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Feeling the Heat: Climate Litigation Under the Canadian Charter’s Right to Life, Liberty, and Security of the Person

Feeling the Heat: Climate Litigation Under the Canadian Charter’s Right to Life, Liberty, and Security of the Person

Nathalie J. Chalifour & Jessica Earle

“Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

~The Honorable Judge Ann Aiken, U.S. District Court for the District of Oregon[1]

Climate change has become one of the most serious challenges of our time. It has been characterized as a “super wicked problem” because of how complex it is to address at a policy level.[2] And time is of the essence: climate change is already affecting the planet and its inhabitants in unprecedented ways, and scientific consensus shows that the impacts we are experiencing today are just the beginning.[3] In addition, climate change has important social justice implications–it is often the people and communities who are already facing discrimination, marginalization, or other injustices that are most vulnerable to its effects. The case of indigenous communities living in Arctic regions offers a poignant example.[4] Failure to take serious action without delay to reduce the greenhouse gas (GHG) emissions leading to climate change is a serious injustice to all, but especially to the most vulnerable.

Although the global community pledged in the 1992 United Nations Framework Convention on Climate Change (UNFCC) to “prevent dangerous anthropogenic interference with the climate system,” and developed nations committed to specific reductions under the Kyoto Protocol, global levels of the anthropogenic GHG emissions at the heart of climate change have continued to rise over the intervening years.[5]

Many hope the 2015 Paris Agreement marked a turning point in addressing what its 197 Parties consider to be an “urgent threat.”[6] Under that Agreement, nations pledged to reduce their GHG emissions in an effort to keep global average temperatures from rising more than 1.5-2°C.[7] While this is an important step forward, it is insufficient since, even if all Parties fulfill their individual mitigation pledges, it will not be enough to keep warming from crossing the 2°C threshold.[8] It is also insufficient because there is growing evidence that a rise of 1.5-2°C will still result in dangerous levels of warming.[9] The U.S. plan to withdraw from the Paris Agreement creates even greater uncertainty, leaving a glaring hole in global accountability.[10]

Given the poor track record of most countries, including Canada, in meeting their past commitments to reduce GHGs (or failing to make adequate commitments in the first place), many citizens around the world are searching for ways to hold their governments accountable for reducing GHG emissions.[11] While climate lawsuits are not new, a recent set of successful cases has given momentum to those seeking to force governments to take the steps needed to reduce GHG emissions.[12] The watershed moment for climate litigation was the Urgenda decision, where a Dutch court held that the government has a legal duty to reduce its GHG emissions to the level that the Intergovernmental Panel on Climate Change (IPCC) stated developing (Annex I) countries would be required to meet to avoid dangerous levels of climate change—a reduction of 25–40% below 1990 levels by 2020.[13] Even though the Dutch government had a GHG-emissions reduction policy in place that aimed to reduce emissions by 20% below 1990 levels by 2020, the Court held it was insufficient since it was not at the level of ambition needed to avoid dangerous climate change.[14] On the heels of the Urgenda decision, a Pakistani court held the government accountable for failing to implement its climate commitments, and ordered the government to take steps to reduce GHG emissions and help communities adapt to climate change.[15] In North America, eyes are on a lawsuit by 21 youth and a scientist acting on behalf of future generations, who are suing the federal government for enabling harmful levels of GHG emissions.[16] The plaintiffs in the case (Juliana v. United States), have cleared a number of important pre-trial motions brought by the defendants, and the case is set to proceed to trial in May 2018.[17] These and other litigation successes have turned the tide, and climate lawsuits aimed at holding governments similarly accountable to do their share to address this global problem are spring up in counties across the globe at a rapid pace.[18]

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[1] Juliana v. United States, 217 F. Supp. 3d 1224, 1250 (D. Or. 2016) (internal citation omitted).

[2] See Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, 94 CORNELL L. REV. 1153, 1159 (2009) (asserting this issue “defies resolution because of the enormous interdependencies, uncertainties, circularities, and conflicting stakeholders implicated by any effort to develop a solution”); Kelly Levin et al., Overcoming the Tragedy of Super Wicked Problems: Constraining Our Future Selves to Ameliorate Global Climate Change, 45 POL’Y SCI. 123, 124 (2012) (explaining that “super wicked problems” include four features: “[1] time is running out; [2] those who cause the problem also seek to provide a solution; [3] the central authority needed to address them is weak or non-existent; and [4] irrational discounting occurs that pushes responses into the future”).

[3] See, e.g., U.S. GLOB. CHANGE RESEARCH PROGRAM, CLIMATE SCIENCE SPECIAL REPORT: FOURTH NATIONAL CLIMATE ASSESSMENT 10 (2017) (noting the effects of climate change and predicting 1–4 feet of sea level rise by 2100).

[4] See infra notes 50–54 and accompanying text (discussing the challenges indigenous populations will face because of climate change).

[5] United Nations Framework Convention on Climate Change, art. 2, May 9, 1992, 1771 U.N.T.S. 107 [hereinafter UNFCCC]; Kyoto Protocol to the United Nations Framework Convention on Climate Change, art. 3(1), Dec. 11, 1997, 37 I.L.M. 22 (entered into force Feb. 16, 2005) [hereinafter Kyoto Protocol]; Canadian Environmental Sustainability Indicators: Global Greenhouse Gas Emissions, ENV’T & CLIMATE CHANGE CAN. 5 (2017), https://www.canada.ca/en/environment-climate-change/services/environmental-indicators/global-greenhouse-gas-emissions.html (last modified June 19, 2017).

[6] United Nations Paris Agreement, pmbl., Dec. 12, 2015, U.N. Doc. FCCC/CP/2015/10/Add.1 [hereinafter Paris Agreement].

[7] Id. art. 2(1)(A).

[8] Fiona Harvey, World’s Climate Pledges Not Yet Enough to Avoid Dangerous Warming – UN, GUARDIAN (Oct. 30, 2015), https://www.theguardian.com/environment/2015/oct/30/worlds-climate-pledges-likely-to-lead-to-less-than-3c-of-warming-un.

[9] Danny Harvey et al., Dangerous Anthropogenic Interference, Dangerous Climatic Change, and Harmful Climatic Change: Non-trivial Distinctions with Significant Policy Implications, 82 CLIMATIC CHANGE 1, 11 (2007); Joel Smith et al., Assessing Dangerous Climate Change Through an Update of the Intergovernmental Panel on Climate Change (IPCC) “Reasons for Concern, 106 PROC. NAT’L ACAD. SCI. 4133, 4134 (2009); James Hansen et al., Assessing “Dangerous Climate Change”: Required Reduction of Carbon Emissions to Protect Young People, Future Generations and Nature, 8 PLOS ONE 1, 3 (2013); James Hansen et al., Young People’s Burden: Requirement of Negative CO2 Emissions, 8 EARTH SYS. DYNAMICS 577, 578 (2016). For a discussion on climate science, see infra Part II.A.

[10] See infra notes 67–74 and accompanying text (discussing the Paris Agreement and the uncertainty regarding its ability to reduce GHG emissions).

[11] VANUATU ENVTL. LAW ASS’N, TAKING CLIMATE JUSTICE INTO OUR OWN HANDS: A MODEL CLIMATE COMPENSATION ACT 5 (2015), https://ssrn.com/abstract=2906252 (describing citizen demand to hold global companies and governments accountable for environmental harms).

[12] See infra Part II.C (discussing climate-liability lawsuits that plaintiffs have filed worldwide).

[13] Rb. Den Haag 24 juni 2015, C/09/456689/HA ZA 13-1396 m.nt. Hofhuis, Bockwinkel en Brand, para. 4.83 (Urgenda Foundation/Netherlands) (Neth.). Note that the decision is under appeal. To read more, see The Urgenda Climate Case Against the Dutch Government, URGENDA, http://www.urgenda.nl/en/themas/climate-case/ (last visited May 4, 2018).

[14] The Dutch government was on track to reduce emissions by 14–17% at the time the Urgenda case was being litigated. Urgenda, C/09/456689/HA ZA 13-1396 paras. 4.31, 4.33, 4.70, 4.84.

[15] Leghari v. Pakistan, (2015) WP No. 25501/201 (Punjab) paras. 13, 19, 25 (Pak.) (discussing how the court first constituted the Climate Change Commission and then the Standing Committee on Climate Change because the Pakistani government failed to implement climate change action).

[16] Juliana v. United States, 217 F. Supp. 3d 1224, 1233 (D. Or. 2016).

[17] See, e.g., Opinion and Order, Doc. 83 at 51–52, 54, Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Nov. 10, 2016) (denying defendant’s Motion to Dismiss because the defendant’s actions “threaten plaintiffs’ fundamental constitutional rights to life and liberty”).

[18] U.N. ENV’T PROGRAMME, THE STATUS OF CLIMATE CHANGE LITIGATION 10–11 (2017), http://columbiaclimatelaw.com/files/2017/05/Burger-Gundlach-2017-05-UN-Envt-CC-Litigation.pdf.

 

 

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