Canada: Increase In Climate Change Litigation In U.S. Courts Could Spill Over Into Canada

Climate change litigation is proliferating in the United States. In the fall of 2009, in the decisions in State of Connecticut et al. v. American Electric Power Company Inc., et al. (Connecticut); Native Village of Kivalina, and the City of Kivalina v. ExxonMobil Corporation et al. (Kivalina); and Ned Comer, et al. v. Murphy Oil USA, et. al. (Comer), three different American courts ruled on the potential for tort claims to be brought against large emitters of Greenhouse Gases (GHGs). These cases present two disparate interpretations of the role litigation will play in the climate change policy debate. They also create significant uncertainty for large emitters.

The importance of these decisions is twofold. First, they herald a likely increase in climate change litigation in the United States, with a possible spill-over effect in Canada. Second, they portend a liberalization of the plaintiff "standing" test and the "political question" justiciability test in the United States in respect of mass environmental torts. The implications for Canadian litigation is considered below.

The Decisions

In State of Connecticut et al. v. American Electric Power Company Inc., et al. (Connecticut), nine American states and the City of New York – later joined by three land trusts – brought an action against six electric utilities seeking an injunction abating a nuisance – namely, the defendants' ongoing GHG emissions which contribute to global climate change. In September 2009, the 2nd Circuit Court of Appeal unanimously reversed the court of first instance's finding that the plaintiffs' claims presented non-justiciable issues and remanded the case for further proceedings.

In Native Village of Kivalina, and the City of Kivalina v. ExxonMobil Corporation et al. (Kivalina), the community of Kivalina, Alaska brought an action in public nuisance against twenty-four large emitters of GHGs for the cost of relocating the island community. The plaintiffs alleged that the defendants' GHG emissions contributed to climate change which, in turn, caused the earlier annual breakup of sea ice that protected the island. On September 30, 2009, the United States District Court for the Northern District of California found that the claim was not justiciable.

Finally, in Ned Comer, et al. v. Murphy Oil USA, et. al. (Comer) the plaintiffs, residents and owners of property along the Mississippi gulf coast alleged that damage to their property from the increased ferocity of Hurricane Katrina was the result of climate change to which the defendants contributed as large emitters of GHGs. The action also sought compensatory and punitive damages based on public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation and civil conspiracy. The United States District Court for the Southern District of Mississippi initially granted the defendants' motion to dismiss the claims on the basis of a lack of standing and non-justiciability. But, on October 16, 2009, the 5th Circuit Court of Appeal overturned the court of first instance's dismissal of the plaintiffs' claims for lack of standing and non-justiciability. The plaintiffs' claims in nuisance, trespass and negligence are, in fact, justiciable, whereas their claims for unjust enrichment, fraudulent misrepresentation and civil conspiracy are not.

"Political Questions": Justiciability

In the United States, the "political question" doctrine of justiciability is intended to restrain the judiciary from trespassing on the powers reserved for other branches of government. It arises out of a constitutional separation of powers in that country. Case law has developed six "formulations" (or categories) for when a case presents a "political question" which cannot be adjudicated by the courts. As noted by the court in Kivalina, these can be conveniently addressed in three groups.

The foremost is whether there is a textually demonstrable constitutional commitment of the issue in question to a particular level of government. In Connecticut, the court rejected the defence arguments that either the commerce clause of the Constitution or the power of the President to engage in foreign policy demonstrated a constitutional commitment of the issue of climate change to a coordinate political department.

Furthermore, the court found that the decision of

a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national or international emissions policy.

The court in Kivalina agreed. In Comer, the 5th Circuit made a similar finding, ruling that the "only issues are those inherent in the adjudication of the plaintiffs' Mississippi common law tort claims for damages," which had in no way been committed exclusively to the federal political branch by either a federal constitutional or statutory provision.

The second group of formulations requires the existence of a judicially discoverable standard and prohibits cases where the court is required to make policy decisions as part of its judgment. In Connecticut, the 2nd Circuit held that the existence of environmental complexity does not create a non-justiciable issue. This is demonstrated by the past adjudication of complex environmental public nuisance cases. With respect to the need for an initial policy determination, the court in Connecticut found that it is the purpose of federal common law to provide for areas where policymakers have not acted.

Although future legislation may well prevent future claims of this nature, that should not prevent plaintiffs from seeking redress now. In Comer, the 5th Circuit dismissed the suggestion that there was an absence of judicially discoverable standards, stating that "Mississippi and other states' common law tort rules provide long-established standards for adjudicating the nuisance, trespass and negligence claims at issue."

The two appeal courts and the lower court in Kivalina had the most divergent opinions on this second formulation of the "political questions" test. In Kivalina, the court was adamant that the level of complexity in the area of climate change was so extreme as to make it non-justiciable and that the judgment would require the court to balance certain societal interests in a way best suited to elected officials. Furthermore, the cases cited in Connecticut as demonstrating the ability of courts to handle complex environmental issues were all distinguished as either existing within a legislative context or involving environmental issues that were less attenuated and more discrete in nature. Finally, although the plaintiffs in Kivalina were not seeking injunctive relief, the court nonetheless held that the claim in that case required the court to balance the social utility of the defendants conduct against the harm it causes. Therefore, the claim required a policy determination about the acceptable limit of GHG production going forward.

It is noteworthy that the 5th Circuit in Comer rejected the notion that either in law or in fact, the adjudication of a "typical air pollution case" requires federal courts to imitate the functions of a legislative or regulatory body and "balance" policies.

The third group of formulations of the "political questions" test relates to the potential for a decision to conflict with prior decisions by the political branch or to be unnecessarily embarrassing, such as by ruling in a direction certain to be reversed in imminent legislation. This formulation was not addressed in Kivalina. However, in Connecticut, the court extended the reasoning of justiciable-by-default and held that the lack of unified policy in the area allows for litigation without the risk of potential embarrassment.

The court in Comer went even further, stating that the second formulation of the "political questions" test does not require "unquestioning adherence to a federal political branch decision already made" since the courts regularly overturn federal laws and decisions that are unconstitutional. The court also noted that even if valid federal legislation were enacted in this area, "it might very well preserve state common law remedies."


The second major issue in these cases is standing. To gain standing in the U.S. federal court, a plaintiff must show that, assuming all of the allegations advanced are provable, the claim presents three necessary elements:

  1. the plaintiffs have suffered an injury;
  2. that injury is "fairly traceable" causally to the defendants' actions; and
  3. it is likely that the injury will be redressed by a favourable decision.

The primary element contended in all three cases was the second – "fairly traceable" causation. In Comer, for example, the first and third elements were completely conceded.

In Connecticut, all three elements were contended. With respect to the first requirement, the Court accepted that both the current injury (manifest in such ways as a rapidly melting California snowpack causing flooding) and the potential for future injury (e.g., resulting from a rise in sea levels causing more frequent and severe flooding, harm to coastal infrastructure, destruction of habitat for commercial and game species, lowering of the Great Lakes and disruption of hydropower production, summer heat waves impacting agriculture, disruption of hardwood forests and fish habitat, increased wildfires) were properly pleaded. Although the defendants argued that future injuries were not sufficiently "imminent" to meet the first test, the court disagreed on the basis that the alleged future injuries were "certainly impending" especially considering that the defendants were continuing the causative act of GHG emissions. The court in Kivalina, did not discuss this first requirement.

On the second requirement of "fairly traceable" causation, the defendants in Connecticutand in Comer argued that their small contribution to global climate change was not sufficient to meet the test. However, the court in Connecticut found that only a substantial likelihood of causation is required at the standing stage – specifically, proof that the defendants emitted the type of pollutant which caused the harm alleged. It was not necessary at the pleadings stage for the plaintiffs to establish "tort causation" or "proximate cause." In Comer, the court noted that any argument calling upon the court to assess the merits of the plaintiffs' case at the threshold standing stage is inappropriate so long as there is a fairly traceable connection between the alleged injury and the alleged conduct of the defendant.

By contrast, in Kivalina, the lower court held that in the context of a common law nuisance claim (as opposed to a claim based upon a statutory scheme), the courts must be more vigilant in not automatically finding adequate causation for standing. The act of discharging GHGs is not, in and of itself, sufficient to establish injury. A finding that contribution equals causation is inappropriate where the defendants are only one of an unknown number of contributors of an undifferentiated pollutant.

Finally, under the third element of the federal court standing test, the plaintiffs were required to prove a substantial likelihood that the requested relief would redress the alleged injury. The defendants in Connecticut argued that an injunction forcing them to abate their GHG emissions would not redress the injury to the plaintiffs caused by third parties who were not named as defendants in the action – namely, every other emitter of GHG world-wide. Invoking past rulings on the topic of climate change, the court in Connecticut held that it is sufficient merely to show that a favourable decision will slow or reduce the injury. The court in Kivalina did not discuss the redressability issue.

Prudential Standing

In addition, in Comer, both the trial and appeal courts dismissed the plaintiffs' claims of unjust enrichment (the artificial inflation of petrochemical prices by the defendants), civil conspiracy (misleading the public on the potential dangers of climate change) and fraudulent misrepresentation (making materially false statements in public relations about climate change). The "prudential standing" test under Article III of the U.S. Constitution effectively bars "adjudication of generalized grievances more appropriately addressed in the representative branches." Since the interest of the plaintiffs in these particular claims was the same as that of the general public, this standing rule was not met.

Relevance To Canada

Given the decisions in Connecticut and Comer, climate change litigation should continue to grow in both the United States and Canada.

In Canada, there have been no climate change civil actions for injunctions or damages, although there have been several important judicial review decisions. This could easily change. The common law of torts in both countries is similar and the potential defendants are nearly identical. Furthermore, owing to Canada's northern climate, its wealth of coastline that is susceptible to extreme weather conditions and its heavy reliance upon GHG intensive oil sands, the number of communities which could potentially take legal action due to circumstances similar to those addressed in the American cases may be growing. It may only be a matter of time before civil actions seeking redress for GHG impacts are commenced in this country.

There are, however, significant differences in how the courts in both countries deal with issues of jurisdiction and standing. Canada has no "political questions" doctrine enshrined in its Constitution. Although the issue has been considered in obiter in a minority opinion in the Supreme Court of Canada, it is questionable whether Canadian courts would rely heavily on such a foreign legal concept. However, at Canadian common law, courts may decline jurisdiction where it has been "ousted" by a complete statutory code for the resolution of a dispute. In addition, Canadian courts are not adverse to ruling issues to be "non-justiciable" on the basis that they are so speculative as to be incapable of proof (Operation Dismantle) or on the basis that as a matter of statutory interpretation, the legislation expressly delegates the determination of an issue to a political forum (Friends of the Earth v. Canada). Jurisdiction could very much be an issue in Canada.

Similarly, Canadian standing law does not emanate from our Constitution but rather the common law. Nevertheless, that common law imposes numerous standing hurdles. A plaintiff must have a "direct interest" in the outcome of the litigation – generally, champerty and maintenance is not permitted (a notable exception is contingency fees, which are permitted in class proceedings). Absent a direct interest, where a Canadian plaintiff wishes to meet the "public interest" standing test prescribed by the Supreme Court, certain important hurdles must be met. As well, absent an express statutory provision amending the common law, the tort of public nuisance (the sole tort founding the Connecticut action) does have a standing requirement similar to "prudential standing" – namely, plaintiffs must suffer "special damages" distinct from those suffered by the general public before the action is permitted to proceed.


If similar climate change lawsuits are commenced in Canada, they will face many procedural and preliminary hurdles.

They will also face significant substantive and evidentiary hurdles. None of the three climate change decisions reviewed here were trial decisions. Many substantive and evidentiary issues remain to be tried. For example, plaintiffs will have to prove: a private law duty of care in negligence (foreseeability and proximity); the unreasonableness of the nuisance; causation (whether on the basis of a "but-for" or material contribution test); and, in a proposed class proceeding, that a class action is the preferable procedure.

To conclude, while the appeal decisions in Connecticut and Comer are ground-breaking in some respects, they do not mean that plaintiffs in Canada will have an easy time commencing or sustaining a climate change lawsuit, or that plaintiffs in either country will be able to readily prove liability.

Jack Coop is a partner in the Litigation Department in the firm's Toronto office. The focus of his practice is environmental litigation. Dan Kirby is a partner and Co-Chair in the firm's Environmental Law Group.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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