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Will courts force governments to fight climate change? | David Israelson

Monday, December 14, 2020 @ 10:39 AM | By David Israelson

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David Israelson %>
David Israelson
In a year with so much difficult global news, perhaps we should be encouraged by the efforts of Canada and some other governments to hold themselves accountable for doing something about the worldwide climate emergency.

Only a little encouraged though.

Canada and others have been introducing new “accountability” legislation and other measures related to climate change. These bills are supposed to make governments legally responsible for meeting the greenhouse gas (GHG) emission reduction targets they promise.

In the case of Ottawa’s Canadian Net-Zero Emissions Accountability Act tabled Nov. 19, if something goes wrong and we don’t meet the targets, the government will be required to report to Parliament on what happened and what’s being done to fix it.

That’s a bit of progress. The details of this and similar bills in other jurisdictions tell a more complicated story about who exactly will be holding the bag if greenhouse gas reduction targets are not met.

Canada has no shortage of promises made over the years to reach targets to reduce our greenhouse gas emissions. On Dec. 12, Prime Minister Justin Trudeau delivered our latest commitment — virtually, in the circumstances — to an online “climate ambition” summit held by the United Nations, Britain and France.

The summit was convened as a placeholder, because of COVID-19, instead of a live UN gathering that had been planned for last month. In his message, the prime minister said that Canada is raising its “ambitions” for emission reductions between now and 2030. Note that word.

“In partnership with provinces and territories we as a country will strive for a range [of reductions] at the upper end of 32 to 40 per cent of 2005 levels by 2030,” Trudeau said.

To be fair, on Dec. 11, federal Environment Minister Jonathan Wilkinson said that the price for emitting a tonne of carbon, now a nearly symbolic $10 per tonne, will rise by $15 per tonne each year from 2022 to 2030.

That will make carbon pricing — a carbon tax if you will — $170 by the beginning of the next decade. The Ecofiscal Commission, a respected environmental think tank, said last year that a price of $210 per tonne by 2030 would be more effective. Ottawa’s $170 target is at least getting close.

It would be good for the environment if a carbon price and other measures become part of a legal framework that makes everyone pay for emitting greenhouse gases. Laws and regulations can encourage conservation, energy efficiency and cleanup; pricing pollution is one tool to encourage everyone to pollute less.

But what if we say we’re going to do all this and then we don’t?

Governments in Canada have a growing history of setting climate reduction targets — which we’re now calling “ambitions” — and then saying, “Woops!”

It’s still an open question whether governments in Canada can be held legally accountable for the environmental promises they make but fail to keep. In other countries, environmental activists have been taking governments to court and sometimes winning.

For example, a year ago, the Supreme Court in the Netherlands told the Dutch government it has to cut that country’s greenhouse gas emissions by 25 per cent from 1990 levels by the end of this year. The Dutch case, The Netherlands vs. Urgenda, was framed as a human rights case — the right to demand that governments act on climate change.

In this pandemic year, it’s not certain whether the Netherlands can meet the court-ordered target, but the case did push the Dutch government to try harder. In April, it announced a three billion euro ($4.6 billion) program that seeks to cut coal-fired power emissions, limit livestock herds, plant more forests and lower speed limits.

There are now some 1,500 climate-related lawsuits snaking through various courts — including some that seek to hold governments to account for their promises. In Britain this year, a court put the brakes on the British government’s plans to expand Heathrow Airport because the plans didn’t consider the nation’s climate commitments. The Economist predicts that around the world, “the legal risks will only grow over time.”

It’s a reasonable prediction. This year in Canada there have been at least four climate change cases, raising questions ranging from whether climate action is required under the Canadian Charter of Rights and Freedoms to whether it’s the court’s business to butt into what some would say are political promises.

One of the most prominent cases, La Rose v. Canada 2020 FC 1008, was brought by 15 young people who said their rights are violated by the federal government’s failure to meet previous climate targets. True, Federal Court Justice Michael Manson rejected the claim this fall, but the plaintiffs say they’re planning to appeal to the Supreme Court of Canada.

On the surface of the law, good luck — there is nothing explicit in the Charter about environmental rights. But jurisprudence is a living tree, and the issue of whether governments will be held legally accountable for their climate change commitments may evolve in ways that strict legal constructionists may not anticipate — or like.

The climate issue has already deepened from climate “change” to a climate “crisis” or “emergency,” and the heightened apprehension of what’s happening to the planet is getting recognized formally by more and more governments at all levels, including the federal government.

Parliament voted to call it an emergency in a non-binding resolution last year, but as floods, fires, fierce storms and mayhem increase, watch for legal pressure to increase on governments to not only make promises on the environment, but to keep them.

Unfortunately, some provincial governments aren’t there yet. For instance, Ontario’s anti-environmental government is still joining with Alberta and Saskatchewan to pursue a boneheaded battle against carbon pricing up to the Supreme Court.

On the other hand, the new federal measures announced Dec. 11 may put teeth into the climate “ambitions” our leaders keep declaring and punting into the future.

Perhaps it’s a recognition that instead of taking court action on climate change, we’re better off actually taking action. 

David Israelson is a non-practising lawyer, author, journalist and communications consultant. You can follow him on Twitter @davidisraelson or on Linkedin.  

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