Friends of the Earth challenges Federal Government of Canada's failure to act on climate law
Friends of the Earth Canada, represented by Ecojustice and Paliare Roland Barristers, recently argued before the Canadian Federal Court of Appeal that the federal government is in violation of a Canadian law that requires Canada to take action to meet their international commitments to combat climate change.
On June 22, 2007 the Canadian legislature passed the Kyoto Protocol Implementation Act (KPIA). KPIA states that its purpose is “to ensure that Canada takes effective and timely action to meet its obligations under the Kyoto Protocol and help address the problem of global climate change.” Within 60 days of coming into force and not later than May 31 of every year thereafter until 2013, KPIA mandated that the Minister of the Environment had to prepare a “Climate Change Plan” and release it publicly. KPIA set out a specific list of guidelines for the Climate Change Plan to ensure that Canada met its international obligations.
Friends of the Earth Canada filed suit in 2007 after the Minister of the Environment released the first of three “Climate Change Plans for the Purposes of KPIA.” The environmental group claims that none of the three plans issued by the Canada’s Minister of the Environment comply with the requirements of KPIA because none of the plans comply with the Kyoto Protocol. Climate change plans were released on August 21, 2007, May 31, 2008, and May 30, 2009.
In the action, the Friends of the Earth Canada seeks a declaration finding that the Canadian federal government did not comply with its legal obligation under KPIA and a court order requiring the Minister of the Environment to do so.
The issue was on appeal after a lower Canadian federal court held that KPIA itself was not justiciable, meaning that it was not an issue that the courts could resolve. The court held that Parliament should resolve the issue.
This lawsuit was filed less than a month before the Government of Canada indicated its intention to quit participating in the Kyoto Protocol when it expires in 2012. Canada may plan instead to join the Asia-Pacific Partnership, which does not set any rigid requirements for GHG reductions. Friends of the Earth Canada states these plans were announced at the UN Special Session on Climate Change in New York on October 5, 2007.
Human rights-based climate change litigation - a new tool for environmental advocates?
A January 15 UN report on the relationship between climate change and human rights has concluded that while, in theory, global warming may infringe on certain fundamental human rights, individual human rights-based climate lawsuits are not likely to be successful. Nonetheless, environmental advocates may soon be taking up these issues in the courtroom, in part because litigation can bring mass public awareness to climate change issues. This increased exposure may apply added pressure to shape government policy, but is climate change an issue for courts to address?
There are three difficulties generally associated with litigation based on climate change: 1) it is almost impossible to establish a link between the named defendant, usually a State actor, and the alleged injury; 2) it is equally difficult to prove that global warming directly caused the harm; and 3) human rights based actions focus on completed harms, while the harms associated with global warming are usually based in the future. (See Article: “Are Regulatory Findings Admissible Evidence?” discussing issues of causation in climate change lawsuits)
However difficult in practice, human rights litigation based on climate change seems inevitable, as climate change has become an impetus for litigation in other contexts. Internationally, several companies are facing litigation for allegedly causing harm through environmentally unfriendly activities. In Australia, environmental groups lodged a complaint against a company that used the term “clean coal” to describe its power plant. Shell and ExxonMobil are among the defendants in a case in Nigeria that is attempting to stop the use of gas flaring. In the first European climate change litigation, environmental groups in Germany are attempting to compel the government to disclose its contributions to a credit agency that supports projects that allegedly increase greenhouse gas emissions. Canadian environmental groups have sued the Canadian government for inadequately complying with Kyoto. These actions have brought international attention to global climate change issues.
Even if human-rights based climate litigation ultimately fails, it will be a useful tool for environmental advocates who have the resources to bring these actions. According to an International Council on Human Rights report on climate change and human rights, “[l]awsuits draw attention to harmful effects that might otherwise remain below the public radar, put a name and face to the otherwise abstract suffering of individuals and provide impetus and expression to those most affected by the harms of climate change.”
While climate change law may add a new chapter, the story of human rights and the environment is an old one. The UN’s 1972 Stockholm Declaration recognized the “intrinsic link” between human rights and the environment. More recently, a joint seminar between the Office of the High Commissioner on Human Rights (“OHCHR”) and the United Nations Environment Programme (“UNEP”) in 2002 addressed human rights and the environment, and issued a background paper on the existing environmental jurisprudence of human rights bodies, which discussed the effects of human rights law and the environment on particular groups of people.
Chicago announces plan to reduce area emissions to Kyoto Protocol levels
The ongoing federal-state disagreement over the regulation of greenhouse gases has not prevented a major U.S. city from initiating its own efforts to reduce emissions. As recently reported in the New York Times and Washington Post, Mayor Richard Daley announced a plan to reduce Chicago’s climate-changing emissions. The express goal of the climate plan is to reduce Chicago emissions – by 2020 – to a Kyoto Protocol-inspired level of 25% less than the city’s 1990 emissions.
While there are approximately 780 signatories to the U.S. Conference of Mayors Climate Protection Agreement (a municipal level response to the targets proposed in the Kyoto Protocols), Chicago’s climate plan may be unique. The climate plan’s proposed reduction measures are meant as answers to a Texas Tech University/University of Illinois study – commissioned by Chicago authorities – which projected the city-specific impacts of climate change. These projected, city-specific impacts included quantified “increases in both morbidity (illnesses) as well as mortality (deaths)”, air quality decreases, and frequency changes for “vector-borne and water-borne disease outbreaks.”
Although many of the climate plan’s mandates will fall on the municipality, local and regional businesses will also be required to contribute to the emissions reduction goals. In addition to an announced – but unspecified – “agreement with two coal-fired power plants to reduce emissions or shut down by 2015 and 2017,” Chicago anticipates:
- Changing the industrial, commercial, and residential building codes to require “green building industry” renovations or “retrofits”;
- Procuring a greater fraction of its energy requirements from renewable sources; and
- Taking unspecified action to “improve the efficiency of existing electricity generation plants in the region that suppl[ies] Chicago’s power ….”
Most states are moving to address greenhouse gasses in some fashion, notably including California, where Governor Schwarzenegger recently announced plans to hold a climate policy summit, organizing regional and local government leaders. With hundreds of municipal authorities promising to add local legal mechanisms and targeted exertions of market power to that patchwork of state activity, catch-as-catch-can regulation of climate changing emissions is becoming a near certainty in the United States.
International climate discussions and the political question defense
The first three major tort-based climate change lawsuits against alleged greenhouse gas emitters were dismissed in part because they raised non-justiciable political questions (all three cases are currently on appeal). For example, the district court in Conn. v. Am. Elec. Power Co., Inc. rejected a public nuisance case brought by 8 state attorneys general against 5 power companies based on the companies’ greenhouse gas emissions. The court held that the case was non-justiciable because it required “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature.”
Recent events offer added support for advocates of the political question defense in climate-based tort litigation:
- A report submitted to the G8 by Tony Blair in advance of last week’s G8 summit (“Breaking the Deadlock: A Global Deal for our Low Carbon Future”) identified the significant hurdles in crafting national and international approaches to greenhouse gas emissions: “Given the complexity of the issues involved, the imprecision of much of the data, and the extraordinarily tricky interplay between the political, the technical and the organisational, answering the question of ‘how?’ is as difficult as any the international community has grappled with since the design of the post-war Bretton Woods economic institutions.”
- The same report later states: “When negotiators sit down in Copenhagen in December 2009, they will face one of the most formidable political challenges in recent history. They must build on the strengths, as well as address the weaknesses of the Kyoto Protocol, to create a successor treaty that will be agreed to, ratified, and enacted by 191 countries to take firm and decisive joint action on climate change. That is why this year’s G8, under the leadership of Japan, is so important.”
- Commentators noted that the G8’s announcement of a goal of a 50% reduction in Greenhouse Gases by 2050 leaves most of the tough questions unanswered, while developing countries rejected the G8 goal. In DOT EARTH, Andy Revkin posted an annotated analysis of the political machinations involved in the G8 climate declaration and the joint statement from established and emerging economies a day later.
- EPA’s Advanced Notice of Proposed Rulemaking, “Regulating Greenhouse Gas Emissions Under the Clean Air Act” (July 11, 2008), notes an active debate within the Executive and Legislative branches about how to regulate greenhouse gas emissions: “The implications of a decision to regulate GHGs under the Act are so far-reaching that a number of other federal agencies have offered critical comments and raised serious questions during interagency review of EPA’s ANPR. Rather than attempt to forge a consensus on matters of great complexity, controversy, and active legislative debate, the Administrator has decided to publish the views of other agencies and to seek comment on the full range of issues that they raise.”
