As I write this, Los Angeles is on fire, with destruction of property, mass evacuations and human casualties. These are the latest victims of climate change.
Evacuations and deaths from wildfires, floods, heat waves and landslides are the most dramatic effects of climate change, but more invisible impacts include food prices, insurance premiums and taxes – which are all rising due to rising global temperatures.
But climate change violating people’s legal rights is not a convenient message for the fossil fuel economy, and so industry, governments and others are instead blaming climate action for increased costs. In his recent interview with Jordan Peterson, federal Opposition leader Pierre Poilievre communicated his view that expanding gas production is good for the planet and dismissed those who disagree with him as “environmental loons”. He argued that we can “have a green future and eat our cake too” (the metaphorical cake eating in this instance being expanding gas production).
With the imminent inauguration of a climate-denier in the U.S., and the possibility of a federal Canadian government that is hostile to any climate action that constrains the oil and gas industry, it has never been more important to assert our rights and to pursue legal action to protect our communities from the impacts of climate change.
Climate action is about protecting our rights
Traditionally, climate action has emphasized personal efforts and government action. The underlying assumption is that burning fossil fuels, while harmful in the long run, is legal and acceptable unless and until the government steps in to regulate it. This approach to climate action relies on public pressure being enough to get our governments to create new laws and policies that will help Canadians collectively move away from fossil fuels and “transition” to a clean tomorrow.
But the fossil fuel economy has always had the upper hand when it’s viewed as the acceptable (and profitable) norm, while actions to avoid catastrophic climate breakdown are viewed as a change or extreme.
But instead, we need to frame the conservation around fossil fuel pollution harming human rights and property rights. It has never been legal to force people out of their houses, to subject them to toxic smoke or to cause heat waves or landslides that threaten their lives and result in loss of human life (and drive up our costs of living). Those who cause these types of impacts are violating the rights of others and must be held accountable in court.
Climate litigation as a tool to assert our rights
The major advantage of a rights-based approach to climate action, and one that is particularly important when facing governments that are hostile to climate action, is that legal rights can be defended in court.
Increasingly, courts in Canada, the U.S. and around the world are demonstrating an openness to holding both governments and corporations accountable for their role in causing climate change. While no one government or company can be said to have “caused” climate change single-handedly, those that have made massive contributions to the problem can be scrutinized by the courts.
For example, the Ontario Superior Court, in a constitutional case brought by youth against the province’s government, found that (as summarized by the Court of Appeal):
[I]t is indisputable that, as a result of climate change, the [appellant youth] and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person.” … Ontario’s greenhouse gases contribute to climate change in a way that is “real, measurable and not speculative” and that “[e]very tonne of [carbon dioxide] emissions adds to global warming and lead[s] to a quantifiable increase in global temperatures that is essentially irreversible on human timescales.” [Para 15]
The government of Ontario is currently trying to appeal the decision of the Ontario Court of Appeal in that case to the Supreme Court of Canada.
Canadian governments and politicians of all stripes claim to have a plan to tackle climate change. At their best, some of these plans will slowly reduce emissions, although often with weak targets and without the urgent action that is required. At their worst, they actually expand oil and gas development and undermine real climate action, making grandiose claims that are not backed by evidence.
Unlike politicians, who are often focused on short-term electability and in some cases may be bought and paid for by fossil fuel interests, the job of judges is to hear evidence, consider the impacts on rights and decide legal responsibility. Judges’ findings and orders are not easily ignored, even by governments that may be ideologically committed to expanding oil and gas operations at the expense of our planet’s safety.
In addition, as a strategy, climate litigation need not require a government to enact new laws or policies. This is important when dealing with decision-makers who may be hostile to climate action.
It is important not to ignore the challenges of litigation. It can be expensive and focused on technical legal questions. Judges will often defer to government decision-makers, particularly on matters of public policy. There is no guarantee of success. However, faced with a government that seems blind to its legal and moral obligations to protect Canadians, or to the science of climate change, courts may be our last, best hope.
Advantages to suing fossil fuel companies
Returning to the Los Angeles fires, the State of California is currently suing fossil fuel companies for their role in misleading the public on climate science, and thereby making climate change worse (including by causing more frequent, larger and more severe wildfires). The State’s claim, filed in September 2023, is prescient:
[C]limate change is leading to disruptions in the state’s natural temperature and precipitation patterns that have helped maintain the healthy, balanced role of wildfire in California. The result is a wildfire crisis. Increasingly higher temperatures coupled with longer and more intense droughts have led to substantially drier vegetation and fuel loads across the state that are more easily ignitable during periods of hotter conditions, which are becoming more frequent and more intense in California under climate change. The wildfire season is beginning earlier in the year and ending later, and the footprint of wildfire in California has expanded due to climate change.
While climate lawsuits against governments typically focus on the constitutional obligations of the government to protect their residents from future harm, the lawsuits brought against oil, gas and coal companies have mostly focused on the harms that our communities have experienced as a result of the activities of these corporations. While fossil fuel companies are not ultimately responsible for all of the costs of climate change, we can hold them accountable for a fair share which reflects their contribution to global greenhouse gas pollution.
Climate lawsuits against fossil fuel corporations are important for several reasons
First, from a purely financial perspective, taxpayers cannot afford the massive tax increases required to build wildfire, heat, drought, and flood resilient infrastructure and services that are now needed to keep our communities safe – let alone the costs of rebuilding after disasters if we choose not to climate-proof our communities.
Second, fossil fuel companies and their investors continue to invest in expanding fossil fuel infrastructure because these industries appear profitable, due in large part to the belief (which so far has been the case) that others will always pay for the resulting climate costs, as well as from government subsidies. We need investors to make decisions that reflect the full costs of fossil fuels, including the costs from burning their products, and lawsuits can make that happen; a study from the London School of Economics’ Grantham Institute showed that fossil fuel industry stock prices dropped measurably when the companies were sued.
Third, these lawsuits are not limited to tackling Canadian polluters or energy companies but can sue global companies that have contributed to climate harm in Canada. Since Chevron has historically caused more greenhouse gas emissions than all of Canada’s emissions combined, these cases can have an effect that goes well beyond Canada’s borders. With a climate-hostile government in the U.S., it’s absolutely essential that U.S. companies be on the hook for harm that they have caused and are continuing to cause.
Without a doubt it will be challenging to sue large companies with deep pockets. However, there are now more than 70 states and local governments in the U.S. suing fossil fuel companies, so BC communities that file a lawsuit would be in good company. More importantly, the Sue Big Oil campaign provides a path towards a class action lawsuit that allows local governments to work together and minimize the risk involved in suing fossil fuel companies.
Conclusion
It can be alarming to see politicians rise in the polls despite denying the reality of the climate crisis – whether through outright denial of climate science or through pushing the lie that we can solve climate change while burning the fossil fuels that cause it. Similarly, it is frustrating to see corporations and investors making massive profits based on balance sheets that ignore the harm caused to our communities. But they can only get away with these forms of climate denial as long as the rest of us accept violations of our rights and fail to fight to protect our families and communities against the harm that the fossil fuel economy is causing us.
Top photo: Gergana Gergova for Fine Acts (Creative Commons)