New Charter Litigation Seeks Stable Climate System

October 28, 2019

Written By Julia Schatz, Mike Theroux, Laura Gill and Thomas McInerney

Fifteen youth from across the country, through their parents and litigation guardians, have joined forces in a lawsuit against the federal government over climate change, filed Friday in Federal Court in Vancouver. The case, La Rose et al. v. Her Majesty the Queen, is another in a line of thus far unsuccessful attempts by plaintiffs to seek to achieve legislative change through the courts. It is anticipated that this claim, like the many claims that have come before it in the United States and elsewhere, will face significant hurdles, not the least of which is the issue of whether these questions are better left to policy makers.

The plaintiffs are relying on allegations of Charter violations, in particular, their right to life, liberty and security of the person under section 7 and their right to equality under the law in section 15 of the Charter, claiming that they are disproportionately affected by climate change due to their ages. Further, they claim that the federal government is failing to protect essential public trust resources as required under the common law and pursuant to their constitutional obligations. This allegation mirrors the public trust doctrine seen in several complaints south of the border, which doctrine has not to date been found to exist in Canada.

The plaintiffs are seeking declarations that the government is causing, contributing to and allowing GHG emissions that are incompatible with what the plaintiffs call a Stable Climate System, one capable of sustaining human life and liberties. They allege that the government has adopted GHG emission targets inconsistent with restoring a Stable Climate System, has failed to meet its own amended GHG emission targets, and has actively supported the development, expansion and operation of industries and activities involving fossil fuels. While each plaintiff is alleging specific harm caused to them through the effects of climate change – whether it be increased asthmatic attacks, greater exposure to Lyme disease, loss of fish and wildlife habitat, flooding, droughts and wildfires, amongst others – they are not seeking compensatory damages. Rather, the claim calls on Canada to prepare and implement a plan that reduces Canada’s GHG emissions.

Friday's announcement in Vancouver is the latest in a wave of climate change lawsuits against governments at all levels around the world. In Canada, Quebec's Superior Court rejected a proposed class action lawsuit seeking federal action relating to climate change commenced by Environnement Jeunesse, a group purporting to represent all Quebec citizens aged 35 years and under (see Quebec's Superior Court Leaves the Door Open to Canadian Climate Change Litigation). That court disagreed with the findings in many U.S. cases and held that the questions relating to government inaction on climate change raised by Environnement Jeunesse were justiciable, leaving open to a properly constituted class or individual to proceed on these issues. The new BC claim is the only other outstanding purported climate change claim in Canada. Some notable recent cases in the United States on which many of the Canadian claims have been based include:

Sinnok v. Alaska

On October 9, 2019, Alaska's Supreme Court heard arguments in Sinnok v. Alaska, a climate change lawsuit filed by 16 children and young adults ranging from 7 to 22 years old. The plaintiffs challenged the State of Alaska’s climate and energy policies, claiming they violated their rights under the Alaska constitution to a stable climate system. The case was dismissed by an Anchorage Superior Court Judge last year on the basis that the claims presented non-justiciable political questions. A similar climate change lawsuit was dismissed in Alaska in 2014.

Juliana v. United States

A decision is forthcoming in Juliana v. United States, which was filed against the U.S. federal government in 2015. On June 4, 2019 the plaintiffs (a class comprised of 21 people ranging from ages 9 to 21) and the defendants (several U.S. federal agencies and President Trump) appeared before the U.S. Court of Appeals for the Ninth Circuit in Oregon. The plaintiffs are arguing that they have a constitutional right to be protected from climate change. The plaintiffs' claim is also advanced on the basis of the public trust doctrine, which alleges that the government breached duties as a trustee for youth by failing to protect youth from climate change (see "New Stuff" in Climate Change Class Actions).

Urgenda Foundation v. The State of Netherlands

On the international front, the Netherlands’ Supreme Court is poised to render a final decision in Urgenda Foundation v. The State of Netherlands, a case that has drawn a great deal of global interest. In October 2018, the Hague Court of Appeal upheld a ruling that requires the Dutch government to reduce emissions by 25 percent from 1990 levels by 2020. This was regarded as a major victory for climate change litigation worldwide. The Dutch government appealed the decision in January 2019 and arguments were heard before the Supreme Court on May 24, 2019. A decision is pending.

Looking Forward

Likely the biggest hurdle the plaintiffs in La Rose et al. v. Her Majesty the Queen will need to overcome is the argument that the allegations in the claim raise non-justiciable issues (i.e., issues that are not appropriate for judicial determination due to their political nature). Despite the ruling of the Quebec Superior Court in Environnement Jeunesse that the alleged violations of Charter rights raised in that case were justiciable, it is unclear whether other Canadian courts will follow the precedent set by the Quebec court in subsequent climate change litigation. In addition, the La Rose claim appears to be asking the courts to adopt a public trust doctrine, which has not been accepted in Canada to date. Although the La Rose claim has just begun, the outcome of the suit may have significant implications for other potential climate change related actions going forward.

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