13/06/2017

Could Governments And Oil Companies Get Sued For Inaction On Climate Change?

Toronto Star - Alex Ballingall

Experts predict a coming era of "climate litigation," which is slowly emerging around the world and could soon come to Canada.
A girl walks along the shore as strong waves from Typhoon Hagupit hit the eastern Philippines in 2014. Climate change is being blamed for more extreme weather conditions. (Aaron Favila / AP FILE PHOTO)
OTTAWA—Eight hundred million dollars: that’s the potential price tag of the rising ocean in Vancouver. The city needs a new storm surge barrier to stop flooding if, according to municipal planners, sea levels climb by one metre this century due to climate change.
When discussing this scenario last fall, Vancouver Mayor Gregor Robertson said something that made Andrew Gage perk up and listen from his law office in Victoria. “There are direct costs to our taxpayers, but this is not an act of God,” Robertson reportedly said. “This is tied directly to human activity.”
Translation for Gage: Maybe it’s not just Tracy and Tom Taxpayer who should be on the hook for the new storm barrier. Maybe whoever is to blame for the rising ocean should fork over some cash.
That’s the idea, crudely put, behind an emerging front in the battle against climate change. And environmental groups and legal teams around the world are looking to the courtroom as their theatre of war.
The clunky term for it is “climate change litigation.” The legal field is in its infancy, but many feel it will inevitably make an impact, given the estimated costs of new infrastructure and economic disturbances expected from climate change — some of which are astronomical. A 2012 report from the Climate Vulnerable Forum, a group of international researchers, pins the global cost at $1.2 trillion in 2010, a figure they predict will quadruple by 2030.
In March, Policy Horizons Canada, a government department that predicts possible challenges for the public service in the coming 10 to 15 years, published a paper in April that warned of future court challenges over climate change. The paper outlines how large emitters like oil and gas companies, as well as governments, could be taken to court over alleged inaction on climate change.
In an emailed statement, a spokesperson for the federal environment ministry said the government wouldn’t speculate on hypothetical legal matters.
However, the statement said that a government roundtable predicted in 2011 that the economic impact of climate change on Canada could reach $5 billion per year by 2020 and between $21 billion and $43 billion per year by 2050.
“Environment and Climate Change Canada is taking serious climate action and developing policies that will benefit current and future generations,” it said.
Climate litigation is already happening in other parts of the world. One of the most frequently cited cases involved an environmental group, Urgenda, which took the Netherlands to court over its allegedly lacklustre emissions reduction targets. In June 2015, a Dutch court ruled in favour of Urgenda and found that the government must do more to curb emissions because of “its duty of care to protect and improve the living environment.”
In Germany, a Peruvian farmer is reportedly appealing a decision to reject his lawsuit against energy company RWE, which he accuses of increasing the threat of flooding from a glacial lake near his home in the Andes.
There is also a case in the Philippines involving Greenpeace, which is arguing that the world’s largest oil companies are violating the human rights of local people because of the rising incidences of extreme weather, such as the 2013 storm that killed thousands and caused billions of dollars in destruction.
In the United States, where a soon-to-be-published study provided to the Star says some 500 climate change litigation cases have been heard and rejected, a group of state attorneys general launched an investigation last year into major oil companies like Shell, Chevron and Exxon Mobil. The Policy Horizons paper calls the move “unprecedented” and describes how the investigation’s aim is to determine whether emitters deliberately ignored, and even tried to create doubt about, the causes and consequences of climate change.
Gage, who is a staff counsel with West Coast Environmental Law, believes it is only a matter of time before such a case lands in Canadian court.
“I have no doubt that this type of litigation is going to happen, because as the climate costs more and more, people are going to be demanding that someone pays for the costs,” Gage said in an interview this week.
Mark Carney, the former Bank of Canada governor who moved to the United Kingdom to take up the central banker job there, made a similar prediction in a 2015 speech to a London business crowd. He warned that “such claims could come decades in the future, but have the potential to hit carbon extractors and emitters — and, if they have liability coverage, their insurers — the hardest.”
Stepan Wood, the York Research Chair in Environmental Law and Justice and director of the Environmental Justice and Sustainability Clinic at Osgoode Hall, said the government would be wise to start thinking about this.
“I don’t think there’s anybody in the legal community who would bet against some kind of litigation being launched in Canada, against either government or emitters, in the near future,” he said.
“There’s a feeling that the ball is starting to roll.”
Wood outlined the various legal avenues for a prospective climate litigation case in this country.
One way is to issue a tort claim for damages against an emitter, such as an oil company. But Wood said the big hurdle in such cases is to prove causation: how can you convince a judge that the consequences of climate change that are costing you can be blamed on this particular emitter?
Wood said other options could include lawsuits under securities law, where company shareholders could sue, or possibly lawsuits for misinformation, similar to when tobacco companies were accused of ignoring evidence that cigarettes cause cancer.
Gage, meanwhile, argues one of the most likely cases to succeed could be if municipalities band together for a class-action lawsuit against large corporate emitters. The cities would argue they’re owed money to help pay for infrastructure, such as the storm barrier in Vancouver, Gage said.
One counterargument could be that everyone shares responsibility for climate change. It takes consumers to burn fossil fuels, and if the government has failed, you might say that the citizens bear responsibility for not forcing it to act.
Gage said that it’s time to have this debate because the era of climate litigation could be around the corner.
“The idea that we’re going to avoid this conversation forever is ludicrous. Of course we’re going to have this conversation, and it’s going to result in litigation,” he said.

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