Canadian and Foreign Climate Litigation Survey


Canadian and Foreign Climate Litigation Survey

Canadian courts are hearing climate litigation across various legal areas. Foreign courts have already confronted several similar cases. Canada’s courts (like its governments) have been relative laggards on climate positive decisions. This lukewarm record is likely to change, as climate change’s negative impacts intensify. Further future litigation will respond to try to accelerate government climate mitigation and adaptation efforts.

Recently, foreign courts have compelled government climate action and many more plaintiffs continue to seek greater government and corporate climate accountability. The Dutch Supreme Court held that national greenhouse gas (“GHG”) reduction target, and results toward achieving that target, were insufficient to meet both international obligations and the scientifically backed reduction levels (Canada’s current 2030 target similarly fails to meet these levels). That failure violated constitutionally protected rights to life and private and family life under European law (Canada’s Charter section 7 rights are similar). The Irish Supreme Court held that its national climate mitigation plan was insufficiently specific on short term climate goals to reach Ireland’s 2050 goals and quashed the plan. The Court of Appeal for England and Wales, rejected an environmental assessment approval of a third runway at Heathrow Airport, due to the failure to consider international obligations under the Paris Agreement of 2015 and the precautionary principle required by other international treaties. Courts in Australia and South Africa have also rejected environmental approvals of new coal projects, where climate change was not adequately considered by decision-makers.

Canadian climate litigation is equally diverse. The Supreme Court of Canada has reserved judgment on appeals of several carbon pricing references, on whether the federal legislation is onside of constitutional division of powers. Lower appellate courts have split on this question, with Saskatchewan’s and Ontario’s courts upholding the current legislation and Alberta’s reaching the opposite conclusion. A recent Ontario Superior Court decision also found legislation imposing mandatory stickers at gas pumps, negatively discussing carbon pricing, violates Charter expression rights.

Other cases also seek to use Charter rights, with limited success so far. The Federal Court recently found that several youths’ claims, that Canada’s collective actions and inaction on climate change violate Charter sections 7 (life, liberty, and security of the person) and 15 (equality) rights, were non-justiciable as the government conduct impugned and remedies sought were too broad and imprecise, thus encroaching on Canada’s general policy-making functions. These echo past Canadian climate litigation decisions finding that the federal government’s failure to adhere with Kyoto Protocol compliance legislation and subsequent withdrawal from the Protocol were similarly non-justiciable. A recent Quebec Superior Court decision found a similar claim, which only challenged Canada’s insufficient national climate targets (like the Dutch approach), was justiciable, at least for the purposes of a class action certification. That Court, however, did not ultimately certify that action for procedural reasons. Another related Charter claim, which impugns the Ontario government’s reversal of its past more ambitious GHG reduction target, is reserved in Ontario, where a Court has previously rejected a challenge to the province’s cancellation of its cap-and-trade carbon mitigation scheme, based on breach of statute. A fourth Charter claim (brought by Indigenous persons) seeks the added relief of legislative modifications to allow the cancellation of high emitting energy projects. Like abroad, individuals have also sought (though unsuccessfully) to use climate arguments in challenges to individual projects, which have both failed to overturn regulatory approval of the controversial Trans Mountain pipeline or excuse protestors of that project from contempt charges.

Undoubtedly, climate litigation is heating up globally and will continue to be a hot button issue also confronting Canadian courts as long as the climate crisis persists. I recommend several resources to keep track of the climate litigation temperature on an ongoing basis.