Climate change litigation on the rise; will a landmark Canadian law help courts force real change?

By Rachel Morgan – Local Journalism Initiative Reporter
Aug 07, 2023
– Brampton, Mississauga, Niagara

When the case of seven youth who took the Ontario government to court over its failure to address the climate crisis was dismissed in April by the Superior Court of Justice, it seemed like the judge wanted a different outcome from the verdict she rendered. 

But her hands were tied.

The case was dismissed on the grounds the PCs’ altering of climate legislation in 2018—the Cap and Trade Cancellation Act passed by Doug Ford’s government dramatically weakened the province’s emission reduction targets—did not rise to the level of a Charter violation. 

But Justice Marie-Andrée Vermette harshly criticized the Ford PC government, offering a stinging condemnation of its handling of the climate crisis. 

“Based on the evidence before me, it is indisputable that, as a result of climate change, the Applicants and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person. However, this is not the relevant question in this case,” Justice Vermette wrote in her decision.

She also ruled the case was justiciable, meaning it was indeed subject to a full trial, a standard other cases at the federal level had failed to reach.

She agreed with many of the claims made by the youth and their lawyers from Ecojustice, such as the severity of the climate crisis, the flimsy nature of the PCs’ emissions reductions targets, the reliability of the Intergovernmental Panel on Climate Change (IPCC) reports and the use of untrustworthy evidence from a known climate change denier by the Ontario government. 

Justice Vermette also rejected the PC government claim that the emission target set by the previous Liberal provincial government was “meaningless”—an assertion that supports what environmental organizations across the province have stated for years: that the Ford PCs do not take the climate crisis seriously. 

“I am not prepared to accept that a legislative requirement, or that something that is required by law to be approved by the Lieutenant Governor in Council, is meaningless. The setting of the Target was a state action taken pursuant to a statute,” she wrote. “As a target, it is meant to guide and direct subsequent state actions with respect to the reduction of GHG in Ontario. The requirements for publicity and progress reports also contradict the suggestion that the Target and the Plan are meaningless.”

Despite the recognition of the seriousness of the claims brought forward as part of the case, Justice Vermette decided not to rule that the Ontario government’s disgraceful actions around emissions reduction amounted to a violation of the current legal rights afforded to Canadians under our laws.

“In the absence of a constitutional right that requires the government to act in the first place, there can be no constitutional right to the continuation of measures voluntarily taken, even where those measures accord with or enhance Charter values,” she wrote. 

Justice Vermette clearly found the PC government’s actions to be harmful, acknowledging the link to severe consequences, and harshly criticizing the PCs’ stripped down climate policies. But she simply could not find any existing law that made clear the government’s requirement to continue policies that had previously been enacted to protect residents from the effects of climate change.

The Mathur trial, as it came to be known, now serves as a landmark case bringing together seven youth plaintiffs from across Ontario who believe the lack of government action to combat the climate crisis puts their future wellbeing at risk. 

The trial was also part of a major global trend.

 

The seven youth plaintiffs in the Mathur case along with their lawyers from Ecojustice. 

(Shay Markowitz/Ecojustice)

 

There has been a dramatic rise in the number of cases forcing governments and corporations to court over climate justice, according to a new report from the United Nations Environment Programme and the Sabin Centre for Climate Change Law at Columbia University. Legal precedents could put an end to environmentally harmful behaviour by bad actors. 

Now, a landmark piece of legislation could be just what Justice Marie-Andrée Vermette, and other judges like her, need to reach different outcomes in court, new decisions that might mark the beginning of the end for those bad actors.

The passage of Bill S-5, which received royal assent on June 13, provides promise not only for continuing the environmental justice movement, but for fighting climate litigation across the nation. The Bill makes significant changes to the Canadian Environmental Protection Act for the first time since 1999, establishing that every Canadian has the right to a healthy environment. 

“Passage of Bill S-5 marks a major milestone for environmental rights in Canada, inscribing the right to a healthy environment in the Canadian Environmental Protection Act (CEPA),” Lisa Gue, National Policy Manager for the David Suzuki Foundation said in a press release. “Now the work begins to protect that right and uphold the principle of environmental justice.”

There is hope that the Bill will provide a baseline for future climate litigation. A year after the right was recognized internationally, Canada has now inscribed the same right to a healthy environment into federal law. In 2019, 15 youth filed a lawsuit against the federal government arguing the violation of Charter rights of young Canadians by failing to protect them from the potentially dangerous effects of climate change. The judge initially dismissed the case stating it was “plain and obvious” the case would fail. In 2020, the case was dismissed again on the basis of justiciability and the overly broad nature of the complaint. The case is currently awaiting a decision at the Court of Appeal. Bill S-5 provides a promise that these cases may have a legal basis in the increasingly valued right to a healthy environment. 

There is some concern amongst environmental groups that the changes under the Bill do not go far enough. CEPA has “citizen enforcement” provisions that are intended to enable Canadians to hold polluters accountable for violations of the Act. However, significant barriers and legal costs exist making it a rarely used avenue under the legislation. 

“While we welcome passage of the bill, we note that MPs rejected many amendments that would have further strengthened it,” environmental law grop Ecojustice noted in a press release. “There is more to do to complete the process of CEPA modernization, including removing barriers to citizen lawsuits when there are violations of the Act, action on air quality, labelling of hazardous substances in consumer products, and strengthening control of genetically engineered animals.”

But the changes to CEPA are significant for all Canadian litigation. In Canada, the doctrine of paramountcy states that, when conflicted, federal law supersedes provincial law, so the Bill could carry weight for lawsuits raised against provincial governments and polluting companies who hold themselves to lower standards.

It could open the floodgates for a movement already gaining momentum.

Since the publication of the first report of its kind in 2017, climate litigation has more than doubled, increasing from 884 cases that year to 2,180 in 2022, a 147 percent jump in five years. The publication of the Global Climate Litigation Review 2023 Status Report marks the one year anniversary of the United Nations General Assembly’s declaration of the universal right to a clean and healthy environment. Following this declaration, in November 2022, the UN Human Rights Committee delivered a landmark decision, finding for the first time that a country was violating international human rights law through climate policy and inaction. The Human Rights Committee concluded that the government of Australia was violating human rights obligations to the Indigenous Torres Strait Islanders for failure to act appropriately on climate change. 

In the year since the declaration, citizens from across the globe have been fighting for the same right to be recognized and upheld by national and sub-national governments.

When Ford was elected premier in 2018, some of the plaintiffs in the Mathur case were young children, about to feel the full impacts of provincial legislation that ended more than 700 clean energy projects, terminated the electric vehicle subsidy, stripped away authority from conservation authorities and stepped up investments in carbon-based electricity production, reversing decades of progress by previous governments.

The severity of the climate crisis today has brought the youth’s legal action into sharp focus. 

The Mathur case highlighted the PCs’ Cap and Trade Cancellation Act which severely weakened the targets set by the former Liberal government. The Act also does not fall in line with standards set by most jurisdictions committed to emission reduction worldwide. 

The case brought forward by the seven youths was the prodigy of one in the Netherlands that achieved novel success. The Urgenda case brought together 900 Dutch citizens suing the government over climate legislation. The 2019 case was the first time a court found a government to be responsible for mitigating greenhouse gas emissions. The court ruled that the government must create stronger emissions reductions targets, from 17 percent below 1990 levels to 25 percent below 1990 levels by 2020 — a goal the nation reached. The decision spurred hope for many other cases globally, but success is still slow. 

 

The PC government under Premier Doug Ford has made an aggressive push for new highways in Ontario, compromising greenhouse gas emission reduction targets made by all levels of government. 

(Flickr) 

 

“Climate litigation represents a frontier solution to change the dynamics of this fight,” the joint report states. “As this report shows, people are increasingly turning to the courts to combat the climate crisis. Governments and private sector entities are being increasingly challenged and held to account.”

The report uses the Sabin Centre definition for climate litigation which includes any case that has a material issue or law rooted in climate change. Dr. Maria Antonia Tigre, a senior fellow in global climate change litigation at the Sabin Centre, said cases that could have an effect on climate, like air pollution or deforestation, but aren’t rooted in a fact or law, are not included in the study.

Citizens are increasingly turning to the courts, Tigre said, because other forms of climate action are not sufficient. While thousands march in the streets demanding an end to fossil fuel subsidies and strengthened emissions reductions targets, it is falling on the deaf ears of governments sticking to the status quo. But as the severity of the climate crisis intensifies — scientists are warning that every tenth of a degree of additional warming will escalate threats to people and ecosystems and Earth has already warmed an average of 1.1 degrees — sticking to the status quo cannot be tolerated. Many hope the courts will begin to see it the same way. 

The consequences of climate change are undeniable. There is not a single spot on the planet that is untouched by the impacts of anthropogenic climate change. 

Meanwhile, many leaders are doing little to right the wrongs committed by companies, governments and the general public, oblivious or unconcerned about their actions. In the past decade, Canada under the Liberal Justin Trudeau government has not met a single one of its climate commitments, and there is no authoritative body to hold the government accountable for that. Climate activists are turning to the courts to force politicians and the governments they run to change their ways, under the threat of legal orders.

Even if nations held true to their commitments, Tigre said that generally they are too weak to prevent two-degrees of warming, the upset-limit under the 2016 Paris Agreement. 

“I think climate litigation has increased with this goal of actually getting some states to reduce emissions further,” she said. “That depends on the types of cases, but thinking about those systemic cases, that’s really the key idea behind it.”

The UNEP report outlines a variety of cases, the majority of which fit into three categories: cases against the government, cases against corporations and cases against activists. Cases against the government are what Tigre refers to as the “systemic cases”. They have the ability to dramatically alter government action in the form of emissions reductions or other climate targets. Corporate cases, on the other hand, foster more gradual change that can contribute to the growing notion of the responsibility of large corporations in the matter of the climate crisis.

In 2022, the Hague District Court in the Netherlands, found that the oil and gas company Shell had a responsibility to mitigate greenhouse gas emissions. The ruling marks the first time a private company was ordered to comply with the Paris Agreement — the court ordered Shell to reduce carbon emissions associated with its products by 45 percent below 2019 levels by 2030. 

“The court grounded its decision in climate-related human rights responsibilities and tort-based duties, including those related to corporate due diligence, and on an unwritten standard of care based on the goals of the Paris Agreement and the United Nations Guiding Principles on Business and Human Rights,” the report states. While the decision was a groundbreaking success for climate activists, Shell filed to appeal the decision. The appeal is currently under review.

While it is unknown how the near future will pan out with climate litigation, Tigre is skeptical that we will see sweeping change resulting from one major decision as has been seen in other court matters such as Roe v. Wade, in reference to women’s rights, or Brown v. the Board of Education, in reference to civil rights. She said the broader environmental justice movement does have similarities to these historic movements “because it induces that shift in human rights perceptions.”

“There is this linear push towards recognition of said rights that, 20 years ago, were not as widely recognized,” she said. However, she likened climate litigation more specifically to what happened with tobacco legislation and asbestos legislation alike. The history of tobacco control in Canada has seen three decades of small but mighty legislative changes that have evolved into the legal standards we have today. In the instance of climate litigation, it is likely we will see decisions begin to unfold in the favour of plaintiffs that start to build a precedent of holding polluting actors accountable that future cases can build off of.

But climate change is a global threat and while it impacts everyone on the globe, that impact is not evenly distributed. Indigenous peoples, people of colour, low income earners, women and children are disproportionately experiencing the consequences of a warming world but, as minority groups, they have also historically had less of a voice to stand up for their rights, including that to a healthy environment.

“There’s still only a few dozen cases that actually go to the root of this climate justice problem … In particular, because I don’t think we’re quite there yet,” Tigre said. “They don’t really engage with those types of disparities, and they don’t make a lot of use of the argument of integral inequalities.”

The large majority of the climate litigation cases captured by the joint study are from the United States (70 percent in 2022). However, the proportion of cases that come from outside the United States is increasing (26 percent in 2017 to 30 percent in 2022). Overall, countries located outside the United States have seen a 186 percent increase in cases, or 428 more cases, in the five years between the original report and the 2023 report. 

The report uses the terminology of Global North and Global South to represent the distribution of cases in developed versus developing nations — despite some contestation that the terms are not representative. Of the nations under the umbrella term of Global South, Brazil is home to the most climate litigation cases represented in this study (30 cases) — in comparison, Canada has 34 cases. Brazil has been facing high amounts of deforestation of the Amazon rainforest which has caught the attention of activists on the global scale. In 2021, a communication was filed to the Office of the Prosecutor of the International Criminal Court requesting an investigation into the former President of Brazil for his participation in crimes against humanity resulting from widespread deforestation of the Amazon rainforest. The communication argued that the Amazon is pertinent for global climate security and that acts of deforestation have turned the critical biome from a major carbon sink into a source. If an investigation ensues, it will be the first of its kind relating to crimes against humanity based in environmental harm.

The study highlights barriers to filing climate suits that include a country’s legal culture, the extent of the physical damage of climate change, and the existence of regulatory frameworks and judicial precedent. Asia and Africa have the lowest representation, at 6.6 percent and 2.3 percent of global cases respectively. 

But even nations in the Global North face biases that play a part in climate activism and litigation. There have been various studies that suggest women are more concerned about climate change than men — often attributed to personality characteristics. A study under the Yale program on Climate Change Communication also found that non-white individuals are more concerned about climate change than their white neighbours, when viewing their attitudes collectively. People who do not identify as white are also more likely to lean left politically, toward parties that have historically had stronger climate priorities. 

“A lot of people refer to climate change as a neocolonialist problem as well, because in addition to all of those inequalities within one’s own judicial system, which can be very obviously problematic, there are those north south disparities,” Tigre said.

A study on the diversity of the Canadian judicial system from Toronto Metropolitan University found that in 2017, only 8.54 percent of Provincial Court judges in Toronto belonged to a racial minority despite 49 percent of the population of the city belonging to a visible minority group at the time. Even more concerning, only 4.6 percent of Superior Court judges in the city represented racialized minorities. Women also made up just slightly more than 40 percent of both the Provincial Court and Superior Court, despite making up 52 percent of the population of Toronto. 

“This issue of separation of powers is often one of those [barriers to action] and really relates to this notion that courts cannot meddle in certain topics,” Tigre said. “But obviously, climate change is such an unprecedented problem that some of these big notions that we’ve had for such a long time need to be reshuffled a little bit.”

Those minority groups are increasingly challenging a system that is stacked against them. Activists in Canada are increasingly building up the climate justice movement focussing specifically on environmental racism, or the disproportionate effects of polluting industries on minority populations. 

“There’s a tendency for government and industry to cite or locate industrial facilities or other environmentally hazardous projects like pipelines and dumps and landfills and incinerators, in Canada, primarily in Indigenous communities but also in other racialized communities,” Ingrid Waldron, a professor at McMaster University, previously told The Pointer. She has been instrumental in the fight against environmental racism, first in Nova Scotia and now nationwide and is co-director of the Canadian Coalition for Environmental and Climate Justice (CCECJ) and founder of the Environmental Noxiousness, Racial Inequities and Community Health (ENRICH) project.

There have been numerous cases of non-white advocates fighting back against the placement of these industries in areas that harm marginalized communities, but due to the lack of environmental legislation in Canada, the courts have done little to change harmful practices. 

The passage of Bill S-5, binding governments and corporations to the legal requirement to protect Canadians from environmental harm, could change this.

Tigre said she sees the push for climate litigation continuing to rise as the world grapples with increased atmospheric consequences of climate change on the natural world and human safety. While other forms of activism are still important, litigation could force a scale of change not yet seen in the climate fight. 

“I think litigation has a more linear path,” she said, “because some of the legal responsibilities are already defined.”

 

 


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