Swedish activist and student Greta Thunberg, centre, takes part in the Climate Strike, in Montreal on Sept. 27, 2019.Paul Chiasson/The Canadian Press
On Thursday, a group of 15 Canadian children announced they were planning to sue the government over climate change. This is the second such case in Canada: Youth in Quebec are pursuing a similar suit, but this B.C.-based suit has gotten buzz because Greta Thunberg will be in Vancouver on Friday, when they plan to hold a press conference. The world’s most famous climate kid is still in Canada, riling everybody up.
Those two suits join 12 others brought by children against their governments, in places from India to the Netherlands. They’re also numbered among the more than 1,000 climate-change-related court cases worldwide, as tracked by the Sabin Center for Climate Change Law at Columbia University. Such cases drag on forever – I couldn’t find one that had been fully settled – costing everyone involved a lot of money and time. But climate activists disappointed by legislative foot-dragging feel compelled to turn to the law.
There are two main sorts of climate-related suits. The first set are those brought against companies, such as the many filed by U.S. municipalities seeking money for climate-resilience infrastructure. Similar action has been discussed in Vancouver, Victoria and Toronto.
Canada’s two youth suits fall into the second category, which centres on rights. These are tricky, since Canada is one of a very few countries that doesn’t have environmental rights specifically enshrined in their constitutions. In the United States, where 21 youth have been pursuing a case since 2015, a federal lawyer argued explicitly in June that a stable environment isn’t covered by the Fifth Amendment’s commitment to life and liberty.
Last fall, the non-profit Environnement Jeunesse (ENJEU) applied in Quebec Superior Court to file a class-action suit against Canada, on behalf of everyone in the province age 35 and under. The allegation is that by setting an insufficient emissions-reduction target, the government failed to protect young people’s rights under the Charter of Rights and Freedoms.
“Article seven of the Charter protects the right to life, liberty and security of the person, and those are definitely at stake,” said Bruce Johnston of the firm Trudel, Johnston & L’Espérance, which is representing ENJEU pro bono. The B.C.-based group is also planning to argue that, because young people will be most affected by climate change, lack of action also infringes on their right to equality.
Quebec’s provincial constitution does recognize environmental rights (as does Ontario and the three territories). Mr. Johnston says that in a July hearing, Superior Court Justice Gary D.D. Morrison agreed that Quebec’s charter applied to the federal government. The judge also agreed that the issue was “justiciable,” or within a court’s ability to decide. That’s been disputed by fossil fuel companies in U.S. cases, which have argued that emissions targets and other mitigation are legislative problems, not legal ones.
But despite that, ENJEU’s class action wasn’t approved. Justice Morrison had trouble with the proposed age limit: First, that 35 seemed rather arbitrary and second, that a suit involving minors needed approval of parents, which would be difficult given the millions of plaintiffs.
Mr. Johnston said he and his clients plan to appeal. “All roads lead to the Supreme Court,” he said, indicating that they’re ready to keep at it for years. Which is more than likely, since cases against both government and corporations drag on for ages.
The first suit against a federal government kicked off in the Netherlands in 2015, and only now has it reached that country’s highest court. In New York, a landmark fraud trial began on Tuesday, in which Exxon Mobil is accused of betraying shareholders by playing down the costs of adhering to emissions standards. That one took four years to get in front of a judge.
It will all be expensive and likely disheartening. In Canada and elsewhere, young people will grow up watching adults debate just how frightened about the future they have the right to be. But the payoffs have the chance to be huge: ENJEU is asking for $100 for each plaintiff, which would create a $340-million fund to put toward climate-related causes. New York estimates that Exxon could have cost its investors as much as US$1.6-billion.
And the effects will go well beyond the financial, as well, as publicity contributes to the increasing momentum on climate action. Governments and corporations are on notice – public determination to deal with this problem is getting stronger every day. Suiting up your lawyers won’t work forever.
Editor’s note: An earlier version of this column stated that the vast majority of countries don’t have environmental rights specifically enshrined in their constitutions. In fact, the majority of countries do worldwide, although Canada does not.
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