Probable or not, possible or not, the mere possibility is something powerful
In the worlds of environmentalism, environmental law, and particularly climate change advocacy, Roger Cox is currently quite the celebrity. This past June, he won a suit brought by environmental NGO Urgenda and 886 Dutch citizens against the Dutch government. To oversimplify, the plaintiffs successfully argued the Dutch government breached a duty to the Dutch population by not setting stricter gashouse gas emission targets. On September 15th, Cox gave a public talk, discussing his motivations, current climate change evidence, and the plaintiffs’ legal strategy. A panel discussion followed Cox’s talk, including current Osgoode Hall Dean and justiciability expert Lorne Sossin, former Justice of the Ontario Court of Appeal Hon. Stephen Goudge, leading Canadian environmental lawyer David Estrin, and tort law expert Lewis Klar.
Originally, I intended to summarize the Urgenda case, the opinions of the panellists and finally the majority opinion on climate change litigation in Canada. However, there are enough legal pieces out there that it’s unlikely that another one—written by a second year law student no less—will add anything meaningful. To anyone looking for something to that effect, I suggest articles written by Diane Saxe of Saxe Law (and new Environmental Commissioner of Ontario), Andrew Gage of West Coast Environmental Law or Stephen Leahy of DeSmog Canada. They have had years to develop their expertise while I have three weeks of environmental law under my belt.
In short, I’ve abandoned my original plans for this article. Not because they aren’t important, but because I left the talk with something substantially more critical that I need to discuss. I left that talk with hope. Real, can feel it in my heart and my bones hope, something I haven’t associated with climate change in years.
From Peter Kent’s announcement that Canada was officially withdrawing from the Kyoto Protocol in December 2011 to the conclusion of the September 15th event, I looked upon any discussion of climate change with the jaded, thousand yard stare of a soldier after a failed operation. Studying environmental science left me feeling like a tinfoil hat wearing conspiracy theorist, looking at society pondering how everyone else can know so little about our dire situation. Sometimes, I also felt like Morpheus, the gatekeeper to the “truth” about our reality, only with much more mixed feelings about which pill Neo should take. Whenever I read an article, viewed a TED Talk or watched a documentary about climate change, I would absorb the new calamitous predictions with a dispassionate disposition, accepting the severity of the situation, but lacking the drive to act.
There was once hope in Canada, I think. At the very least, my teenage memories are laced with it. Sure, the One Tonne Challenge was an abject failure that preached to the converted and could never have met its own goals. But it was something that achieved a high level of awareness in the Canadian public, meaning that climate change itself was once on all of our collective radar. I remember learning about the 2002 Kyoto Protocol ratification, how Canada’s previous government developing a plan that—while looked down upon by the OECD and Canada’s Commissioner of the Environment—signalled that Canada was at least trying to meet its emission reduction targets. Was there a significant lack of enforceable regulation and too heavy a reliance on voluntary measures? Yes. But, as was the case with the One Tonne Challenge, we were heading in the right direction.
Of course, the change of government following the election in January 2006 changed all that. The newly elected Conservative government made it clear they were not going to attempt to meet Canada’s Kyoto targets. From there, cuts were made to federal contributions to climate change programs including wind power and home efficiency promotion, Canada actively blocked progress on new climate change agreements, and (as mentioned earlier) Canada became the first country to exit the Kyoto Protocol. While the latest IPCC report states that there is a 95% certainty that a correlation exists between the rising average global temperature and rising atmospheric CO2 levels, our federal government set a new, much weaker emission target than Canada’s commitments under Kyoto. During all this, I bemoaned the loss of the image of Canada I once had while developing an exceptionally negative attitude. And while I’ve had such a miniscule amount of exposure to environmental law, so far it hadn’t lessened my near-unshakeable cynicism.
But as was the case before 2006, there are signs we’re heading in the right direction again. In tort law, the recent Federal Court of Appeal decision Paradis Honey Ltd. v Canada, 2015 FCA 89 includes fairly radical obiter suggesting revamping public authority liability. In Carhoun & Sons Enterprises Ltd. v Canada (Attorney General), 2015 BCCA 163, the British Columbia Court of Appeal concluded that while policy decisions are outside the realm of civil liability, “incompetently” implementing policy decisions are not be immune. In the wake of the Urgenda ruling, a similar climate change litigation case is being mounted in Belgium. At the September 15th event, the majority of the panellists agreed that climate change litigation was at least a possibility in Canada. Hon. Stephen discussed a Charter claim while David Estrin discussed public nuisance. Dean Lorne Sossin went so far as to say that “climate litigation is inevitable.”
Outside the law there are also signs of change. The Pope’s most recent encyclical contains a strong call to profoundly reform the global economic system. Following the publication of her book This Changes Everything: Capitalism vs the Climate last year, Naomi Klein recently released to The Leap Manifesto, a declaration calling for Canada to abstain from fossil fuel use by 2050. The Leap Manifesto has since garnered considerable support from many Canadian celebrities, politicians, academics, activists and Indigenous and other community leaders. David Boyd’s The Optimistic Environmentalist was published this past summer to very positive reviews, and support is continuing to grow around Linda McQuaig since her “a lot of the oil sands oil may have to stay in the ground” comment last month.
We’re quick to criticize baby steps, myself included. Relative to all other actions being taken, they can appear pointless. But if they are in the right direction, baby steps will always be better than doing nothing or going the other way. And maybe there is more to baby steps. In Cormac Cullinan’s Wild Law, the author describes a flock of birds “wheeling in the sky” as a way of visualizing the tipping point of a social movement. There is no leader in the flock, directing which way they should fly. Instead, an increasing number will signal their desire to change direction momentarily varying course until a critical mass is reached and the entire flock turns as one.
Maybe climate change litigation will happen in Canada, maybe not. If climate change litigation does happen in Canada, maybe it will be successful, maybe not. I don’t know. For now, the changes and events I’ve seen recently, Roger Cox’s talk, and the following panel discussion have all left me feeling hopeful about the Earth’s future climate. Perhaps we’re not merely taking meaningless baby steps; we’re coaxing the Canadian people until the flock changes direction completely.