When abroad, I have often bragged about Canada’s legal system, how competent and respected our courts are and how no one is above the law. But this boast has taken a blow in the area of climate change and the Kyoto Protocol.
The Kyoto Protocol is a binding international agreement reached in Kyoto, Japan, in 1997, in which developed countries agreed to reduce the greenhouse gas emissions that cause climate change. Canada was one of the first signatories and ratified the Protocol in 2002. In 2005, the Liberal government proposed an implementation plan, but the bill had not yet passed when the Conservatives won a minority government in the 2006 federal election.
Harper’s Conservatives oppose Canada’s Kyoto commitment, but Parliament adopted the Kyoto Protocol Implementation Act, 2007, despite Conservative objections. The KPIA requires Canada to develop a plan to comply with the Protocol and to publish annual progress reports. What was the response of our national government? Sulky defiance: our party did not vote for this law and we won’t comply with it.
Outrageous, but don’t Canadians have a remedy to such defiance of Parliament? Won’t our courts enforce our law? In September 2007, environmental group Friends of the Earth (FOE) launched a lawsuit seeking an order that our government comply with the KPIA. In 2008, the Federal Court of Canada decided that this wasn’t their job. It’s “not justiciable,” i.e. not a matter for the courts, they said: climate change is too complicated and political. In 2009, the Federal Court of Appeal agreed, dismissing FOE’s appeal.
Are our federal courts really less capable than courts in the United States? Two major U.S. courts decided last year that climate change is justiciable; it is simply the application of existing legal principles to new facts. Courts have a long tradition of adapting the law to new social, economic and scientific facts. In Connecticut v. American Electric Power, the U.S. Court of Appeal for the Second Circuit held that nuisances caused by climate change are justiciable, and permitted eight U.S. states, the City of New York and three land trusts to sue the five largest emitters of carbon dioxide in the U.S. In Comer v. Murphy Oil Co., the U.S. Court of Appeals for the Fifth Circuit ruled that victims of Hurricane Katrina can sue major oil, coal and chemical companies for their contributions to climate change and its impact on their disaster. In another case, the U.S. Army Corps of Engineers has already been held liable for their contribution to the flooding of New Orleans.
None of these courts was frightened off by government arguments about justiciability, even though the American cases involve multiple parties and scientific issues about emissions, the atmosphere and damages to public and private property. The American courts, in other words, consider themselves quite capable of deciding immensely complex climate change cases.
In comparison, FOE asked our federal courts to do something simple: to judge whether our national government is complying with a short, valid, domestic law that the government acknowledges it doesn’t obey. Our courts were not asked to make any of the difficult decisions about climate change, such as causation, damage, allocation or remedy, that the U.S. courts have taken on. They were asked only to order the government to comply with the KPIA by producing a good faith implementation plan plus progress reports. How could this be non-justiciable? FOE has sought leave to appeal from the Supreme Court of Canada. Let’s hope that our top judges have the courage and competence of our American cousins and that they will help to restore the rule of law in Canada.
Dianne Saxe is one of the world’s top 25 environmental lawyers, according to Best of the Best, 2008. She practices at a boutique law firm in Toronto and writes a blog on environmental law and litigation.