Transcript Climate Change Litigation in Canada

Climate Change Litigation in Canada
Hugh Wilkins, LLM
Staff Lawyer
Ecojustice Canada
About Ecojustice
• Ecojustice is Canada’s largest non-profit environmental
law organization
• We defend and help enforce Canadian environmental
laws
• We scrutinize law-makers, expose law-breakers and
take the culprits to court
• We win ground-breaking lawsuits that set lasting
precedents for future generations
• When the law doesn’t go far enough, we find solutions to
make it stronger
Introduction
• most of the current climate change litigation is the product
of failed national policy responses to the issue
• climate change litigation acts to compel stronger
government and private sector action to address climate
change issues and to draw political and corporate
attention to the issues at stake
• growing number of claims being contemplated and filed in
both international and domestic fora
Possible Claims in International Fora
• General Principles of International Law
 International Court of Justice
• UNCLOS and Fish Stocks Agreement
 ITLOS proceedings
 ICJ proceedings
• World Trade Organization
 EU position
• Human Rights
 Inter-American Commission on Human Rights
• UNFCCC Compliance Committee
Possible Claims in Domestic Fora
• Suits Against Private Entities
• Suits against Government to Ensure Consideration of
Climate Change Issues in Decision making
• Suits against Government for Acts or Omissions relating
to GHG Emissions
Suits Against Private Entities
• possible claims in nuisance, negligence, director’s liability,
product liability, civil conspiracy, concert of action
• key issues
 standing
 causation
 redressability
Suits Against Private Entities (continued)
• Native Village of Kivalina v. ExxonMobil et al.
• California v. General Motors Corp, et al.
• Connecticut v. American Electric Power
• Comer v. Nationwide Mutual Insurance
• Northwest Environmental Defense Center v Owens Corning
Suits against Government to Ensure Consideration of
Climate Change Issues in Decision making
•
mostly Environmental Impact Assessment cases
•
key issues
 inclusion of impacts of climate change in the
assessment
 ‘significant environmental harm’
Suits against Government to Ensure Consideration of
Climate Change Issues in Decision making (continued)
• Pembina Institute, et al v. Imperial Oil
• Center for Biological Diversity v. NHTSA
• Friends of the Earth v. Watson
• Mayo Foundation v. Surface Transportation Board
• Border Power Plant Working Group v. Department of Energy
• Australian Conservation Foundation v. Latrobe City Council
• Gray v. The Minister for Planning
Suits against Government for Acts or Omissions
relating to GHG Emissions
• generally cases in which government has a binding
obligation to act but failed to do so
• includes human rights cases, freedom of information and
rule of law cases
• key issues
 standing
 justiciability
 statutory interpretation
Suits against Government for Acts or Omissions
relating to GHG Emissions (continued)
• Friends of the Earth v. Minister of Environment
• Friends of the Earth v. Her Majesty the Queen, et al.
• Massachusetts v. EPA
• Coke Oven Environmental Task Force v. EPA
• Centre for Biological Diversity v. Brennan
• Korsinsky v. EPA
• Inuit Circumpolar Conference v. US
• BUND (Friends of the Earth) v. Euler Hermes AG
• Citizens for Responsibility and Ethics in Washington
v. Council on Environmental Quality
Case Study: Friends of the Earth v. Minister of
Environment
• the Kyoto Protocol Implementation Act (‘KPIA’) was
introduced to the House of Commons as a Private Member’s
Bill on May 17, 2006, by Pablo Rodriguez, a Liberal Member of
Parliament
• the Government did not support the bill, but it passed third
reading in February 2007 and was given Royal Assent on
June 22, 2007 with the combined votes of the opposition
parties in both the House and Senate
Case Study: Friends of the Earth v. Minister of
Environment
• the purpose of the KPIA, as set out in its section 3, is:
“to ensure that Canada takes effective and timely
action to meet its obligations under the Kyoto
Protocol and help address the problem of global climate
change”
Case Study: Friends of the Earth v. Minister of
Environment (continued)
• the KPIA sets mandatory actions and deadlines for the
government to take action to address climate change:
 required the Government to prepare and publicly
release a climate change plan setting out specific
measures to be taken to ensure that Canada meets its
obligations under the Kyoto Protocol
 required the Government to prepare draft regulations
and hold public consultations
 required the Government to enact final regulations
Case Study: Friends of the Earth v. Minister of
Environment (continued)
• on August 21, 2007, the Minister of Environment released a
document entitled A Climate Change Plan for the Purposes of
the Kyoto Protocol Implementation Act 2007 (‘Minister’s Plan’)
• the Minister’s Plan consists of a compilation of previously
proposed Government measures which will not meet
Canada’s Kyoto commitments
Case Study: Friends of the Earth v. Minister of
Environment (continued)
• these proposed measures would leave Canada well out of
compliance with Article 3.1 of the Kyoto Protocol
• the Minister’s Plan states that the Government's greenhouse
gas emission reduction targets will be based on a 2006
baseline (which is roughly 25% higher than the Protocol's
1990 baseline)
• the Plan also uses intensity targets rather than absolute
emission targets
• under these targets Canada will not reach the emission
reductions required under the Protocol until after 2020
Case Study: Friends of the Earth v. Minister of
Environment (continued)
• Minister’s Plan was assessed by the Government's National
Round Table on the Environment and the Economy
("NRTEE")
• NRTEE found that statements and information in the
Minister’s Plan indicate that the Federal Government "is not
pursuing a policy objective of meeting the Kyoto Protocol
emissions reductions targets" and that the "stated emissions
reductions set out in the Plan would not be sufficient for
Canada to comply with the Kyoto Protocol"
Case Study: Friends of the Earth v. Minister of
Environment (continued)
• NRTEE concluded that based on the measures set out in
the Minister’s Plan, Canadian greenhouse gas emissions
would "exceed their allowable units by 34%, with average
excess emissions of 192.2 Mt/year"
Case Study: Friends of the Earth v. Minister of
Environment (continued)
• Government also failed to the meet the KPIA’s deadlines for
preparing draft regulations, holding public consultations or
subsequently enacting regulations
Case Study: Friends of the Earth v. Minister of
Environment (continued)
• the case raises the fundamental question of whether a
Minister of Government has the authority to directly
contravene mandatory statutory obligations
• alleges that the Minister of Environment has defied the will
of Parliament and dispensed with the rule of law by refusing
to comply with the mandatory requirements of the KPIA
Case Study: Friends of the Earth v. Minister of
Environment (continued)
• the case was argued before the Federal Court in June
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Case Study: Friends of the Earth v. Minister of
Environment (continued)
• the government did not mention that the KPIA also
includes provisions requiring public consultation on the
Minister’s Climate Change Plan and public consultations
on the draft regulations and publication of the statements
and reports required under the Act as well
Case Study: Friends of the Earth v. Minister of
Environment (continued)
• the decision of the Court is expected at any time now
Thank you for your
attention.
For more information, please visit
ecojustice.ca