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 tradeoffs between competing interests,
domestic and international. 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.
Nonsense, said the well respected Second Circuit of Appeals on
September 21. In Connecticut v. American Electric, they ruled that
victims of climate change can sue coal-fired electric utilities in
common law nuisance. Their reasons are couched in US jurisprudence,
but the essential arguments and responses are equally applicable in
In this case, seven US coastal states and the City of New York
are seeking an order in federal court, requiring the seven largest
US 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
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
[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
Does tort law apply to greenhouse gases? In the US, as in
Canada, common law torts can be supplanted by legislation. To date,
the US 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 City of New York had an additional claim to standing
because of their government role to protect the public
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% of total US GHG. It will
be up to the trial court to determine what proportion of the
plaintiffs' damages ought to be attributed to these
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.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
In June, 2016, Justice Faieta of the Ontario Superior Court of Justice awarded damages of $57,712.31 plus interest against legal counsel who failed to file a claim within the required limitation period.
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