inherent strategic value in highlighting the devastating impacts of climate on human health and well-being and what scientists have been warning for years – our economic development system is irreversibly harming people and the planet on which life depends. To secure a sustainable and equitable future we need “rapid, far-reaching and unprecedented change in all aspects of society”, including our laws. With any luck, Urgenda may help make 2020 the year that Canadian courts rise to meet this challenge.