"New Stuff" in Climate Change Class Actions

June 18, 2019

Written By Julia E. Schatz

"You’re asking us to do a lot of new stuff, aren’t you?" Judge Andrew D. Hurwitz of the U.S. Court of Appeals for the Ninth Circuit in Juliana v. United States, June 4, 2019.

It has been a busy month for climate change litigation in Canada and the United States. Two prominent class actions were in court in Québec and Oregon, both launched by young people who allege their federal governments are not taking enough action on climate change and are in breach of their constitutional rights as a result.

• On June 4, in Juliana v. United States, the plaintiffs (a class comprised of 21 people ranging from ages 9 to 21) and the defendants (several U.S. federal agencies and President Trump) appeared before the U.S. Court of Appeals for the Ninth Circuit in Oregon. The trial was scheduled to be heard last fall but had been delayed by government motions.
• On June 6, ENvironment JEUnesse (ENJEU) presented its class action climate claim against the Canadian government in the Superior Court of Québec on behalf of Québeckers aged 35 and under.

Juliana and ENJEU

Juliana v. United States was filed against the U.S. federal government in 2015 in which the plaintiffs claim a breach of the "public trust doctrine", saying that the government holds public resources in trust for the public's use and enjoyment—and it has breached those obligations in the management of the resources.

ENvironnement JEUnesse vs Canada was filed in November 2018 on behalf of all Québec citizens aged 35 years and under. ENJEU alleges the Canadian government is infringing on a generation's fundamental Charter rights, because its greenhouse gas reduction targets are not ambitious enough to avoid harm to human life and health (claiming breaches of sections 7 and 15 of the Canadian Charter of Rights and Freedoms and section 1, 10 and 46.1 of the Québec Charter). They are making the novel claim that the governments are disproportionately burdening younger generations with the future costs of climate change and are specifically infringing the Québec citizens "right to live in a healthful environment in which biodiversity is preserved" (Québec Charter, section 46.1).

Other Climate Change Class Actions

There have been nine youth-led class actions in the United States in recent years with similar grounds to those plead by the plaintiffs in the Juliana and ENJEU claims. Large oil and gas corporations have also been sued in the United States by states, municipalities and in private civil claims, alleging that they have contributed substantially to the "public nuisance" of global warming.

A recent climate change class action in Canada was the case brought by Burgess against the Ontario Minister of Natural Resources and Forestry where cottage owners on the Muskoka Lakes were claiming against the government for its role in flooding of the lakes. The plaintiff claimed that the government had a duty to avert foreseeable flooding, and were negligent in failing to take action, despite knowing that the lakes had reached dangerously high levels early in the year. The claim was commenced in September 2016 and discontinued in November 2018 at the request of the plaintiff.

In addition, Volkswagen is facing a class proceeding in Québec (Belisle v. Volkswagen) brought on behalf of all people who lived in Québec at some point between January 1, 2009, and September 21, 2015, for Volkswagen’s alleged contribution to pollution generated by the company’s vehicles installed with the defeat device. The claim, which is for punitive damages only arising from allegations of breach of the Québec Charter right to a “healthful environment,” was authorized by the Québec Superior Court even though it recognized that the claim might not be legally tenable. The Supreme Court of Canada has since granted leave to hear an appeal from that authorization.

Hurdles to Success

There are many hurdles to the success of climate change class action lawsuits in the courts, some of which were highlighted in the arguments recently advanced in the Juliana case. One main question that frequently arises in such cases is whether climate change policy is a political or legislative question better left with the legislative and executive branches in Canada, the United States and elsewhere as opposed to the courts. As Judge Andrew D. Hurwitz told the lawyer for the plaintiffs in Juliana, “[y]ou’re arguing for us to break new ground. You may be right. I’m sympathetic to the problems you point out. But you shouldn’t say this is just an ordinary suit. . . .You’re asking us to do a lot of new stuff, aren’t you?”

We'll have to see if the court is prepared to accept the "new stuff" when the decision is announced.

Bennett Jones offers clients some of Canada’s most experienced and active class action defence lawyers. Our Class Action Litigation group delivers value to clients through strategy defined by business objectives, a practical approach to managing risk, demonstrated experience and success, and service delivery tools and technology.

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