Summary: In this article, Angela Dittrich and David McRobert review the keynote presentation made by Dr. Dianne Saxe to the OBA’s Environmental Law Mentorship Session on June 29, 2021. Dr. Saxe presented a brief summary of the scientific evidence supporting human-caused climate change and argued that the moral case for the courts taking action on climate change now has been made. She then turned to a survey of some of the climate litigation to date, noting there are 1800 climate lawsuits on the books [1] and these have attempted to block bad projects (e.g. such as refinery, highway or airport expansions) to those related to non-disclosure of GHG impacts or misrepresentation of impacts associated with oil and gas development. This was followed by a survey of recent key successful cases and their implications. Finally, Dr. Saxe graciously fielded a number of questions from the chair and principal organizer of the Mentorship session, Joanna Rosenfeld, and audience members.
By Angela Dittrich [2] and David McRobert [3]
Introduction
The overwhelming scientific evidence supporting human-caused climate change has been present for decades, but successful climate litigation has remained a challenge. What does the future of climate litigation look like? How can the climate crisis be effectively addressed and mitigated through climate litigation? Dr. Dianne Saxe explored the current and future landscape of climate litigation in her keynote presentation.
Climate Change and Environmental Law: Where are We Heading?
Dr. Saxe began by explaining that “law always starts with a moral case, and when it comes to climate change, the moral case is becoming increasingly clear.” She argues that the impacts of the climate crisis carry severe foreseeable damages and urgent financial demands, yet government response has remained largely inadequate. At the 1992 UN Rio Convention, all countries agreed that keeping the global temperature increase below 2oC is imperative for human survival. At the 2015 Paris Climate Change Conference, all countries agreed that the global temperature rise must be kept well below 2oC (as close as possible to 1.5oC) by 2100. For many countries, these repeated commitments have not been upheld, and it is plausible that the global temperature rise may now reach 3.6oC by the end of the century. The global ‘fever’ resulting from greenhouse gas emissions will have disastrous and widespread impacts, many of which we are already beginning to witness. Extreme weather events, such as floods, fires, droughts, windstorms, and heatwaves, are now a matter of when, not if. This temperature rise does not constitute a “new normal”, but rather places the concept of normal in the rear-view mirror, disappearing at an accelerated rate.
Climate-related weather events also result in monumental financial damages. In 2020, approximately $210 billion USD was lost globally from natural disasters; in comparison, asbestos-related litigations totalled approximately $100 billion. The cause of these impacts is clear – 70% of climate damages can be attributed to a small number of carbon majors. Rather than trying to address the damages done and mitigate future impacts, many of these companies have dirty hands, lobby to buy influence and access, and actively run campaigns of disinformation, doubt, confusion, and delay, all while earning substantial profits. These strategies have also been utilized by the tobacco industry, though this is no coincidence. The connections between the tobacco and oil industries are deep-rooted, [4] with both tobacco and oil firms using the same research institutes, researchers, and PR firms since the 1950s. [5] The fossil fuel industry has been known to utilize the infamous ‘tobacco industry playbook’, however, research from the Center for International Environmental Law suggests the playbook originated within the oil industry itself. [6] In the case of the tobacco industry, the courts were more willing to look at the morality of tobacco companies’ conduct when cigarette use in general population began to decline and medical evidence related the hazards of the product began to grow. The scientific basis of the litigation and the understanding of potential health impacts did not change significantly between the early 1960s and the eventual successful court litigation against tobacco companies. [7]
While there has been a positive shift towards renewable energy sources and decarbonisation in the past decade, climate litigation cannot (and will not) wait for the inevitable day when fossil fuels are rendered obsolete. The generations that will be impacted by the climate crisis no longer reside in the distant future; the children and younger generations on Earth today are plausible living plaintiffs in climate litigation cases and will be forced to face the consequences of a crisis to which they did not significantly contribute. Corporate and government climate defendants rarely come to court with clean hands. Governments have continued to make lofty declarations while kicking the ‘climate change can’ down the road for the next government to address, and fossil fuel industry lobbying has acted as the single greatest barrier to climate action in Canada. [8]
Dr. Saxe noted that more than 1800 climate lawsuits have been launched to date, [9] from those blocking bad projects (e.g. such as refinery, highway or airport expansions) to those related to non-disclosure of GHG impacts or misrepresentation of impacts associated with oil and gas development. Saxe contends that the causation of climate impacts is becoming clearer, and event attribution is improving. There have been powerful demands for loss and damage compensation, while the force majeure argument is losing strength. The “natural disasters” resulting in damages are no longer natural; it is clear that this damage is caused by human activity, namely corporate activity that provides companies with substantial profits in the process. It is worth remembering that there are many levels of ‘winning’ a case – lawsuits create room for political action, normalize the conversation, can lead to obtaining important government data, and create important negotiation opportunities. The court doors are now open to climate litigation, [10] with several cases and success stories from around the world.
Highlights from key climate litigation cases, with a focus on recent cases
Urgenda Foundation v. State of the Netherlands [11]
This was the first case where a Supreme Court agreed to take ownership of the issue of climate change. The Dutch government had signed international commitments but was not taking adequate action to meet these emissions targets. The Urgenda Foundation and 900 Dutch citizens brought forth this lawsuit in December 2019, arguing that the government must do more to address climate change. The Supreme Court upheld the initial ruling ordering the Dutch state to reduce GHG emissions, and stated that the government has binding legal obligations to reduce emissions based on international human rights law. This ruling has inspired climate litigation cases around the world, such as Neubauer, et al. v. Germany and VZW Klimaatzaak v. Kingdom of Belgium & Others (see below).
Friends of the Irish Environment v. Ireland [12]
The Government of Ireland had signed climate declarations and created a National Mitigation Plan in 2017 which outlines the transition to a low-carbon economy by 2050. The Friends of the Irish Environment argued that this plan violated the Constitution, the Climate Action and Low Carbon Development Act 2015, and human rights obligations. In July 2020, the Supreme Court ruled that the National Mitigation Plan is grossly inadequate and is not sufficiently specific. This ruling made clear that the Irish Government is actually obliged to keep its international climate commitments.
L’affaire du siècle (Notre Affaire à Tous and Others v. France) [13]
In March 2019, four French non-profits (Greenpeace France, the Fondation pour la Nature et l’Homme, Oxfam France, and Notre Affaire à Tous) initiated a lawsuit against the State of France for inadequate climate action. In February 2021, the Administrative Court of Paris ruled the State of France’s failure to reduce short-term GHG emissions is causing environmental harm and is therefore unlawful. The French government was ordered to disclose what actions were being taken to meet its climate targets but deferred the decision to issue an injunction. The plaintiffs were rewarded the requested symbolic sum of one euro for moral prejudice.
Neubauer, et al. v. Germany [14]
In February 2020, a group of German youth argued that Germany’s Federal Climate Protection Act sets insufficient targets that do not take Paris Agreement obligations into account, and this insufficiency violates their constitutional human rights. In April 2021, the Federal Constitutional Court ruled that the State is obliged by the fundamental right to protection of life and health to protect against climate change, and the government must legislate to reduce emissions. This thoughtful decision specifically looked at the impact on freedom and stated that the government is directly stealing from the future freedom of people alive today by putting CO2 into the atmosphere. The Court gave a binding legal order that Germany must legislate to reduce emissions based on international agreements.
VZW Klimaatzaak v. Kingdom of Belgium & Others [15]
This case was similar to Urgenda in that it was brought forth by a group of concerned citizens, in this case, 58,000 individual plaintiffs. The Brussels Court of First Instance accepted that each individual plaintiff has a direct personal interest and are each entitled to sue the Belgian State, the Walloon Region, the Brussels-Capital region, and the Flemish Region (though the trees were not found to have standing). In June 2021, the Court ruled that Belgium and the three regions each breached Belgian human rights and negligence law through inaction and buck-passing on climate change. An injunction was not issued, but should action not be taken, this case may end up back in court.
Sharma and others v. Minister for the Environment (Australia) [16]
This case was filed by eight children and a nun regarding the extension of a coal mine. In May 2021, the Federal Court of Australia established a duty of care owed by the Minister to each of the eight children, as the mine extension would cause increased CO2 emissions, exposing each of the children to the risk of personal injury or death. There was powerful evidence that climate change is currently harming, and will continue to harm, Australia’s youth; of today’s 4.7 million Australian children, 1 million are expected to suffer at least one heat stress episode needing hospital care, and many thousands will suffer premature death from heat stress or bushfire smoke.
Duarte Agostinho and Others v. Portugal and 32 Other States [17]
Six Portuguese youth filed a lawsuit against 33 countries in September 2020 over the impacts from the previous year’s wildfires and a lack of sufficient government action. The European Court of Human Rights accepted and fast-tracked the case, ordering all defendant countries to respond by May 2021. There were fascinating interventions in this case. For example, the European Union stated that EU countries don’t breach human rights because of their legal obligation and action to reach net zero by 2050.
Milieudefensie et al. v. Royal Dutch Shell plc. [18]
Milieudefensie (Friends of the Earth Netherlands) and other NGOs served Royal Dutch Shell a court summons, arguing that Shell has violated the duty of care under human rights obligations and Dutch law due to its contribution to climate change. In May 2021, the Hague District Court ordered Shell to reduce its GHG emissions from global operations and the use of its products by 45% relative to 2019 levels by 2030. This decision is provisionally enforceable, and thus Shell must meet these reduction obligations regardless of a case appeal. This week, Shell and General Motors announced a program offering renewable energy solutions to GM customers. [19]
Mathur, et al. v. Her Majesty the Queen in Right of Ontario [20]
Seven Ontario youth brought a lawsuit against the Ford government, arguing that the government’s climate action is inadequate and violates the rights of future generations and Ontario youth. Justice Carole Brown rejected Premier Ford’s motion to dismiss the case and her decision was upheld by Ontario’s Divisional Court. When policy choices are translated into law, these laws cannot infringe on the plaintiffs’ constitutional rights, and it is arguable that the Ford government’s actions infringe on Charter rights. [21]
Question & Answer Period
Question: Dr. Saxe, do you see industry moving in a hopeful direction to reduce carbon emissions as a result of legal or government decisions?
Follow-up question: Do you see pension plans moving ahead because of declarations like the one by BlackRock Investing’s Larry Fink?
Dr. Saxe: Right now, some pension plans are acting, and some are not. For example, the Ontario Teachers’ Pension Plan has significantly reduced GHG emissions associated with its portfolio, while the Canada Pension Plan has taken our money and bought more coal assets. [24]
Question: Could you share the name of the new study about legal practitioners not using climate science effectively?
Dr. Saxe: “Filling the evidentiary gap in climate litigation” published in Nature Climate Change at the end of June 2021. [25]
Question: Are doors opening for judges to take judicial notice of climate facts, such as the fact that provincial emissions are not “de minimis”? Does the Greenhouse Gas Pollution Pricing Act help there, or are those just “legislative facts” related to the statute?
Dr. Saxe: It is still the responsibility of litigants to bring evidence coherently to courts, and it is concerning that this is often done badly. Climate scientists don’t write papers using legally relevant language, and while there is a fabulous array of climate experts, it is often difficult for them to tell the story in a way that resonates with a judge. It is up to the lawyer to ‘translate’ and clarify this information. This translation is improving, as seen in the Sharma case. It also seems that judges are becoming more receptive to these arguments due to the increased frequency of personal connections to climate damages, such as experiencing extreme weather events in their community, or seeing a loved one experience climate-related health impacts. Also, more judges are younger and female, both groups that statistically are more likely to care about climate damage. It is important for lawyers to understand the expert and evidence well enough to assist the expert in explaining things clearly.
Question: Could you share your views on how shareholders, pension plan members, etc. can hold pension plans and banks responsible for these investments in fossil fuels?
Dr. Saxe: Nobody can do everything, but everybody can do something. Banks, pension funds and insurers are among the most important places to put pressure right now, because the financial industry is still lending money to oil companies on terms that let them get away with making profit without cleaning up the messes they are leaving behind. [26] In terms of individual action, don’t be afraid to ask questions and speak up when it comes to your pension plan, and consider sending a letter of concern. The fossil fuel industry has been a bad investment for decades, and as shareholders, we have to be asking questions and raising our concerns – look at what happened in the case of Exxon [27] and Chevron. [28] While individual action can be impactful, it is also important to support organizations already doing this work (such as Shareholder Association for Research and Education). Shift Action [29] is a great NGO that teaches people how to lobby their pension plan. It is also important to ensure that we are actively electing climate leaders at all orders of government and voicing our concerns through our votes. She encouraged the attendees to engage and support the work of these organizations.
Dr. Saxe added that it also really matters who we elect, and we need to elect climate leaders. She encouraged the attendees to consider this important reality in the run up to upcoming federal, provincial and municipal elections.
Conclusion
In summary Dr. Saxe argued that a failure to act will lead to disastrous consequences for current and future generations, and the scientific evidence supports a growing moral case for climate litigation. For decades, governments and corporations have engaged in greenwashing and deceptive campaigns, delaying necessary emission reductions and failing to meet international climate agreement obligations. The courtroom door is now open, and lawyers have a vital role to play in ensuring that polluters are held accountable and securing a more equitable, safe, climate-resilient future.
Endnotes
[1] Climate Case Chart ( http://climatecasechart.com/climate-change-litigation/ ) contains U.S. and non-U.S. climate change caselaw databases. Many of the cases include links to case documents, complaints, and decisions.
[2] Angela Dittrich begins her second year as a Masters in Environmental Studies and law (MES/JD) student at York University and Osgoode Hall Law School in Sept. 2021. She is also completing a Business and the Environment graduate diploma from the Schulich School of Business. Angela has a B.Sc. in Integrated Science from McMaster University. Her current research analyzes extended producer responsibility (EPR) approaches across North American jurisdictions with a focus on environmental impacts, economic impacts, and metrics used to determine program efficacy.
[3] David McRobert is an environmental lawyer based in southern Ontario, and retired Adjunct Professor. He has worked with numerous clients on a range of topics including wireless radiation safety, air pollution, water pollution and chemical sensitivity. David served for sixteen years as In-House Counsel and Senior Policy Advisor at the Environmental Commissioner of Ontario. David has a B.Sc. in Biology and a Masters in Environmental Studies in Biological Conservation from York U. He graduated from Osgoode Hall Law School, undertook graduate law studies and was admitted to the Ontario Bar in 1990. David taught law to undergraduate and graduate students at York University, Osgoode Hall Law School, the University of Toronto and Humber College between 1988 and 2011. He has authored and published more than 30 books and reports and dozens of journal articles and shorter articles. Book titles include Risky Business: A Guide to the Use, Handling and Transportation of Asbestos (2012).
[4] For more information on the parallels between the climate crisis and the tobacco industry: Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming, June 2010.
[5] Benjamin Hulac, Tobacco and Oil Industries Used Same Researchers to Sway Public, Scientific American, July 2016. https://www.scientificamerican.com/article/tobacco-and-oil-industries-used-same-researchers-to-sway-public1/
[6] New Documents Reveal Denial Playbook Originated with Big Oil, Not Big Tobacco, Center for International Environmental Law, June 2016. https://www.ciel.org/news/oil-tobacco-denial-playbook/
[7] For climate, evidence of the impact of climate change and its connection to GHG emissions were apparent by the late 1980s. For background, see Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming, June 2010.
[8] The Biggest Barrier to Climate Action in Canada: The Oil and Gas Lobby, Environmental Defense, Oct 2019. https://environmentaldefence.ca/report/oil_barrier_climate_action_canada/
[9] Climate Case Chart ( http://climatecasechart.com/climate-change-litigation/ ) contains U.S. and non-U.S. climate change caselaw databases. Many of the cases include links to case documents, complaints, and decisions.
[10] A recent study from Oxford University states that advances in climate science may increase the likelihood of successful climate litigation cases. See: Fiona Harvey, New climate science could cause wave of litigation against businesses – study, The Guardian, June 2021. https://www.theguardian.com/environment/2021/jun/28/new-climate-science-could-cause-wave-of-litigation-against-businesses-study
[11] Urgenda Foundation v The State of the Netherlands, ECLI:NL:HR:2019:2006
[12] Friends of the Irish Environment v. Ireland, [2020] IESC 49
[13] Notre Affaire à Tous and others v France (No 1904967, 1904968, 1904972, 1904976/4-1)
[14] Neubauer, et al. v. Germany; see Climate Case Chart ( http://climatecasechart.com/climate-change-litigation/ ), endnote 1.
[15] VZW Klimaatzaak v Kingdom of Belgium, et al. (Court of First Instance, Brussels, 2015)
[16] Sharma v Minister for the Environment, [2021] FCA 560
[17] Duarte Agostinho and Others v. Portugal and 32 Other States
[18] Milieudefensie et al. v. Royal Dutch Shell, ECLI:NL:RBDHA:2021:5337
[19] General Motors and Shell Offer Renewable Energy Solutions to U.S. Homeowners, EV Owners and Suppliers, General Motors, June 2021. https://plants.gm.com/media/us/en/gm/news.detail.html/content/Pages/news/us/en/2021/jun/0623-shell.html
[20] Mathur v. Ontario, 2020 ONSC 6918
[21] This article explains the La Rose and Mathur cases: Nathalie Chalifour, Jessica Earle, & Laura Macintyre, Detrimental difference, CBA National, Nov 2020. https://nationalmagazine.ca/en-ca/articles/law/opinion/2020/detrimental-deference
[22] Sam Meredith, BlackRock CEO says the climate crisis is about to trigger ‘a fundamental reshaping of finance’, CNBC, Jan 2020. https://www.cnbc.com/2020/01/14/blackrock-ceo-larry-fink-says-climate-change-will-soon-reshape-markets.html
[23] The coal plants generation capacity, usually used for peak demand periods, was replaced with cleaner natural gas plant capacity.
[24] Mitchell Beer, Canadian Pension Board Invests $141M in Chinese Coal Projects, Undercutting Federal Phaseout Policy, The Energy Mix, July 2020. https://www.theenergymix.com/2020/07/29/canadian-pension-board-invests-141m-in-chinese-coal-projects-undercutting-federal-phaseout-policy/
[25] Stuart-Smith, R.F., Otto, F.E.L., Saad, A.I. et al. Filling the evidentiary gap in climate litigation. Nat. Clim. Chang. (2021). https://doi.org/10.1038/s41558-021-01086-7; https://www.nature.com/articles/s41558-021-01086-7
[26] A fantastic article on the relationships between the financial and fossil fuel industries: Bill McKibben, Money is the oxygen on which the fire of global warming burns, New Yorker Magazine, Sept 2019. https://www.newyorker.com/news/daily-comment/money-is-the-oxygen-on-which-the-fire-of-global-warming-burns
[27] Exxon shareholders ousted three board members and elected three climate activists in a landmark vote in May and June 2021. This shakeup sent a clear message that Exxon’s unambitious, gradual decline of emissions is unacceptable, and may result in a more in-depth review of current spending. For more information: Jennifer Hiller, Exxon's board shakeup could force review of billions of dollars in spending, Reuters, June 2021. https://www.reuters.com/business/energy/exxons-board-shakeup-could-force-review-billions-dollars-spending-2021-06-09/
[28] In May 2021, 61% Chevron shareholders voted to reduce Scope 3 emissions, taking account of emissions across the entire supply chain. For more information: Chevron investors back proposal for more emissions cuts, Reuters, May 2021. https://www.reuters.com/business/energy/chevron-shareholders-approve-proposal-cut-customer-emissions-2021-05-26/
[29] For more information, go to https://www.shiftaction.ca/.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.