Climate Change | Can the legal system help us???

Climate change lawsuit gets green light
By Dianne Saxe

October 09 2009 issue

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Three momentous current developments in the U.S. — a court decision and two new regulations — give us an important clue as to the direction climate change will go in Canada.

Until now, most American (and Canadian) courts have ducked civil suits on climate change, ruling that the issue is “non-justiciable,” i.e. political, not judicial. Control of climate change, they argue, is much too complicated, requiring elaborate and sensitive trade-offs between competing domestic and international interests. It is up to the government to act, they have said, and it has chosen not to do so.

This was, for example, the reason recently given by our Federal Court for refusing to enforce a Canadian statute, the Kyoto Protocol Implementation Act, which our government has decided to flout. (Friends of the Earth v. Canada is under appeal.)

Nonsense, said the well-respected Second Circuit of Appeals on Sept. 21. In Connecticut v. American Electric, the court ruled that victims of climate change can sue coal-fired electric utilities in common law nuisance. The court’s reasons are couched in U.S. jurisprudence, but the essential arguments and responses are equally applicable in Canada.

In American Electric, seven U.S. coastal states and the City of New York seek an order in federal court, requiring the seven largest U.S. coal-fired electric utilities to slash their greenhouse gas emissions. In a parallel lawsuit, three major non-governmental organizations that own and protect sensitive environmental lands sue the same defendants for the same relief. The defending utilities brought a summary judgment motion to strike out the claim, and were successful (on the non-justiciable ground) in the District Court. The plaintiffs appealed, and have now won a resounding victory.

Justiciability

The court carefully dissected and rejected each of the defendants’ arguments. On justiciability, the Second Circuit feels competent to adjudicate environmental cases, such as nuisance, between defined parties. British, American and Canadian courts have over a century of experience adjudicating complex common law public nuisance cases on air and water pollution. The courts also feel able to apply established tort rules to new and complex factual situations and have done so on many occasions. Climate change litigation, they say, is not necessarily different, stating:
“[N]owhere in their complaints do plaintiffs ask the court to fashion a comprehensive and far reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coal fired electricity plants on the ground as such emissions constitute a public nuisance that they allege has caused, is causing and will continue to cause them injury…The fact that a case may present complex issues is not a reason for… courts to shy away…

“The political implications of any decision involving possible limits on carbon emissions are important in the context of global warming, but not every case with political overtones is non-justiciable.”

Does tort law apply to greenhouse gases? In the U.S., as in Canada, common law torts can be supplanted by legislation. To date, the U.S. government has deliberately refused to limit greenhouse gas emissions. Does that refusal “occupy the field”? No, according to the Second Circuit, failure to act does not supplant the common law.

Other typical defences were equally rejected. All plaintiffs had standing to bring their claims because of the direct harm that each of them is suffering and will suffer from climate change; the states and the City of New York had an additional claim to standing because of their government role to protect the public interest.

Causation

What about causation? Because climate change is driven by global emissions, not merely local ones, defendants always say there is no legal link between their emissions and the plaintiffs’ damages.

Again, the Second Circuit was unimpressed. The same tort may be committed by many emitters, but this does not immunize them all from legal responsibility. The plaintiffs need only prove that the defendants are making a material contribution to their damages; in this case, the seven defendants emit 10 percent of total U.S. greenhouse gases. It will be up to the trial court to determine what proportion of the plaintiffs’ damages ought to be attributed to these defendants.

Each of these conclusions has obvious application in Canada, and could underpin litigation against our major greenhouse gas emitters, most obviously the oil sands operators. The precise details may differ, but the fundamental issues and policy choices are the same. And, in both countries, major emitters may now prefer legislation to the risk of civil lawsuits.

Canada will have little choice but to copy two major new U.S. regulations. On Sept. 15, after 30 years of litigation, the U.S. Environmental Protection Agency (EPA) issued a rule requiring massive improvements in the energy efficiency of North American cars and trucks. And on Sept. 22, the EPA ordered thousands of American businesses to report their greenhouse gas emissions, starting Jan. 1, 2010.

Canada already has a mandatory greenhouse gas reporting system for the largest emitters, but the U.S. rule applies to a much larger segment of the economy, including any organization that emits 25,000 tonnes of CO2e/year. Canada will now have to do the same, which could be a surprise to the many companies below our current reporting threshold of 100,000 tonnes.

Dianne Saxe is an environmental law specialist and heads the environmental law boutique Saxe Law Office in Toronto.

http://www.lawyersweekly.ca/index.php?section=article&volume=29&number=21&article=3

~ by Cory Morningstar on October 7, 2009.

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