A Climacteric Litigation Decision - Part II: A Brief History of Climate Change Litigation in Canada and the USA

This article is the second in a three-part series. In this article, we will provide a brief history of climate change litigation in Canada and the United States.

In part I, which can be found here, we provided a summary of Held, et al v State of Montana, et al (“Held”),[1] where the Montana First Judicial District Court in Lewis and Clark County, Montana, handed down an Order that is reportedly the first major climate litigation decision to come from a North American court where claims based on environmental rights were upheld. The third and final article in this series will discuss the potential impact of the Held decision - including the likelihood of further climate change litigation.

A Brief History of Climate Change Litigation in Canada and the USA

Climate change and climate change-related litigation has become increasingly common at various levels of courts in both Canada and United States (“U.S.”). Our review of public climate change litigation databases[2] indicates that there have been 35 climate change-related decisions from Canadian courts since 2007; similarly, there have reportedly been 28 public trust claims decided by U.S. courts since 2011, as well as hundreds of other climate change-related decisions since 1986. Below is a brief summary of several notable decisions identified in our research.

Canada

In Canada, our research identified two notable decisions, both arising from the Kyoto Protocol to the United Nations Framework Convention on Climate Change (the “Protocol”)[3] and the Kyoto Protocol Implementation Act (“the KPIA”).[4] On April 29, 1998, the Government of Canada signed the Protocol, with a commitment to reduce its emissions by 6% below 1990 levels. Upon a non-binding motion presented to the House of Commons, the Protocol was ratified in 2002 and took effect in 2005. In 2007, when the Government of Canada published a plan that established a new target to reduce greenhouse gas emissions that was 34% higher than the target established by the Protocol, a Member of Parliament proposed a private bill requiring compliance with the Protocol – the KPIA, which was enacted. The Government of Canada then withdrew from the Protocol.

In Friends of the Earth v The Governor in Council and Others,[5] Friends of the Earth, a non-profit organization, brought three applications for judicial review seeking relief in connection with a succession of alleged breaches of duties said to arise under the KPIA. The KPIA imposed a number of responsibilities upon the federal Minister of the Environment and the Governor in Council, such as the requirement that a Climate Change Plan be prepared describing “the measures to be taken to ensure that Canada meets its [Kyoto] obligations”.[6] The Climate Change Plan submitted by the government was expressly not intended to meet the Kyoto Protocol commitments.

Friends of the Earth sought a declaration from the Federal Court of Canada that the Government of Canada had failed to meet the legal requirements of the KPIA. The Court determined that the KPIA was not reviewable by a court; the Court could play no role in reviewing the reasonableness of the government’s response to Canada’s Kyoto commitments. However, the Court commented that while there may have been a limited role for the Court in the enforcement of the clearly mandatory elements of KPIA, such as those requiring the preparation and publication of Climate Change Plans, statements and reports, those matters were not at issue in the applications. In 2009, the Federal Court of Appeal affirmed the Federal Court’s decision, substantially for the reasons given by the lower court.[7] The Supreme Court of Canada declined to hear an appeal in 2010.[8]

In 2012, another notable case was heard by the Federal Court. In Turp v Minister of Justice and Attorney General of Canada,[9] the applicant brought an application for judicial review of the Government of Canada’s decision to withdraw from the Protocol.

The Court dismissed the application for judicial review and concluded that the KPIA contained no provision, condition, or restriction that would limit the government from withdrawing from the Protocol, and therefore the government’s decision to withdraw from the Protocol did not violate the KPIA nor the principle of the rule of law. The motion to ratify the Protocol had only asked the government to ratify it and did not oblige the government to act nor bind the government in any way.

The United States

In the U.S., the decision of City of Los Angeles v National Highway Traffic Safety Administration[10] is reportedly the first case that attempted to address climate change as a result of greenhouse gas emissions. In 1986, a group of cities, states, and environmental groups brought challenges under the National Environmental Policy Act related to the decision of the National Highway Traffic Safety Administration not to prepare an Environmental Impact Statement covering average fuel economy standards for new vehicles. The challenges were brought on the basis that lowering average fuel economy standards would worsen climate change. The Court held that the petitioners had standing, but the challenges failed on their merits.

Two decades later, Massachusetts and 11 other states petitioned the Environmental Protection Agency (“EPA”) to regulate carbon dioxide and greenhouse gas emissions under the Clean Air Act in Massachusetts v Environmental Protection Agency.[11] The EPA denied the petition and claimed that the Act did not authorize the EPA to regulate greenhouse gas emissions. In 2007, the U.S. Supreme Court held that carbon dioxide and greenhouse gases were air pollutants under the Act and could be regulated by the EPA. The Court held that the EPA could avoid making regulations on greenhouse gases only if it determined that greenhouse gases do not contribute to climate change. This was a landmark decision from the U.S. Supreme Court that opened the door for future climate change-related litigation, such as Held.

In 2005, in Comer v Murphy Oil USA, Inc.,[12] several plaintiffs filed nuisance, trespass, and negligence claims against companies that produced fossil fuels, alleging that the companies produced greenhouse gas emissions, which contributed to climate change, and thereby increased the effects of Hurricane Katrina, which damaged their property. The plaintiffs’ claims were dismissed as the Court determined it was unable to hear the claims, and that the plaintiffs lacked standing. While part of this decision was reversed, the plaintiffs’ claims were ultimately dismissed at the Fifth Circuit Court and rejected at the U.S. Supreme Court.

In Reynolds v Florida, eight Florida youths alleged that the State of Florida, the Florida governor, and other state officials and agencies violated their fundamental rights to a stable climate under Florida common law and the Florida constitution. The plaintiffs argued the defendants’ contributions to climate change and creation and operation of a fossil fuel-based energy system caused widespread harm to the plaintiffs and Florida’s natural resources. In 2021, the Florida Court of Appeal affirmed the dismissal of the complaint on the basis that the lawsuit raised nonjusticiable political questions.[13]

While there are many other climate change-related decisions from this time period in the U.S., this article merely offers a snapshot of cases that have built the foundation of climate change litigation to date, culminating in the decision in Held and other ongoing litigation.

Ongoing Litigation

In Canada, there are two notable climate actions currently underway; both were filed in 2019 and are pending or waiting to be heard in appeal courts.

In Mathur, et al v Her Majesty the Queen in Right of Ontario,[14] seven youths brought an action against the Government of Ontario alleging that the government had violated the Canadian Charter of Rights and Freedoms ("the Charter")[15] by failing to address climate change. In 2018, the Government of Ontario passed the Cap and Trade Cancellation Act,[16] which replaced strong greenhouse gas reduction targets for 2020, 2030, and 2050 with a lower target for 2030. In 2020, the defendants filed a motion to dismiss, arguing that the Charter does not guarantee a right to a stable climate and that the plaintiffs had shown no reasonable cause of action. This motion was dismissed by the Ontario Superior Court of Justice on the basis that it was not plain and obvious that there was no cause of action. This is reportedly the first decision in Canada where a court recognized that climate change has the potential to violate Charter rights. The decision permitted a full hearing, which is scheduled in the Ontario Court of Appeal for January 2024.

In La Rose v Her Majesty the Queen,[17] fifteen youths brought an action against the Queen and Attorney General of Canada, alleging that Canada’s emissions and contributions to greenhouse gas emissions violated the plaintiffs’ rights to life, liberty, and security of the person under section 7 and their rights to equality under section 15 of the Charter, since youth are disproportionately affected by the effects of the climate emergency. In 2020, the Federal Court of Canada granted a motion brought by the defendants to strike the claim. The Plaintiff youths appealed to the Federal Court of Appeal seeking to proceed to a trial and are currently awaiting a decision from that Court.

In the U.S., 21 youths filed a constitutional challenge against the U.S. government in Juliana v United States in 2015.[18] The complaint alleged that the U.S. government's actions, and inaction, by its failure to address climate change, contributed to climate change and violated the youth plaintiffs’ constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources. While this litigation has experienced many procedural setbacks, a recent decision from a U.S. District Court in 2023 granted leave to amend the complaint, allowing the action to proceed to trial.

While these three actions have the potential to be climacteric decisions, Held is still the most notable decision to date, and the first to come from a North American court where claims based on constitutional environmental rights were upheld.

Stay tuned for the final article of this series where we will review the potential impact of the Held decision, including the likelihood that further climate change litigation will occur.

For more information on environmental and climate change litigation, contact Stuart Chambers, Aaron Mann, or any member of our Environmental & Energy Practice Group.