Climate Change in the Courts

In our workshop we discuss the risk from cases brought against funds, corporations or governments from various stakeholders for bad action—or lack of action—on climate change, so we find the project called the ClimateChange Litigation Databases, jointly put together by the Sabin Center for Climate Change Law at Columbia Law School and Arnold & Porter to be quite interesting. 

The two databases track cases in the US and globally that have been brought before judicial bodies where climate change law, policy, or science is a material issue of law or fact in the case. Cases that make only a passing reference to climate change are not included. The Global database also includes several cases brought before arbitral tribunals under the terms of bilateral and multilateral investment agreements.

As of 5 August 2022, the databases have a total of 2,086 cases of which 1,477 are in the US and 609 are in the rest of the world. The databases are searchable by jurisdiction, principal law, case category including the type of defendant (governments or corporations and individuals) and the main cause of action (e.g., greenhouse gas emissions reduction and trading, environmental assessment and permitting, human rights, etc.).

In the global database, the cases are broken into those against governments (591) and those against corporations and individuals (117).

The database shows 33 cases in Canada, with several of note:

  • One case brought to the Supreme Court of Canada was the province of Saskatchewan asking if the Greenhouse Gas Pollution Pricing Act (GGPPA) was an unconstitutional intrusion into provincial jurisdiction. This was backed by several other provinces. On March 25, 2021, the Supreme Court rejected Saskatchewan and Ontario's appeals and upheld the GGPPA as constitutional.
  • A case was launched in 2018 by a non-profit to bring a climate change-related class action against the Canadian government on behalf of Québec citizens aged 35 and under. ENvironnement JEUnesse asked the Court, inter alia, to declare that the Government of Canada has failed in its obligations to protect the fundamental rights of young people under the Canadian Charter of Rights and Freedoms and the Québec Charter of Rights and Freedoms, alleging the government violated plaintiffs’ rights by setting a greenhouse gas reduction target insufficient to avoid dangerous climate change impacts and by lacking an adequate plan to reach its greenhouse gas emission target. In 2021 the Quebec Court of Appeal ruled that the conclusions sought by the Appellants are tantamount to asking the courts to tell the legislature what to do, which is not their role. The Court did not weigh in on the allegation that government actions were contributing to climate change and therefore violated the Charter rights. A similar case, La Rose v. Her Majesty the Queen, is pending at the Federal Court of Appeals
  • In the Federal Court of Appeals, two houses of the Wet’suwet’en indigenous group filed a legal challenge on February 10, 2020 alleging that the Canadian government's approach to climate change has violated their constitutional and human rights. While yet to be decided, previous court rulings moved to strike the action because the case was not justiciable because it did not have a sufficient legal component to anchor the analysis, had no reasonable cause of action, and the remedies were not legally available.
  • The Sierra Club of BC has launched an action in the Supreme Court of BC in 2022, challenging the Minister of Environment and Climate Change Strategy’s 2021 Climate Change Accountability Report on the grounds that it did not meet the requirements under the Climate Change Accountability Act. 
  • In 2019, seven youth sued alleging that Ontario violated the Charter by abdicating its responsibility to address climate change. The Ontario government filed a motion to dismiss arguing the Charter does not guarantee a right to a stable climate, the plaintiffs lack standing to represent future generations, the plaintiffs have shown no reasonable cause of action, and the plaintiffs cannot prove their allegations. The Superior Court Justice rejected the motion to dismiss on the grounds that it not plain and obvious that the plaintiffs present no reasonable cause of action. The justice reasoned that both the GHG reduction target and the repeal of the Climate Change Act are reviewable by the court for their compliance with the Charter. According to the plaintiffs, this is the first time a Canadian court has ruled that climate change may threaten fundamental rights under the Charter.