A Reducing Cap on Canada’s Oil and Gas will Not Lower World GHG Emissions: Why then the Crusade by the Globe and Mail Editorial Board?

We are now finally faced with what some climate advocates have long requested – direct action solely targeting and limiting the Canadian production of oil and gas to save, they say, the planet from climate change. Prime Minister Justin Trudeau announced in early November at the COP26 conference that the federal government intended to cap all oil and gas emissions at current levels, with reduction targets for 2025 and 2030, and to obtain net zero emissions by 2050. No other industry is to be so uniquely targeted for an emissions reductions regime, although the industry is responsible for only 26% of Canada’s emissions.

The Globe and Mail editorial board, eschewing its belief in the sufficiency of carbon pricing (e.g. here and here), has reversed itself and is fully on board with the new policy, claiming that there is now an “urgent need to cap oil emissions.” This reversal is intellectually incomprehensible. I therefore propose some basic questions, some of which will necessarily answer themselves. But I do provide some limited comment.

  1. If, as the board has argued before that all emissions are created equal and carbon pricing is the one, market-based, and comprehensive tool for reducing them, why does the board now argue for what it previously derided as “industrial strategies” and “government micromanagement”? 

[Somewhat similar to the board’s previous arguments on the essentiality and sufficiency of carbon pricing, the majority of the Supreme Court of  Canada in Reference re Greenhouse Gas Pollution Pricing Act found that carbon pricing was “integral to reducing GHG emissions” (at para. 170) when holding that the federal carbon pricing scheme was narrowly tailored to pass constitutional muster under the national concern doctrine of the POGG clause. The majority was induced to accept the legislation on the basis that it was, as the Concise Oxford puts it, “necessary to make the whole complete” or “fundamental.” We leave it to be analyzed elsewhere whether the Court’s majority might not now grow queasy about using POGG for this clumsier and less rational incursion into provincial waters.]

2. Why does the scheme target only one industry? Does targeting one industry possibly give political advantages to some unscrupulous political actors?

3. If, as the board alleges, the demand for oil and gas will largely disappear (and thus, impliedly, Canada will not suffer any substantial harm from reducing its own industry), why must the federal government intervene to cap the industry at all? Is one purpose of the program to have the government save the industry from itself?

[The board’s suggestion that markets will disappear is clearly not in accord with any reputable estimates. It neglects continuing world-wide demand as the developing world climbs out of poverty and there are no other energy sources or infrastructure available. See, for example: Why the energy transition will be so complicated and We need to be honest about how long the energy transition will be.]

4. Why must the government try to outthink the market? Specifically, how will government regulate the industry better than the market? And what will take the place of Canadian supply, either internationally or domestically, when the government regulates a reduction faster than demand? And if it is not going to regulate a reduction faster than the market (and a substantial one at that) what is the need for the reducing cap? 

5. Is there any real distinction between emissions and production as the board insists upon? When the government’s stated goal is to cap all oil and gas emissions immediately at current levels, with reduction targets for 2025 and 2030, on the way to obtaining net zero emissions by 2050, are there not going to be substantial cuts in production as opposed to just emissions? If not, will say, reducing a few leaks in the production process satisfy the government?

6. If the goal is to actually save the planet as the board implies, how will reducing Canada’s supply of oil and gas reduce net world emissions of GHGs? Would the scheme not just simply offshore emissions instead?

[Throughout the editorial, the board refers to the need to meet “national targets” for oil and gas as rationale for the cap, with no consideration of the unique nature of it in world commerce. The board allows for no flexibility. The transition must be very simple – only a one-way ratchet downwards, according to it. The board necessarily assumes that reducing Canadian oil and gas will reduce world emissions. 

But the international mitigation scheme under the Paris Agreement is structurally flawed, not reflecting the realities of such things as the collective action problem, the dynamics of world energy production, and carbon leakage, some of which are outlined by William Nordhaus in The Climate Club: How to fix a Failing Global Effort (May/June 2020). (Nobel-winning economist Nordhaus says the present international mitigation scheme under the Paris Agreement is doomed.) Canada’s goals are an imperfect realization of that imperfect super-structure. Any targets, which are self-created under the “Agreement,” are thus only superficial markers not reflecting a reality-based method to reduce world emissions. Editorial boards would do well to resist making dire predictions resulting from the failure to meet ‘national goals” in oil and gas, turning Canada into a chump nation.]

7. Does the board disbelieve the proposition that increasing the Canadian supply of gas will be beneficial for climate change? For example, might it not actually decrease the amount of coal used world-wide and thereby lower world-wide emissions? Or that Canadian oil and gas is cleaner than that provided by other countries? Or does it disbelieve, as argued by Björn Lomborg, Michael Schellenberger, and others, that reducing energy poverty generally in the world through fossil fuel use reduces poverty itself, thereby increasing the resilience to weather?

I am obviously under no illusions that the board would ever endeavour to answer these questions. The Globe itself seems now to have adopted a particular marketing scheme for pumping drastic climate change action in Canada. And I assume that the board, as evidenced by this uncompelling reversal in its editorial position, has simply fallen into line. 

Silencing Voices on COVID is Censorship even if Government is not Leading the Charge

Below is my draft letter to the editor of the Globe and Mail, which was not accepted for publication. It is in response to an opinion by a law professor, no less, who advocated in the Globe for the media to shut down discussion on an important public matter, based of course, only on the “science.” This is a scary trend in our civilization. In our country, the federal government is proposing to set up a prior restraint mechanism to keep “misinformation” off social media. 

Science is a process-based method, challenging hypotheses. The only way to find the truth is to allow for robust debate. The treatment of Galileo’s can occur in our times as in times past. Groupthink, power, and ideology still prevail to warp bien pensant opinion.

Read the actual opinion by the professor and note the ways in which he attempts to evade that he is calling for censorship or to limit freedom of speech. For example, he says: “But being shown that you are wrong isn’t censorship.” However, he is not trying to show how others are wrong. He is in fact engaging in cancel culture, contradicting the very headline that the editor wrote for him. There can be no other purpose for his writing the op-ed.

(For a very good summary of how the elites got a lot of the COVID battle wrong and squelched alternative views in the UK, see: https://www.spiked-online.com/podcast-episode/why-i-spoke-out-against-lockdown/)

Here is the draft letter:

Re Correcting COVID Misinformation Does not Equate to Cancel Culture (Jan 14)

Professor Caulfield is likely right that there are no latent dangers in vaccines. They should be encouraged – temperately.

But his goal isn’t merely to engage in debate to counter misinformation. Rather, he is asking the media to cancel those voices that do not reflect a certain consensus: “Giving air time to fearmongers and contrarians pushing lies … doesn’t facilitate a constructive dialogue. It does harm…”

He claims that free speech and science are not endangered if they are policed beforehand. But that cannot obviously be the case with free speech, which exists only without prior restraint. And also so with science, which is only ever provisional. There can be no halfway house between full debate and censorship. 

And who will determine where the lies lay? The “science” has been atrociously wrong now on this mostly futile two-year’s effort. That “misinformation” has been abetted by social media, which has squelched debate on lockdowns, masks, and origins.

No, we need full debate. Heaven help us should the courts ever join in with the media and the universities to reject what Jonathan Rauch has called the Constitution of Knowledge.

Canadian “childrens'” climate change case in La Rose v. Canada summarily dismissed in Federal Court

As a further update to previous posts on climate change Charter claims, we note that Justice Manson of the Federal Court of Canada recently dismissed on a summary basis one of the Canadian childrens’ climate change cases in La Rose v. Canada on the basis that the matter was non-justiciable (not appropriate for judicial determination) and did not disclose a reasonable cause of action either under section 7 of the Charter (undue breadth and diffuse nature of the claim) or under section 15 (failure to disclose a distinction on the basis of state action or law).

The Judge said:

“[T]he diffuse nature of the claim that targets all conduct leading to GHG emissions cannot be characterized in any way other than to suggest the Plaintiffs’ are seeking judicial involvement in Canada’s overall policy response to climate change.”

Some of the reasoning echoes comments we have made in earlier blogs. Although the decision appears definitive, I would not expect the parties behind this action to throw in the towel now. We can expect appeals to higher courts.

Democrats at the Blockades? The Rule of Law Precludes Political Discretion in the Enforcement of Court Orders and Public Order Laws

We are all slaves to the law in order that we may be free.

Cicero

 

Introduction

During the three-weeks’ long February blockades in Canada, Globe and Mail columnist Andre Coyne made some extraordinary claims about the Rule of Law in “The rule of law is about more than rules, or law.” Failing to enforce court orders and public order laws would not contravene the Rule of Law because, according to Mr. Coyne, timely enforcement actually represented a “cramped understanding of the rule of law’s foundations.”

“The rule of law does not consist,” he said, “only in legal texts or the courts and police that apply it.” Rather, the executive must determine before enforcement whether there is sufficient willingness among certain segments of the public to abide by the law in question:

For a law to have any meaningful chance of enforcement, it must enjoy the support or at least acquiescence of a substantial majority, whether of the population or sub-population.

In the case of the blockades, Coyne claimed that the future possibility of a sufficient lack of assent by a large number of indigenous people should enforcement go badly (“an ‘attack,’ as it might be perceived, on some members of a community can all too easily be seen as an attack on all”) required that the authorities hold off in enforcement. Where most of us might want our rights to be inoculated against political considerations, Coyne contended for the opposite: “The ways in which the legal and political spheres inform each other are often overlooked.”[1]

We must recognize this popular assent or democratic participation argument (I’ll call it the assent argument),for what it is. It is not just nervousness about enforcement.[2] Rather, it is an attempt to provide an intellectual basis for inaction and delay in the enforcement of the law. The assent argument is just another version of the we must allow disobedience of the laws to uphold the Rule of Law argument of some activist lawyers and social justice academics.

Coyne’s formulation stands the Rule of Law on its head. No longer is the Rule about executive accountability to legal authority. Now it is a demand for the executive to regulate the legal side and direct its policing arm to avoid enforcing court orders and the criminal law. It is directly contrary to Coyne’s rightfully indignant Rule of Law opinions in the Globe last year on the SNC-Lavalin criminal prosecution, dealing there with political interference in its prosecutorial arm, or more recently in his writings on the Meng extradition case (where he seemed rather more sensitive to the consequences of rewarding extortive behavior).

While democratic decision-making grants legitimacy to the Rule of Law, and is of necessity in enactment of laws by the legislature, assent cannot be an element in enforcement of the laws already passed by the legislature or after adjudication by the courts. Granting the executive the right to second-guess on enforcement would lead to anarchy in the legal system, which is obvious from Coyne’s inability to give us the sense that he has any workable alternative resolution to timely enforcement of court orders and the criminal law:

By contrast, patience on the part of the authorities – not capitulation, but patience, goodwill and, where possible, negotiation – is likely to maintain the support of the larger section of indigenous opinion. This places a similar constraint on their antagonists on the barricades: In the battle for the middle ground, whichever side appears the most reasonable has the best chance of winning.

Best chance of winning what? Who gets to participate? Who decides? How will enforcement eventually occur? Why is the “winning” to be decided later rather than sooner? (And what about the rest of us who are having our rights infringed during this stylized dance between politicians in the executive and law breakers?) We can see no indication that Coyne’s route, whatever it might be, has any of these answers. Like its vague liberal cousin, social license, we cannot know how popular assent to enforcement is ever to be determined and enforced.

Why is the doctrine of assent unworkable? Because it infringes some conditions very fundamental to the Rule of Law and our legal system. Politicians determining supposed assent and deciding to hold off in enforcement requires casting off the separation of powers and judicial independence, the courts becoming mere counsellors to the executive. When public order laws are not enforced because of assent and political discretion, citizens lose their freedoms and the expectation that the state will protect them. Those that cannot succeed before a judge or the ballot box are encouraged to organize a mob.

***

I want to more fully examine the Rule of Law and to outline the processes that we have set up to comply with its principles so as to show why our system cannot support a theory of popular assent at the enforcement stage.

I will not be here arguing Coyne’s conjecture about the possible lack of overall indigenous support for enforcement, nor of the foolishness of negotiating enforcement with law breakers, although that seems self-evident to me. Nor, do I intend arguing how placating and negotiating with lawbreakers, in itself, will diminish the rule of law to those who are law-abiding, although that, as well, seems self-evident.[3] And I will not be arguing the co-optation of the protests by urban environmental activists in many of the urban blockades, or indeed of their co-optation of the police, which was so demoralizing to the rest of us.

My argument rather is that the executive has no discretion to avoid enforcement. There is no place for perceived assent in the Rule of Law and the law itself must be assiduously enforced.

Before examining the principles behind the rule of law and the structure of our legal system to incorporate them, I would like to first review the facts of the blockades before touching on the types of law, which ought to have been properly enforced.

Background Facts

The blockading of railways, highways, bridges, ports, arterial thoroughfares, and even a legislature, occurred throughout Canada for some three weeks in February causing major impositions upon ordinary Canadian citizens, including lost wages, lost revenue, missed medical procedures, and the like. The actions caused considerable damage to the Canadian economy and investors indicated their intention to withdraw any future investments in Canada. The blockades engaged both federal and provincial authority.

The initial blockade occurred during the construction of the Coastal GasLink project in northern British Columbia. The project, approved after consultations with the Wet’suwet’en peoples, were opposed by some claiming to be Wet’suwet’en hereditary chiefs. After a full hearing of the issues, during which counsel for the hereditary chiefs tried to make their case, an injunction order was granted by Madame Justice Church of the British Columbia Supreme Court. The RCMP finally moved then to enforce the rights of Coastal. Thereupon many sympathy protests broke out throughout Canada, some led by indigenous groups, but many clearly coordinated by urban environmental activists, whose motivations were to send a chill over natural resource development.

Protestors used coercive tactics. They also co-opted and manipulated the police to their benefit, the police threatening to arrest citizens who wished to exercise their liberty rights to proceed unimpeded, while doing nothing to remove the law breakers or their obstructions, as they had clear legislated power to do (under sections 30 and 495 of the Criminal Code), even without court orders. Major rail lines were shut down in central Canada, with major indigenous participation. Ports were blockaded, as was arterial access to many important necessities such as hospitals. Courts throughout Canada issued orders to have the blockades and obstructions removed, based upon centuries-old precedents.

But no action was taken for weeks. Although some Canadian jurisdictions lack a clearly defined structure for civilian or democratic control over policing, it cannot be said that the police are not accountable to the public for their control over public order. Throughout the ordeal, it was clear that politicians in different governments, and some in the police command, lacked the will to ensure the proper use of existing police powers or those powers (and directions) under various superior court orders. These decisions were based upon not upon any operational requirements but rather simply upon political considerations.

A very impatient populace soon demanded politicians to require the police to protect the general public. Many politicians tried to escape accountability, (although one or two provincial jurisdictions acted reasonably well), claiming improperly, and perhaps disingenuously, that they had no power to direct the police. And some government ministers on the left maintained that the right to protest includes the right to obstruct others.

Eventually, “negotiations” did occur, and the problem dissipated with a jerry-built compromise on indigenous governance between the minority Wet’suwet’en hereditary chiefs and the federal and British Columbia ministers negotiating with them, without consulting with the democratically elected leaders of the Wet’suwet’en people. But it will surely arise again when that solution ultimately breaks down, and also when other natural resource projects come on-line in the future. For blockades and general lawlessness work in today’s Canada.

A Note on Public Order Laws and Indigenous Reconciliation

 It is necessary to get some perspective on the types of laws in question. By Coyne’s referencing of prohibition laws and the Quebec Secession Reference case,[4] some might be left with the impression that the laws being enforced were either somewhat controversial, perhaps dealing with indigenous governance issues, or, those involving more grand issues of a constitutional type, involving the adhesion to one particular polity.

But actually, the laws that were sought to be enforced were only common-place tort laws and public order laws, of equal application, supporting the right to be free of the obstructions of others, universally found in free societies. These types of laws should be acceptable to any group of citizens, or sub-group of citizens. The only exception occurred in the original BC Supreme Court Coastal GasLink application involving obstructions to construction of the pipeline. There, the Court rejected the hereditary chiefs’ claim of hereditary governance rights in answer to their tortious conduct. They chose not to appeal, and they chose to disobey the Court’s order.

The issue of political adhesion is a non-starter. There can only be one system of plenary courts in Canada and any questions of the reconciliation of indigenous communities to overarching Canadian sovereignty can only be handled within the existing Canadian system.

The Rule of Law does not guarantee the perfection of Utopia or that there cannot beunjust laws.[5] There is much to be unhappy about in how indigenous peoples have fared under our system. But as we shall see, the Rule of Law provides a peaceful means by which to solve our problems through the courts and the ballot box.

The Rule of Law

The Rule Undergirds the Constitution and Is the Responsibility of All of Us

The Rule of Law is a principle undergirding our constitution and system of government. It has received explicit mention in the preamble to our Charter of Rights and Freedoms and more importantly, implicit acceptance in the preamble to the Constitution Act, 1867: “…with a constitution similar in principle to that of the United Kingdom.”[6] The Supreme Court of Canada has called it “a fundamental postulate of our constitutional structure.”

But it is not only important as a tool of lawyers and litigants but rather, also, and more crucially, as a “working political idea” (in the words of Jeremy Waldron[7]), a basic principle to be insisted upon by ordinary citizens in their demands of their political representatives for a certain structuring of our system and restraints within it. For, the Rule of Law is also the result of political settlements over the centuries[8] and is as much the right of common citizens to map out its fulfillment as it is for the judiciary or the academy. It is only through political will, and not through court action, that it will be maintained, and our citizens and society kept safe, stable and secure. We have, over the many centuries, used the principle to construct an elaborate system where power is separated and coercion is restrained by rules.

Attempting to Define the Rule of Law

Although the Rule is a somewhat elusive notion, and is subject to ideological abuse by those arguing it as a basis for political values of their own,[9] its outline and practical effects can readily be determined. Albert Venn Dicey gave a general sense of it what it is about:

… the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of the arbitrariness, or prerogative, or even wide discretionary authority on the part of the government.

We need to be protected from the “unpredictable vagaries of other individuals – whether monarchs, judges, government officials, or fellow citizens.”[10] Our Supreme Court in Re Manitoba Language Rights confirmed that the Rule of Law means that we will be free from discretionary[11] and arbitrary power:

[T]he rule of law means that the law is supreme over officials of the government as well as private individuals, and is thereby preclusive of the influence of arbitrary power.

The best all-round short summary of the elements contained in the Rule is provided by Sir Roger Scruton in his Dictionary of Political Thought:

The form of government in which no power can be exercised except according to procedures, principles and constraints contained in the law, and in which any citizen can find redress against any other, however powerfully placed, and against the officers of the state itself, for any act which involves a breach of the law.[12]

Jeremy Waldron provides good a summary of some aspects of the Rule of Law:

But the Rule of Law is not just about government. It requires also that citizens should respect and comply with legal norms, even when they disagree with them. When their interests conflict with others’ they should accept legal determinations of what their rights and duties are. Also, the law should be the same for everyone, so that no one is above the law, and everyone has access to the law’s protection. …

Secondly, legal institutions and their procedures should be available to ordinary people to uphold their rights, settle their disputes, and protect them against abuses of public and private power. All of this in turn requires the independence of the judiciary, the accountability of government officials, the transparency of public business, and the integrity of legal procedures.

The Rule Really is About Rules and “Law and Order”

To accomplish the rule of Law, we need, contrary to Coyne, rules – and lots of them in – and an unwavering attention to follow them, come what may. Although some would suggest that the rule of law is not about “law and order,” it actually really is about just that. In the Quebec Secession Reference, The Supreme court of Canada said:

“[T]he ‘rule of law’ is a highly textured expression, importing many things … but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority.” At its most basic level, the rule of law vouchsafes to the citizens and residents of the country, a stable, predictable and ordered society in which to conduct their affairs.

And in Re Manitoba Language Rights, the Supreme Court said:

Law and order are indisputable elements of a civilized life. …the rule of law expresses a preference for law and order within a community rather than anarchy, warfare and constant strife.

It is fair to say then, that the Rule requires peaceful means to settle disputes through a complex web of rules – what we call laws – and does not countenance, and indeed, must penalize, attempts to use force outside the law.

Some Conditions for the Rule of Law

Much has been written on the necessary conditions for the Rule of Law. We mention just two.

First Necessity: A Separation of Powers, including an Independent Judiciary

It is not enough for a constitution to declare that that the law is supreme, for many Soviet era constitutions did that as well. It must also be possible for any citizen, however placed, to enforce that law. Rights cannot be rights if subject to arbitrary enforcement by the executive. This leads obviously, as mentioned in the Waldron quote, above, to the necessity for a separation between the executive and the judiciary[13] and for judicial independence. These came as part of political settlement only after long historical struggles. Judicial independence was confirmed in the English Bill of Rights in 1689, which is implicit in our own constitution.

Judicial independence is thus essential, both theoretically, and as a result of constitutional settlement. But it is meaningless if the judiciary’s orders cannot be impartially enforced.

At one time, before the creation of the police services, court orders were enforced in different ways (and much beyond my competence to detail), such as by direct court appointment of court sheriffs or of bailiffs. Now, it is more convenient for the police services to handle some of the requirements to enforce court orders. But having obtained the added duty of enforcement, the executive must not now encroach upon the judiciary with its own political concerns.

In the case of the blockades, courts had made determinations that citizens were being obstructed in their freedoms. The courts, as always, considered the timing when the rights ought to be enforced. Timeliness is a matter for the courts, not the executive. We all sense the truth that justice delayed is justice denied. Yet, the executive, made up of government politicians and the police command, determined, in the case of the blockades, to avoid enforcing the orders, not because of operational requirements, but because of political considerations.

Second Necessity: Positive Laws for Public Order

A second condition that is necessitated by the Rule of Law is a web of public order laws. Sir Roger Scruton says :

In conditions of social collapse, or widespread terror or intimidation, a rule of law will no longer be possible; hence a rule of law requires laws of sedition and public order through which it may be upheld against the busy subversion of the lawless.

The Supreme Court of Canada agreed in the Manitoba Language Rights case:

Second, the rule of law requires the creation and maintenance of an actual order  of positive laws which preserves and embodies the more general principle of normative order. Law and order are indispensable elements of civilized life.

So, it is clear that in order for there to be a Rule of Law, the state must positively set up an apparatus of laws, and enforcement of them, to protect against the vagaries of others – to provide us with peace, order and good government. It does so through the common law and the legislature.

What form did public order laws take in the case of the blockades? Generalizing, there were two main categories. The first is through the common law tort remedies for trespass against the person, such as assault, enforceable through the courts by injunctive relief. The second are criminal law enactments, involving the old breach of the peace prohibitions, such as various forms of assault, intimidation, and mischief, enforced through police powers.

Since the time of British Prime Minister, Sir Robert Peel, in 1829, organized police forces have enabled a clearly more peaceful and safe society, allowing citizens to give up self-help remedies. To a large extent, we have come to give up our own initiatives to maintain our freedoms and to rely upon the police. We have a very different society because of that. We rely upon executive’s promise to routinely protect us.

Although many Canadians instinctively refer to the Charter of Freedoms as being the fount of their liberties, it is the non-textural constitutional law, as instantiated through the Rule of Law and public order laws, starting centuries ago, that is one of the greater guarantees of our every-day freedoms. And we will maintain our liberties, not so much by litigating our rights in the courts, as through holding our politicians to account, asking them consistently to uphold an inflexible rigour in the enforcement of the law.

Both of these types of public order laws – tort laws and the criminal law – obviously rest on an across-the-board impartial enforcement of the rights they contain by the executive, which means through semi-independent, but not unaccountable, police forces.

In the case of the blockades, both types of laws came into play. Citizens, whose rights had been impeded, sought injunctive relief for civil wrongs committed against them. The courts issued relief. And criminal offenses occurred in the thousands, if not more. The police, restrained by the executive, and their own command, didn’t do their job in enforcing the tort remedies or the criminal law.

Two Conditions of the Rule of Law Unsupported by the Executive in the Blockades

So, in conclusion, two conditions for the Rule of Law were infringed in the case of the blockades. First, the executives of various jurisdictions, disrespected, to a great extent, the independence of the courts by not enforcing in a timely fashion the many orders issued. The courts determined that citizens’ rights would be infringed if relief was not provided promptly. Without a remedy, obviously there is no right.

Second, the Rule of Law was denied in refusing to utilize the criminal law to uphold the liberties of citizens. Countless breaches of the criminal law occurred. Not only were law breakers not removed, but most did not suffer any consequences at all. This will encourage further law breaking in the future and demoralizes the law-abiding. It will diminish our liberties. It will lead to loss of prosperity.

The Tenet of Non-Discretionary Enforcement of the Law is Absolute and Unqualified

The requirement of the Rule of Law for impartial police enforcement of court orders and of the criminal law is absolute and unqualified. There is no possible way to circumscribe the Rule so as to allow that only certain legal rights be infringed.

We are often subjected to arguments for “exceptions” to the Rule, which are really attempts to diminish its effect, like this one from the Klinck and Mackenzie op-ed in the Globe:

Protesting is how marginalized groups can demand to be heard in the face of systemic injustice. For this reason, we should not be surprised to find that simplistic appeals to the rule of law are often unhelpful: the very problem may be unjust laws.

No public disorder could be regulated under this formulation calling for a suspension in enforcement if someone claims an unjust law or desires new laws. The causes for which the public order laws could be disobeyed are only limited by the ingenuity of cause-driven activists.

Their formulation is not what the Rule is about, at all. The Rule is about peaceful rules-based solutions, no matter what. It’s about appeals to the court and to the ballot box, and not to mob justice.

 ***

All-in-all, the blockades were a setback for the Rule of Law, which we have yet to see the end of. The Rule is, in the end, a political ideal, as well as a constitutional and legal one, and citizens must insist that their politicians rigorously enforce it to maintain the society in which we live.

 

[1] Coyne’s was not the only piece in the Globe on the blockades that called for political considerations to subsume the law. Shortly afterwards, a more expansive appeal to political intervention was authored by two lawyers, Klinck and Mackenzie, under the title of Why Protests Matter for the Wet’suwet’en Resistance:

…To respect freedom of peaceful assembly, governments and the community must tolerate a degree of disruption, because it is the disruptive nature of public protests that amplifies their messages. The location of protests may be particularly significant even though, or specifically because, it compounds public inconvenience; in this case, targeting major transportation routes conveys opposition to the idea that economic development must always trump Indigenous rights.

Even when a protest exceeds constitutional protection, the purpose of freedom of peaceful assembly helps to define the lawful state response. Peaceful assembly rights are not typically interpreted to include physical obstructions (unless incidental to the right to be assembled in a particular place at a particular time). Nevertheless, law enforcement’s response must be proportionate and seek to uphold, not suppress, peaceful assembly.

Finally, freedom of peaceful assembly often operates where law ends and politics begin. Protesting is how marginalized groups can demand to be heard in the face of systemic injustice. For this reason, we should not be surprised to find that simplistic appeals to the rule of law are often unhelpful: the very problem may be unjust laws. (emphasis added)

The dynamic political power of freedom of peaceful assembly is that, through it, demonstrators can garner public support to change the law. The government has opted for dialogue and limited enforcement of injunctions because that is what a critical mass of the public believes is right. This is what the freedom of peaceful assembly is intended to generate: political engagement on the justice of the (legal) status quo.

As to peaceful assembly (section 2 of the Charter), the authors try to do some hedging but nonetheless it is clear the writers are wrong (“governments and the community must tolerate … targeting major transportation routes”). On the whole, it is clear they are calling for the government to ignore legal determinations on obstructive behaviour.

[2] Coyne: “The vulnerability of Canadian infrastructure to activist hijacking may be annoying, and it may be frustrating, but it is a reality. The tendency of so many conservatives to wish away what is unpleasant to behold, indulging instead in wild fantasies of what is possible by enforcement – the border-crosser issue is another example – is one of the many pathologies currently afflicting the movement.” It seems now that enforcement on the borders only lacked in political will, or more likely there, in ideology. I would suggest that political will was lacking to support the Rule in the case of the blockades as well.

[3] Speaking of the removal by counter-protesters of barricades at a rail crossing in Edmonton, Coyne said:

Neither group was, strictly speaking, acting either inside or outside the law. No court injunction had been issued against the protesters at the time the counter-protestors moved in; the latter committed no violence against the former.

This is wrong. In barricading, the protestors in Edmonton were clearly acting unlawfully, from the outset, both tortiously and criminally. No injunctions were required to establish illegality. (And in fact, the necessity for an injunction seems to be a general misapprehension by many in the media). Nothing that I can see was done unlawfully by the counter-protestors in removing the barricades. Whether the police could have instructed the counter-protestors to stop removing the debris is doubtful as no breach of the peace was being committed. See the SCC in the “Caledonia case” in Fleming v. Ontario, para. 58, et seq. (The only cause for doubt is the fact that the events occurred on private property. It might have been different if the property owners, the rail company, had oddly instructed against removal.) But generally, the counter-protestors’ behaviour appeared to be lawful. Citizens must not be expected to curb their lawful liberty because of the possibility of coercive action from others. Nor do they have to rely upon the police to move about unimpeded. The problem is with the police threatening, so often now in protests to arrest the wrong group of people.

Later in the passage, Coyne claimed the counter-protestors were breaking a “norm.” I have no idea where he might have come up with such a norm. It is contrary, as the Fleming case demonstrates, to our liberties and freedoms.

It is possible that there might have been confrontation at the time, if the counter-protestors became coercive. But the obvious conclusion to draw is that a general lack of enforcement shown by other police forces across the country, which the counter-protestors would have been aware of, led to a breakdown in the Rule of Law. There is no moral equivalence between the two groups. The counter-protestors were not “vigilantes.”

[4] In the Quebec Secession Reference, the Supreme Court merely rendered an advisory decision, setting out the legal framework of Canada’s confederation. Enforcement was never at issue. (Coyne’s claim that Quebeckers have accepted the ruling, not based upon “the threat of force, but the desire to live within a law-based state,” is conjecture and a fact for the future.) Force seems incomprehensible to most of us to hold Canada together, but a state that does not use force when its laws are broken is a state that loses its sovereignty and its reason for being.

[5] Underlying this blog, but not discussed, is my sense that the Rule of Law contains little, if any substantive elements, that is, that it does not fall under one of the thicker versions of the Rule of Law. I believe that as we add more substantive elements to it, the Rule of Law becomes meaningless and not in accord with the beliefs of most people about it. But obviously, constitutional provisions themselves contain substantive content.

[6] See generally Alford, Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law.

[7] Waldron: “Beyond these generalities, it is controversial what the Rule of Law requires. This is partly because the Rule of Law is a working political idea, as much the property of ordinary citizens, lawyers, activists and politicians as of the jurists and philosophers who study it. The features that ordinary people call attention to are not necessarily the features that legal philosophers have emphasized in their academic conceptions.”

[8] Again, see generally Alford, Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law.

[9] Tamanaha, On the Rule of Law, pp. 3-4.

[10] Tamanaha, p. 122.

[11] Lord Bingham devotes an entire chapter on the aspect of discretion.

[12] Tom Bingham, in The Rule of Law (at p. 8) provides a similar definition, although not as comprehensive:

The core existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of the laws publicly made, taking effect (generally) in the future and publicly administered in the courts.

Other very good sources for the Rule of Law can be found in Sirota, “A Citizens’ Guide to the Rule of Law” in Biro, Constitutional Democracy under Stress, and  Jeremy Waldron, The Rule of Law.

[13] Also, in addition to the Judges Reference, see Jeremy Waldron on the Rule of Law and the separation of powers in Separation of Powers in Thought and Practice.

 

 

Update: Heathrow third runway decision does not make cognizable the Paris Agreement

It has been reported in the media, and claimed by Elizabeth May, MP at the Runnymede Conference in March, that a British Court has recognized the Paris Agreement into English law and has quashed the third runway at Heathrow Airport as a result. But reading the case, Plan B Earth – indicates this not to be so. Rather, the court found as a matter of administrative law that the Minister had not properly exercised his discretion in not “considering” the Paris Agreement. The Court said:

238. Again we would emphasize that it does not follow from this that the Secretary of State was obliged to act in accordance with the Paris Agreement or to reach any particular outcome. The only legal obligation, in our view, was to take the Paris Agreement into account when arriving at his decision.

So, it still remains, as we reported previously in our Part 1 posting on a possible Section 7 claim, that the the Paris Agreement is not cognizable domestically. In other words, it will not be recognized by Canadian courts as binding law.

The Paris Agreement does not contemplate “national goals” of blocking oil and gas projects

[Note to readers: this is a considerably revised version of my previous post. It reminds us that cancelling projects such as the Teck $20 B Frontier Project, which has just been “withdrawn,” will result in no savings in global GHG emissions. Canada suffers without saving the planet.]

Politicians and activists, with an obsessive focus upon oil and gas extraction, are moving to cripple Canada’s prosperity by forbidding new projects, in order, they say, to meet “climate goals.” But they claim not, indeed, to be harming Canada, for, according to their calculations, an energy transition is just around the corner, the result of the world uniformly reducing and eliminating the supply of fossil fuels. One proponent, SFU professor Mark Jaccard, said in the Globe and Mail that prohibiting new pipelines and oil sands expansion is “essential to achiev[ing] national and global climate goals.”

But do “global climate goals” really require Canada to abruptly cap its extraction of fossil fuels? Definitely not. Concentrating on supply, proponents of the cap on new projects undertake a simplistic analysis that lead them to create goals of their own making, out of sync with actual market demand for what is a mobile commodity, and out of sync with international obligations. By calling the cap a “national climate goal,” they serve to disconnect Canada from world energy needs, creating instead only artificial, local reductions that fail to reduce global emissions.

Let us look at this more closely. What are the proper global climate goals to which Canada must respond? As befitting the almost insoluble collective action problem of global mitigation, the Paris Agreement of 2015 contains no reduction standards for individual nations. The Agreement simply pleads for global peaking of emissions as “soon as possible.” Developed countries, including Canada, are encouraged to set their own “economy-wide absolute emission reduction targets,” but these are to be created outside the Agreement by each nation for itself.

Paris then, is not really a legal framework. It is merely aspirational. From this shaky footing, different nations have followed their own national interests. Developing countries are pursuing prosperity through fossil fuels. The largest emitting nations are failing to prescribe for themselves any domestic reduction measures whatsoever. Producing nations (other than Canada) continue to produce as before.

Paris reflects the reality that an abrupt transition is not doable. Presently, 81% of world primary energy consumption is provided by fossil fuels, the same amount as in 1991. Vaclav Smil, professor emeritus of the University of Manitoba, has concluded that it is a grand delusion to think that decarbonization can be achieved over the short run. Infrastructure changes take decades. Bjorn Lomborg, quoting the International Energy Agency, has reported that even if every promised national reduction target in Paris is achieved by 2040, fossil fuels will still deliver 74% of total energy.

Deep down, activists too, realize that the world is not fast approaching an energy transition. After all, why would they lobby government to block new projects if the only hardship suffered is that of private investors being stuck with the “stranded assets” of the projects upon transition?

In a world therefore where fossil fuels continue to be used, is it possible that Canada will miss emission targets by constructing new projects?

First, as to fossil fuel exports (which will form the lion’s share of use), international demand will be supplied either by Canada or by some other producing nation. Responsibility for combustion falls upon the consuming nation. Canada can therefore claim no credit for lowering world emissions by halting exports. And indeed, many have argued that Canada can help lower global emissions by exporting oil and gas, which have a lower carbon profile than say, wood or coal.

Second, as to domestic combustion of newly extracted fossil fuels, demand will continue until something else is invented, developed, and commercialized at sufficient scale to replace it. Thus, reductions will not be made by strangling new domestic supply.

Therefore, neither exports nor domestic use will increase emissions. But what of “upstream emissions,” that is, the emissions combusted in the extraction, refining, and transportation for new energy projects? For, according to Professor Jaccard, upstream emissions for the Trans Mountain Pipeline project would amount to the equivalent of “adding 2.2 million average emission cars to Canada’s existing vehicle stock.”

But once again, other producing nations will step in to meet demand if Canada doesn’t. So, although it might be argued that Canada has actually added new “national emissions” (but what new aerospace or car factory won’t do that as well?) the one clear intention of Paris – to decrease net global emissions – is not being met. As a “national goal,” protecting against upstream emissions is a false one. It simply leads to a ledger adjustment, a case of double-counting overall, of no moment in saving the planet.

To get real reductions, if mitigation is the key to climate change, Canada will have to do something other than blocking prosperity-building oil and gas projects.

The Paris Agreement misunderstood: We do not have to shoot ourselves in the foot with “national goals” of halting oil and gas projects

Canadian politicians and activists are moving to cripple Canada’s energy prosperity upon a false belief that the world is uniformly reducing the market for fossil fuels. To them, an energy transition is just around the corner, the result of “climate targets” on the supply of fossil fuels. For example, Green Party leader Elizabeth May said in a recent Globe and Mail opinion piece that, “[i]t would be very obvious that [to meet climate targets] we cannot approve any new fossil fuel projects – anywhere in Canada.” SFU professor Mark Jaccard argued previously in the Globe and Mail that prohibiting new pipelines and oil sands expansion is “essential to achieve national and global climate goals.” The Liberal government has accepted this advice in the past and will be pressed to do so again in the future.

But do “global” and “national” climate goals require Canada to abruptly cap its extraction of fossil fuels? Certainly not. These activists provide a simplistic analysis that leads them to create goals of their own not at all in accord with international realities and obligations. By creating national goals that disconnect Canada from world energy needs, they create artificial goals, falsely claiming that they are saving the planet. They fail in their attempt to nationalize an international problem.

Let us examine this more closely. What are the proper global climate goals to which Canada must respond? As befitting an almost insoluble collective action problem, and what has also been described as a super wicked problem, there are no international reduction standards for individual nations under the Paris Agreement of 2015 and only the vaguest of aspirations. Paris simply calls for global peaking of emissions as “soon as possible” to keep global average temperature “well below 2% C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5% C.” The agreement then leaves it up to individual countries to support that objective with voluntary, self-created “domestic mitigation measures.”

From that foundation different nations have gone their own way meeting their own national interests. Developing countries are pursuing their prosperity through fossil fuels  – as they are entitled to do under Paris. The largest emitting nations are failing to prescribe for themselves any domestic mitigation measures. Demand continues unabated and world markets continue to flourish.

International agreements reflect reality. The Paris Agreement was constructed on the reality that an abrupt transition is not remotely workable and that many of the world’s nations desire to pursue their prosperity. Presently, 81% of world primary energy consumption is provided by fossil fuels, the same amount as in 1991. Vaclav Smil, professor emeritus of the University of Manitoba, has concluded it is a grand delusion to think that decarbonization can be achieved in just a few decades. Bjorn Lomborg, quoting the International Energy Agency, has reported that even if every promised national reduction target in the Paris Agreement is achieved by 2040, fossil fuels will still deliver 74% of total energy.

In a world where fossil fuels continue to flow across borders, where does that leave Canadian national mitigation goals? First, as to fossil fuel exports (and it certainly seems many of the new projects will extract oil for export), international demands for fossil fuels will be supplied either by Canada or by some other producing nation. Responsibility for the emissions of combustion lies with the consuming nation, leaving Canada without any say in their affairs whatsoever.

Second, domestic demand in Canada will continue until something else is invented, developed, and commercialized at sufficient scale to replace it. Until that happens, we might as well supply ourselves. Emissions for combustion will be the same whether we supply it or someone else does. If the private sector is willing to bear the “losses” following upon any energy transition, whether domestically or internationally, they should be allowed to do so.

But what of the so-called “upstream emissions” – emissions combusted in the extraction, refining and transportation processes – for new projects that some activists insist are a reality? According to the report of Professor Jaccard and a colleague, upstream emissions would amount to 8.8 MT CO2e per year for the establishment of the Trans Mountain Pipeline project alone, the equivalent, they say, of adding 2.2 million average emission cars to Canada’s existing vehicle stock. But these do not represent increased global emissions, for they will exist at any rate if Canada does not produce them. As a function of “national goals,” upstream emissions are just simply a case of double-counting, again of no moment to saving the planet.

There is thus no proof that halting Canada’s fossil fuel projects will reduce global emissions. Canadian national goals cannot easily be crafted to meet global aspirations and need to be re-thought. In the meantime, it is best to recognize the failure in the focus on the national to the exclusion of the international.

AGAINST A “STABLE CLIMATE” CLAIM UNDER SECTION 7 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS PART 2 – LACK OF STATE ACTION

This post is the second post in which I am arguing that attempting to regulate the climate by court action using section 7 of the Charter– the right to life, liberty and security of the person – is not sustainable. In the first post, referring to the court case brought in Quebec by the environmental organization Environnement JEUness against the federal government and a similar case brought in the U.S. called Juliani v. The United States, I touched only briefly upon the tremendous remedial problems that would be faced by any court[1], and then dealt with various non-constitutional reasons why a section 7 claim cannot succeed:

1) It will be difficult to prove injury-in-fact, that is, some personal individual injury endangering life, or physical or psychological health, now or in the future;

2) There can be no proof of causation between the injuries said to be occurring, or to occur, and the refusal by any Canadian government to legislate against carbon emissions;

3) Because Canadian emissions are so insignificant compared to world-wide emissions, a Canadian court has no means by which to redress the complaints.

In moving now to discuss the various constitutional issues why such a claim cannot succeed, I deal firstly, in this post, with the fact that there is no state action for a court to set aside and thus no basis to utilize section 7 of the Charter by climate change litigants.

[Readers please advise me what you think of the present format. Is it too unwieldy? Should I instead let the blog run in full, leaving the footnotes for the end as endnotes? For those who might like a slightly earlier PDF version of this post, please access the following link.]

Climate Change Litigation Part 2 – State Action

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[1] I neglected to mention in my last post the work of Professor Vaclav Smil, in particular to his Energy and Civilization: A History, that show that transitioning to new energy systems take decades, if not longer. Thank you to Andrew Roman for reminding me of this source.

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PART 2 – LACK OF STATE ACTION

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Introduction – The Necessity for State Action

 Proponents of the section 7 claim base their request for legal intervention not on any existing common law right, or under any legal cause of action created legislatively, but rather under section 7 of Canada’s Charter of Rights and Freedoms. The Charter is part of the constitutional law of Canada and is of a particular type of constitutional document – a bill of rights– which generally serves only to protect individual civil rights and civil liberties from the power of government and not as call for government to act.

For this reason, it is necessary that a claimant demonstrate some state action – some legislation or action by state officials or others acting under the authority of the laws – to be restrained by reason of an infringement of the rights guaranteed in the Charter. To succeed therefore, a claimant cannot simply say that he lacks legislative protection[2] but rather must locate some affirmative coercive or harmful state action. Failure to act by the government will rarely amount to state action for Charterpurposes in general and section 7 in particular[3].

That the Charter and in particular, section 7, requires that there be some state action follows from the text of the Charter, its legislative history and from the normal role of a constitution in a constitutional democracy [4][5]. “A constitution,”

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[2] Beauchamp v. Canada, [2009] FC 350, at para. 22. A person does not automatically suffer an interference with section 7 interest because of the absence of legal protection.

[3] Stewart, Fundamental Justice: Section 7 of the Charter of Rights and Freedoms, at p. 54.

[4] See Hogg, Constitutional Law of Canada, para. 37.2(h).

[5]We do not go into legislative history (other sources do an adequate job) nor do we now go into “the normal role of a constitution,” which we shall emphasize later in our posting on non-justiciability. On textual correspondence, we would briefly say that both section 7 and the entirety of the Charter supports the necessity for state action to invoke court intervention. The language of section 7 itself indicates this function:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

If no state action has occurred, no deprivation of life or security of the person can have occurred. The phrase “in accordance with principles of fundamental justice” loses all meaning as among matters, without state action, there is no means to make any comparisons. Tanudjaja v. Attorney General of Canada, 2014 ONCA 852 (CanLll), at paras. 27 and 28. There must have been some deprivation by government; inadequacy of the government program is not for questioning by the courts. See in particular Scott v. Attorney General, 2017 BCCA 422, at para. 89.

Additionally, other portions of the Charter would be rendered meaningless without some law or other state action. Determining the limitations allowed under section 1 of the Charter would be unworkable as the limits must be “prescribed by law.” Section 32 – stating that the Charter applies to “the parliament and government of Canada in respect of all matters within the authority of Parliament” would be of no effect. Section 52 remains unavailable as there is “no law” that is inconsistent with the provisions of the constitution,” and to utilize section 24 alone, would seem not to be sufficient.

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affirms Peter Hogg, “establishes and regulates the institutions of government, and it leaves to those institutions the task of ordering the private affairs of the people.”[6]

Fatal to the Charter claim for a stable climate is that there exists no state action for the court to protect against as our energy system is not essentially a creature of government but rather flows from the natural processes of our society to provide for human flourishing.

We shall now more fully examine the possible activity for which state action might be claimed by climate change litigants to show that there is no sufficient state aspect to interdict. After that, we dispute arguments made by proponents to still claim that state action exists – 1) the government permitting argument and 2) the underinclusive doctrine. In the end, we conclude that there is no state action existing and hence section 7 is unavailable to claimants demanding governments to stabilize the climate.

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[6] Hogg, Constitutional Law of Canada, para. 37.2(h).

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The Possibilities for State Action

What are the possibilities for state action for Canadian emissions of carbon dioxide into the atmosphere? We are assisted greatly in our analysis in an article by two proponents for a section 7 claim, law professors Nathalie Chalifour and Jessica Earle[7], who comprehensively list all possibilities that might exist to claim state action[8]. After detailing a number of relatively smaller matters that they claim could be attacked such as pipeline approvals (which are obviously too minor in their impact to be said to cause any Canadians climate injuries) they discuss more substantial targets. We take the liberty of listing from their paper those that show the most plausible claims for state action:

1) The inadequacy of the federal government’s GHG reduction target to reduce emissions by 30% below 2005 levels by 2030[9];

2) The failure of the federal government to meet its international commitments to reduce GHG emissions and avoid dangerous levels of warming;

3) The inadequacy of the mitigation policies under the Pan-Canadian Framework;

4) The whole constellation of government decisions “authorizing and subsidizing fossil fuel extraction, development, transportation and infrastructure that, together lead to unacceptable levels of GHG emissions;”[10]

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[7] Feeling the Heat: Climate Litigation under the Charter’s Right to Life, Liberty and Security of the Person. Ottawa Faculty of Law Working Paper No. 2017-48, available online at SSRN.com. (November 20, 2017) (Chalifour and Earle). As stated previously, I disagree with most of the conclusions in the paper.

[8] Chalifour and Earle, pp. 33-43.

[9] The chosen state action target in Urgenda, supra.

[10] Somewhat similar to the chosen state action target in Juliana, supra.

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5) The inadequate implementation of past climate plans, or the insufficiency of the government’s current targets and legislation, or, where governments have legislated targets, such as in British Columbia, by failure to take steps to meet the legislated targets;

In their discussion of state action, they also list another matter that is not really an activity but rather a framing characterization:

6) Frame the obligation as a duty by government to take action to meaningfully reduce GHG emissions to avoid harm.

The last characterization in item # 6 – that section 7 casts a positive duty on government to act – is of a different kind than those preceding it and really is an admission that there exists no activity that can be seen as state action. We don’t discuss positive rights here but rather, meriting a section of its own, and will be dealt in the post to follow.

Examining the other suggested targets for litigation (items # 1-5) makes it clear is that proponents cannot find any state action to attack. The authors complain variously of “inadequacy” or “insufficiency” of action, showing that their complaint is not against any particular state action but rather with the amplitude of government efforts to mitigate. Activists wish the court to substitute its own judgment for that of the legislature, but that is an improper judicial function. “In carrying out their duties,” Justice Iacobucci has said, “courts are not to second-guess legislatures and their executives on what they regard as their proper policy choice: this is for the other branches.”[11]

As to other matters raised by the list, we have previously shown in our last post that 1) international commitments (item #2), and 2) legislative targets (item #5) are not actionable in our courts. We can additionally say now that there is no

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[11] Iacobucci J. in Vriend v. Alberta, para. 136.

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reason why missing commitments or targets would constitute state action so as to engage section 7. Nor would inadequate “implementation” – as distinct from legislation or policies – give rise to any state action.

There is only one other possible claim for state action that merits further consideration is that touched upon in item #4 –- whether the government regulation of some aspects of our use of fossil fuels, such as issuing permits, is sufficient to constitute state action.

Government Permitting is not State Action

 “They assert that government is really everywhere, even if by facilitation or     abstention.”[12]

Proponents suggest that the requirement for state action can be met by the fact that governments are engaged in considerable regulation of the energy industry. This argument is echoed (in part) by Chalifour and Earle[13]:

It would be more compelling [to determine what state conduct to challenge] to focus attention on the network of policies, plans and decisions that have the cumulative effect of causing harm. For instance, the Canadian governments routinely grants permits and licenses authorizing activities that emit GHGs, such as oil and gas extraction projects, refineries and pipelines.

Something of the same claim has also been made by Professor Linda Collins, although not specifically in respect to climate change but rather to environmental harm generally under section 7[14]:

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[12] Peter Hogg, Constitutional Law of Canada, para. 37.2(h).

[13] Chalifour and Earle, Feeling the Heat, p 33.

[14] Lynda M. Collins, An Ecologically Literate Reading of the Canadian Charter of Rights and Freedoms,(2009), 26 Windsor Review of Legal and Social Issues, 7, at pp. 17-18.

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Second a government may create environmental degradation capable of infringing Charter rights by affirmatively permitting private conduct that causes environmental harm. Facilities that discharge contaminants into the Canadian environment are subject to a complex web of municipal, provincial, and federal statutes and regulations requiring specific permitting of polluting activities. Where a government agency issues a license, permit, or certificate of approval specifically permitting a particular environmentally harmful emission, discharge, or course of conduct, there is no doubt that government action has occurred and that the s.32 [of the Charter] requirement is met.

Third, a government may create environmental harm by setting statutory and regulatory standards that allow for the emission of harmful levels of contaminants. … In all three scenarios, there is clear state action capable of grounding a Charter claim.

This argument states essentially, I believe, that fossil fuel usage is buttressed by a plethora of government regulation, thus rendering the entirety of the activity as state action.

No authority is given in either article for the proposition that mere regulation, in itself, creates state action for constitutional purposes[15]. Again, we must remember that proponents are not attempting to impugn any particular piece of legislation; it is after all not the fact that the government has mandated fossil fuel use. They are saying instead that the mere existence of legislation in a field creates sufficient government control to engage the Charter.

That state action occurs because government chooses to regulate some aspects of activity cannot succeed. The courts are still being asked to second-guess the government. The state could not be compelled by the court by the Charter to ban tobacco products because it regulates the tobacco industry to some extent. Nor could the court oversee infectious diseases merely because the government regulates them. With the degree of state regulation in today’s world there is no activity that is left untouched and this proposition would thus constitutionalize almost all activities, making them subject to court oversight.

[15] Professor Collins’s third matter – setting inadequate standards for emissions – raises something akin to the American state-created danger doctrine but that has been rejected in parts by the Supreme Court. Furthermore, climate change is a case that is far more complex. See generally Andrew Varcoe, Does the Constitution Provide a Substantive Due-Process Right to a Stable Climate System? (2017) Washington Legal Foundation, Online.

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Finally, this permitting argument must be said to have been put to bed by the result in Tanudjaja v. Canada,where government involvement in the housing industry was said by claimants there to violate rights to adequate housing. The court in response said that there was no sufficient legal component to engage the decision-making capacity of the courts as there was no state action or legislation challenged[16].

We therefore conclude that the permitting argument for state action cannot succeed. We proceed to discuss next the last possible argument for state action – the under-inclusivity doctrine.

Not Under-inclusive State Action

 As a last-ditch effort at satisfying the state action requirement, proponents argue that the failure of the government to legislate decarbonization is really an aspect of underinclusivity. In the Vriend and Dunmore cases[17], the Supreme Court determined in section 15 equality reviews that comprehensive legal regimes created by human rights and labour relations legislation that left unprotected certain groups within those regimes that ought to be protected, such as LGBT members, or farm workers, are underinclusive in their coverage and subject to equality protection.

But this argument fails to comprehend that the ambit of the state exercise is different. In the Vriend and Dunmore situations, there are omitted and disadvantaged groups within a comprehensive regime. In the claim for a stable

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[16] At para 27. Chalifour and Earle hold out for a more optimistic result, relying upon the “following important qualification: “this is not to say that constitutional violations can never be addressed, particularly when the issue may otherwise be evasive of review.”” (emphasis theirs), at p. 39, Chalifour and Earle. This is a very faint hope indeed. Tanudjaja, at para. 27, also reminds us that the necessity for state action plays out as well in justiciability concerns, which we discuss in the second next posting after this one.

[17] Vriend v. Alberta, [1998] S.C.J. No. 29, [1998] 1 S.C.R. 1016; Dunmore v. Ontario, [2001] S.C.J. No. 87, [2001] 3 S.C.R. 1016

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climate, there are no omitted groups but rather the government has not legislated at all, or has not gone so far as proponents would want. The latter is not a situation where “the legislature enters the fray, but holds back in one particular aspect.”[18] The legislature has held back fully.

In the Dunmore case, Bastarache J. said[19]:

Before concluding on this point, I reiterate that the above doctrine [of underinclusion] does not, on its own, oblige the state to act where it has not already legislated in respect to a particular area. One must always be on guard against reviewing legislative silence, particularly where no legislation has been enacted in the first place.

We conclude that the underinclusive doctrine does not avail proponents to locate state action.

There thus appears to be an absence of state action, making a claim for life and security of the person untenable. However, suspecting as much, and showing great resilience, activists have called for a free-standing positive duty to be created by the courts from the rudiments of section 7 for something resembling the right to a stable climate, which we discuss next. Claimants for positive rights read bills of rights to not merely prohibit the government from doing certain things but also to contain affirmative commands to governments to provide benefits and protections. As we shall see, positive rights are not generally accepted in our constitutional democracy, so far, and with good reason.

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[18] Diane Pothier, The Sounds of Silence: Charter Application When the Legislature Declines to Speak, (1996) Constitutional Forum, 113, at p. 119. Article cited in Vriend, at para. 60, per Cory J. (joint judgment).

[19] Vriend, para. 29.

 TO BE CONTINUED

 END OF PART 2

Against A “Stable Climate” Claim Under Section 7 Of The Canadian Charter Of Rights And Freedoms – Part 1

Note to Readers: This post is the first part of three or perhaps four posts, which I am condensing from a formal paper I am researching, arguing that a section 7 Charter lawsuit to regulate the climate is not sustainable, as being – loosely put – the judicialization of politics through an expansion of constitutional rights.[1] In the words of Oliver Wendell Holmes, the claim for a stable climate raises “issues upon which elections are won and lost”. I have decided to set out here, much more briefly, why such a claim cannot succeed, not only on those grounds, but on others as well. The footnotes below are perhaps, at times, too extensive for a blog post but are an attempt to provide greater analysis to those who may want it.

Claiming that governments have been feckless, environmental organizations have brought lawsuits in various countries to compel governments to take action to stabilize the climate.[2] Now similarly in Canada, an organization called ENvironnement JEUnesse has brought suit in Quebec Superior Court to compel the federal government to enact measures to limit global warming to 1.5 degrees Celsius by utilizing section 7 of the Canadian Charter of Rights and Freedoms.

Section 7 of the Charter contains a constitutional protection for the life, liberty and security of the person. To date, consistent with the view that the Charter is generally a protection against government and not an instrument by which to require the government to act, section 7 has been used only, with minor exceptions, to invalidate improper state action (that is, anything done by government) that deprives an individual of those interests. In effect, it has some resemblance to the Due Process Clause of the Fifth Amendment to the American Constitution.

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[1]In legal terminology, I am writing about the lack of state action and on the issue of justiciability, as well as other related Charter matters.

[2]The most prominent being Juliana v. United States and the Urgenda case in the Netherlands.

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Indeed, a high profile Due Process Clause climate change lawsuit entitled Juliana v. United States,[3] which is still in the early stages of litigation, can instruct us. There, the relief sought by the Plaintiffs is mind-boggling. They ask for an order directing the American federal government to “conduct a consumption-based inventory of United States CO2 emissions, and use that inventory to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and then draw down excess atmospheric CO2 so as to stabilize the climate,” and further, they ask for the court to retain jurisdiction after judgment “to monitor and enforce” compliance with the plan, all of which is to be done, of course, within a “short window.” The Plaintiffs in Juliana thus are seeking not to invalidate any particular state action, but rather are asking the court to order the government to create and implement a positive plan of action, to be overseen by the court.

Similarly, although they avoid spelling out the full effect of the claim for relief, the Petitioners in JEUnesse intend the court to order a full-scale governmental plan to de-carbonize our economy.[4][5] In other words, they are asking one Superior

* * *

[3]Readers will note at times below traces of American jurisprudential analysis as Americans have much more experience in analyzing constitutional harms. Nonetheless, no Canadian section 7 jurisprudential concepts, I believe, has been contravened as a result.

[4]The Petitioners ask the Court to, among other matters,“[o]rder the implementation of a remedial measure that will help curb global warming.” Note that some writers suggest that a mere declaratory order would be sufficient in a climate change case. Professors Nathalie Chalifour and Jessica Earle argue this in Feeling the Heat: Climate Litigation Under the Charter’s Right to Life, Liberty and Security of the Person (November 20, 2017) Ottawa Faculty of Law Working Paper No. 2017-48, available online at SSRN.com., at p. 62 (Chalifour and Earle). Mr. Justice Lorne Sossin, in his text Boundaries of Judicial Review, 2nd. ed., at p. 247, seems to suggest the same (“… in light of Khadr,the better approach to have taken in the KPIA case would have been to acknowledge the remedial limits on the court and issue declaratory relief.”) Despite his eminence academically,this cannot be right. See Roach, Charter Remedies, in the Oxford Handbook of the Canadian Constitution, pp. 690-692 and Tanudjaja v. Canada, [2014] ONCA 852 (CanLii) (Ont. C.A.) at para. 34, to the effect that generally, a mere declaration is likely to be either unworkable or meaningless.

[5]It is noteworthy for our further discussion on state action, below, that the plaintiffs do not plead section 52 of the Constitution Act, 1982, the supremacy clause.They rely rather only on section 24 of the Charter, which is unlikely to support anything more than personal remedies. It is difficult to see the use of injunctive relief. See generally Regimbauld and Newman, The Law of the Canadian Constitution, 2nd. ed., para. 29.36.

Page 3

Court judge, at the initiative of single-issue NGO litigants, to assume control from our elected representatives over the entirety of our energy and climate policy – and to do a complete remake in the short term[6] of our power generation,[7] transportation and manufacturing sectors[8] – for the impossible task of solving climate change.[9] Although I don’t discount the possibility that the JEUnesse case is merely an attempt to garner publicity, there certainly are other advocates of this type of proceeding who are deadly earnest.[10] Hence, the necessity to set out the remove from reality that such a case presents and the damage that could be exacted upon our constitutional set up if it were taken up.

I start off first by briefly sketching out the nature of a section 7 claim before discussing non-constitutional reasons why claimants cannot succeed – that there is the lack of 1) any injury-in-fact, 2) the means by which a Canadian court can redress the complaint, and 3) proof of causation[11] – after which, I will deal with the constitutional issues that were the original reason for starting my project.

***

[6]The Motion for Authorization appears incredibly to request that by 2030 Canadian emissions be reduced by 50% of those existing in 2010. Para. 2.71.

[7]On infrastructure and the delusion of a rapid transition to renewables, see Transition to Reality: The Prospects for Rapid Global Decarbonization, Robert Lyman, (2019) The Global Warming Policy Foundation. On the argument that an all-renewables power grid is likely not even possible, see Robert Blohm, The New Green Deal’s Impossible Electric Grid, Wall Street Journal, February 20, 2019. Imagine a Canadian judge attempting to answer these incredibly complex transitional questions that must be answered to achieve de-carbonization. Note: it is a tenet of radical climate environmentalism that the transition to a non-carbon future is an easy one and that only the bad faith of profiteers keeps us tied to fossil fuels.

[8]There are any numbers of good books that show the complex interweaving of fossil fuels in our lives. But one that should be acceptable on all sides is Nobel-winning economist William Nordhaus in The Climate Casino: Risk, Uncertainty, and Economics for a Warming World, 2013. On infrastructure and the delusion of a rapid transition to renewables, see Transition to Reality: The Prospects of a Rapid Global Decarbonization, Robert Lyman, (2019) The Global Warming Policy Foundation.

[9]Steven Pinker has said, “given the enormity of the climate change problem, it’s unwise to assume we will solve it quickly or easily.” Enlightenment Now, (2018), at p. 154. And for a good summary of all the difficulties in taking action, see Bret Stephens, Climate Policy Meets Cold Reality,New York Times, December 7, 2018.

[10]There are a number of academic papers calling for the use of section 7 for climate change activism. One comprehensive example is found in Chalifour and Earle, supra. Although this paper contains a comprehensive outline of the issues and some admission of the difficulties faced by claimants in a section 7 Charter climate change action, I disagree with many of its conclusions.

[11]We do not analyze the difficult question of proving the proper levels of emissions necessary to control climate change in the world, much less what should be a Canadian share of that amount. As we shall see later, Canada’s share will have no effect upon climate change, anywhere.

Page 4

The Ambit of a Section 7 Action for a Stable Climate

Section 7 provides in full:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

To demonstrate a violation of section 7, a claimant must demonstrate:[12]

  • There is some state conduct to which the Charter applies;
  • The claimant is a natural person or has standing to invoke a natural person’s section 7 rights;
  • The stated conduct affects the claimant’s (or natural person’s) life, liberty, or security of the person; and
  • The state conduct is not in accordance with the principles of fundamental justice.

The necessity for state conduct and the issue of fundamental justice (items 1 and 4) we deal with later, indeed at some length. The fact of natural personhood and rights (item 2) is not in question. The remaining question is what could possibly be the scope of life and security of the person in a climate change case (the claimants in JEUnesse having quite rightfully dropped any claim for the loss of liberty)?  Or in other words, what do life and security of the person protect or what types of damage can it guard against?

The jurisprudence defining these parameters is limited.  Nonetheless, a life interest would seem to require an increased risk of death. A security of life interest would require either “state interference with bodily integrity” or “serious state-imposed psychological stress.”[13]

***

[12]Hamish Stewart, Fundamental Justice, pp. 21-22.

[13]R. v. Morgenthaler, [1988] 1 S.C.R. 30.

Page 5

Thus, mere environmental damage, absent any serious effect upon a claimant’s life or security of person, would be insufficient to engage the rights. The climate injury must harm in a personal and individual way. We do not accept the suggestion by a number of Canadian writers that an individual’s right to a healthy environment can to be crafted out of section 7, like say, a fundamental right to marriage can be obtained from the Due Process Clause of the Fifth Amendment.[14] Numerous American cases have rejected the creation of right to a healthy environment from the Fifth Amendment and there is little reason to think that a Canadian court would go further with our section 7. Indeed, as discussed more fully below under the topic of state action, a number of Canadian environmental lawyers call for an amendment to the Charter to provide for environmental constitutional protection.[15]

Thus, we contend that claimants must show the probability of some personal individual injury endangering life or physical or psychological health in a serious way. We’ll call this climate injury.

Non-Constitutional Reasons Why a Stable Climate Claim Cannot Succeed

We mentioned above that a stable climate claim would fail on at least three non-constitutional reasons but before dealing with each separate bases, it is necessary to examine each of these three.

Claimants are complaining that carbon dioxide emissions released from Canadian sources, combined with inaction by the federal government, will cause

***

[14]As in the familiar case of Obergefell v. Hodges, which held the existence of a fundamental right to marry to same-sex couples.

[15]See for example Linda Collins, Safeguarding the Longue Durée: Environmental Rights in the Canadian Constitution,(2015) SCLR, at pp. 533-539, where the author firstly argues for a derivation of an environmental right from section 7. She discusses four possible models for achieve constitutional environmental protection: 1) the “existing rights model,” 2) the free-standing independent right to a healthy environment, 3) the free-standing right to a healthy environment as an unwritten constitutional principle, and 4) a constitutional amendment. Professor Collins seems to acknowledge the weakness of the first three options. A fuller discussion follows below under the topic of state action with reference to other writers such as David Boyd and David L.-W. Wu.

Page 6

(the causation) them to suffer a climate injury (the injury in fact) and are asking the court to order steps to remedy it, or more particularly in a case of this type, to prevent it from happening (the redressabilty aspect).

Injury in fact deals with whether there is proof of an actual climate injury. Causation deals with the issue of whether there has been proof that the climate injury has been caused by the Canadian emissions and the failure to regulate them. Redressabilty deals with the nexus between the climate injury and the court’s remedial reach, that is, whether the court can prevent the injury.

There has not been a great deal of jurisprudence from the Supreme Court on these issues. On causation, it has stated, without analysis, that harm under section 7 will not be proved if it is the result of a remote causal chain involving speculative aspects.[16] Furthermore, relevant to both injury in fact and causation inquiries, it has stated that proof of harm requires a real or imminent risk to the life or security of the person.[17]

American jurisprudence, the result of much greater litigation, might have some guidance for us. Generally, it can be said that proof is required in a climate case that the invasion of the legally protected interest be “concrete and particularized” and “ actual or imminent, not conjectural or hypothetical.”[18]

We suggest that claimants will fail on all three grounds. We deal first with injury in fact.

***

[16]Regimbauld and Newman, supra, para. 23.18, citing Operation Dismantle, [1985] S.C.J. No. 22.

[17]Canadian Foundation for Children v. Canada,[2004] S.C.R. 76, at para. 175.

[18]Clean Air Council v. United States of America (February 19, 2019), United States District Court, Eastern District of Pennsylvania (Diamond J.) at p. 7.

Page 7

There is No Injury in Fact

We are attempting to determine here whether there was or will be an injury in fact. We will not be an exhaustive analysis of the issue, but we can say that the uncertainty of climate impacts and their future orientation provides serious, indeed insuperable, problems for claimants.

Whether a section 7 climate injury has or will occur is not concerned with the geophysical changes that occur in the atmosphere (which would likely be accorded sufficient, probable proof in a court of law) or the effects of the greenhouse gas effect resulting in weather events, but rather with the impacts that humans are suffering or will suffer in Canada. But this is not an easy determination. William Nordhaus says of trying to determine impacts:[19]

This subject might seem easier than the deep physics and chemistry of climate change because it is more familiar to us, but the opposite is true. In reality, this task – projecting impacts – is the most difficult and has the greatest uncertainties associated with global warming.

The potential to manage the consequences of climate change is the key question in managing impacts and thus in determining climate injuries. Since high-income countries have hard infrastructure (modern housing, transportation networks, and the like) as a result of carbon-based prosperity, they are enabled to adapt more easily. Furthermore, high-income countries have highly-managed non-agricultural sectors, which allow them “to adapt to climate change at relatively low cost for at least a few decades.”[20][21]

***

[19]Nordhaus, The Climate Casino, pp. 69-70.

[20]Nordhaus, The Climate Casino, p. 3.

[21]Potential damages, when they do occur, are likely to be concentrated in low-income and tropical regions, which is no reason in itself to be generally complacent. Nordhaus, Climate Casino, p. 5. But it does point out the difficulty of Canadian claimants.

Page 8

Even in the agricultural sector in high-income countries, there is nothing over the next half-century or so like the degree of harm that might be necessary to prove a section 7 injury.[22] Indeed:

It is striking how this summary of evidence [from the IPCC] contrasts with the popular rhetoric. The findings are that productivity will increase in many regions for “modest warming,” which generally means up to 3% of local warming. … Even given these uncertainties, the pictures of the [American] grain belt turning into the Sahara desert are posters for persuasion rather than the results of scholarly study.[23]

We conclude that the most that could be said is that in the upcoming decades, and even beyond, there might be some economic costs to us in Canada of adaptation,[24] but economic costs are inadequate to engage life or security of person interests. There can be no concrete, particularized damages occurring on a real or imminent basis.

We cannot expect a court to compel the state to act on generalized, unsubstantiated fears about the impacts in Canada of climate change in creating climate injuries. As an American court said: “A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by agency’s action.”[25]

Thus, we suggest the inadequacy of any proof as to climate injuries such as to engage section 7 of the Charter. There can be no proof of any injury-in-fact.[26]

But even if there were injury-in-fact, there are two other non-constitutional bases upon which the claim would certainly founder.

***

[22]Nordhaus, Climate Casino, p. 90.

[23]Nordhaus, Climate Casino, pp. 83-84.

[24]As there are economic benefits to non-adaptation. We do not even enter into a discussion of the difficulties in determining what proportion of weather events is indeed caused by the anthropogenic part of climate change.

[25]United States v. Students Challenging Regulatory Agency Procedure Act, 412 U.S. 669, 688-89 (1973) quoted in Clean Air Council, supra, at p. 11.

[26]And very certainly none of a substantial nature that could not be overcome by a section 1 balancing.

Page 9

Other Non-Constitutional Reasons for Failure of Claim – Lack of Causation and Lack of Redressability

First, before proceeding to do an analysis on each, we need to get some grasp on the difficulties of solving climate change issues generally. It has unique dynamics. It is like a mass, diffuse tort (or civil wrong)[27] caused by billions of human actors acting over a significant period of time, emitting carbon dioxide into an indivisible atmosphere, only some of which emissions fully account for the change in the climate. This diffuseness and lack of competent sovereignty over the process makes it almost impossible to regulate, whether through the aegis of the nation-state or a court of that state, particularly so where the nation-state’s participation is rather minor.

It is easier to explain the failure of redressability first.

Canadian Courts Cannot Redress the Harm

Canadian courts simply cannot redress the alleged injuries of the petitioners. Although, to my knowledge, the doctrine of redressabilty has only really been formalized in American constitutional law, most any court will want to be assured that any remedial action it orders will stand some chance of solving a problem. Courts are not interested in symbolic gestures.

But as any review of the news and op-ed pages will show, the efforts of Canadians to reduce carbon dioxide emissions (at 1.6% of total world emissions and likely to reduce going forward as a percentage of the whole[28]) will have negligible impact upon the atmosphere since all emissions, wherever originated, circulate world-wide in an indivisible atmosphere. The atmosphere recognizes no sovereignty. There is thus no effect that a Canadian court can have on climate change in Canada, or elsewhere, by lowering Canadian emissions. I do not even need go into the various redressability questions surrounding the court remedying the existing energy infrastructure.

***

[27]Which is not to say that  a tort could be proved; that assessment would involve analyzing the benefits as well as the detriments of fossil fuels. See my previous post on proposals for a Climate-Related Harm Act.

[28]A 30% reduction in emissions, as promised by Canada pursuant to the Paris Agreement, is equivalent to 0.48% of total world emissions.

Page 10

That it’s the “right thing” to do, or that we have made international commitments under the Paris Agreement,[29] would be insufficient to show that a Canadian court order would have any effect on the atmosphere.[30] Even if the international commitments weren’t self-determined, they would not be domestically cognizable – that is, they would not be capable of being tried in Canadian courts.[31] Nor would they, as some suggest, stand as some sort of standard for a Canadian court to pronounce upon.

Thus, a Canadian court would be unlikely to grant relief, as its order would have no effect upon the problem complained of, even despite the huge consternation an order would cause to the Canadian economy and the body politic.[32]

There is No Causation Between the Injuries Complained of and the Refusal by Government to Legislate Against Canadian Emissions

Claimants will have to show that the climate injuries from which they claim to suffer result from and are traceable back to the lack of action by the Canadian government on Canadian emissions.[33]

***

[29]Under Article 4.2 of the Paris Agreement, each country is required to “prepare, communicate and maintain successive nationally determined contributions that it intends to achieve” and then to pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.” There is no enforcement mechanism. See climatetracker.org on failure of almost every nation under the Paris Agreement to meet its nationally determined contributions.

[30]For a vague multilateralist pipe dream on courts acting worldwide in conjunction to solve climate change, notwithstanding the fact of national sovereignty, see Edward Waitzer’s article in the Globe and Mail– How the Courts Can Help in the Climate Change Fight, December 18, 2018.

[31]For an interesting but complex case dealing with the non-cognizabity in the U.K. of the Paris Agreement in the circumstances of domestically legislated emissions targets, see Plan B Earth v. Secretary of State for Business, [2018] EWHC 1892 (H.C. (U.K.)).

[32]These latter considerations would likely play out, along with others, in a section 1 balancing.

[33]See Washington Environmental Council v. Bellon, (2013) 732 F.3d 1131, for a helpful analysis of causation in an administrative law, climate change case where departments of the State of Washington were asked to regulate emissions from the state’s five oil refineries under the federal Clean Air Act. The causal chain there was too tenuous.

Page 11

For much the same reason that redressability cannot be shown, because emissions over time are so diffuse, proof of causation is impossible, as claimants could not show that the amount of Canadian emissions that are to be dispersed in the future are what will be responsible for their climate injuries.  Future Canadian emissions are too tenuous to prove causation for future climate injuries in Canada.

This completes our review of the non-constitutional reasons why a section 7 claim for a stable climate will not succeed. We next proceed to analyze constitutional reasons for the unsustainability for a section 7 climate change action and first up, is the question of state action, or rather, its absence.

***

Note to readers: in the next postings come the issues that are more interesting – and more dire for our democracy and our right to participate in it –  the two related issues of state action and justiciability.

The Petitioners’ claim in JEUnesse is that the Canadian government has an “obligation to implement measures to prevent dangerous global warming” based upon section 7 of the Charter. But there is no state action for the court to set aside. There is, in other words, no governmental action to protect us against. The government, acting on our behalf, has refused to go as far as they might want.

Yet environmental activists claim that we must turn these issues over to the courts to force the government to act. They will, of course, abjure any design against democracy – it’s just, they will say, that climate change is too scary to not be handled by them. Why then, we might answer, shouldn’t the courts regulate other health and safety issues, arguably much more serious and much more likely to harm us, such as going to war, domestic terrorism, or the carnage on our highways?

Single-issue activists are asking the courts to overturn decisions that we have made as voters through our representatives, making accommodations with our fellow citizens and balancing a whole host of issues along the way. I will argue that our constitution does not allow that to happen, nor should it.

                                           END OF PART 1 – TO BE CONTINUED

Radical Environmentalists Must Recognize the Realities of Fossil Fuels

Environmental lawyer Andrew Gage wrote to the Vancouver Sun (Fossil-Fuel Firms Must be Held Accountable –- July 26, 2018) on behalf of 50 B.C.-based organizations to persuade B.C. provincial legislators to enact a Liability for Climate-Related Harm Act, legislation that makes it easier to sue companies that “extract, refine and sell fossil fuels” for the likely costs of climate change (at least $8 billion alone to prepare for rising sea levels by 2100, he claims). The proposed legislation is similar to an Ontario private member’s bill that died on the order paper before their election. Mr. Gage likens the proposed legislation to that enacted in B.C. in 1997 enabling the province to more easily sue the big tobacco companies for health-care dollars.

But fossil fuels are not tobacco. We all derive incredible social benefits and prosperity from them and have adapted their use over the last 150 years into an intricate, complex energy web with enormous infrastructure, interwoven throughout our economies and our lives. No other source is yet ready to replace them. Despite decades of efforts and an enormous amount of governmental monies, fossil fuels continue to supply us, as before, with 80% of world energy needs. Solar and wind remain at less than 2%.

The responsibility for their use is remarkably diffuse. Climate change that is human-induced results from ordinary human survival and flourishing –- “growing food, heating our homes, and even going to school,” in the words of Nobel-winning climate change economist William Nordhaus. Our demands are the cause for fossil fuels supplied by producers. As was said by the District Court Judge William Alsup (a Clinton appointee) in summarily dismissing without trial the lawsuit brought by the cities of Oakland and San Francisco against five oil companies for the same types of cost that concern Mr. Gage (and cited by him as one of the cases which “we can learn from”):

But against that negative, we must weigh this positive: our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all our monumental progress would have been impossible. All of us have benefitted. Having reaped the benefit of that historic progress, would it be really fair to now ignore our own responsibility for the use of fossil fuels and place the blame for global warming on those who supplied us what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?

A similar case brought by the city of New York (also mentioned by Mr. Gage in support of his position) was also summarily dismissed. District Court Judge John Keenan said:

However, the immense and complicated problem of global warming requires a comprehensive solution that weighs global benefits of fossil fuel use with the gravity of the impending harm.

In the language of the law, it might be said that we are all tortfeasors. Why then the singular focus by Mr. Gage on fossil fuel producers? Mr. Gage does at first seem to acknowledge diffuse responsibility: “We’re told that we are all responsible for climate change.” But if this is an admission, it’s an insincere one, for he goes on to argue that only some of the “wrongdoers” –- the producers –- are responsible for the costs. 

A court would normally attempt to locate harmful conduct across the board before attempting to assess common law liability and this is likely behind Mr. Gage’s desire to, as he says, “clarify the liability” of producers with legislation. Indeed, the Ontario bill, which Mr. Gage says is similar to the legislation he is proposing for B.C., provides for strict liability, that is, liability that does not depend on actual negligence or intent to harm: Every party, it says, “engaged in the production of fossil fuels to which a globally detectable level of greenhouse gas emission can be attributed… is strictly liable for climate-related harms.” The benefits of fossil fuels have been hived off from the calculus and a court would not be able to consider them. 

The fix is obviously in – concentrated liability and no consideration for beneficial effects. Why would Mr. Gage possibly think this is fair? I can discern a number of possibilities and mention two here.

The first is that the producers have received –- here’s that dirty word –- profits. “Why,” he asks “should fossil-fuel companies pocket the profits while taxpayers pay for the costs of fossil-fuel pollution?” It’s all a zero sum game to him –- someone wins and someone loses –- and the party that takes away “profit” wins. But we know that this is a labeling game and a false bifurcation. The actual relationship admits of greater complexity where all receive value, whether a return on investment or transportation to the store to pick-up groceries. If there were no benefit to us, we would of course not purchase fossil fuels. 

Profit however, is not an irrelevant consideration, but just not in the negative way used by some environmentalists. In fact, profit provides us with huge social benefits. Without it, little energy would have been supplied. And indeed, the profit motive will likely be instrumental in finding alternative energy sources and carbon reduction techniques in the future.

The second reason for the focus on producers, not unrelated to the first, is that the producers have forced us to use fossil fuels. That’s right! It is an article of faith among some environmentalists that the fossil fuel route is a false one –- that we have had other choices. Thus, we understand his frame of mind when Mr. Gage says, “[t]he alternative is a world in which fossil-fuel companies feel free to keep driving us toward a climate-change cliff…” But this exists in a dream world where renewable sources of energy are ready to replace fossil fuels as our energy of choice. In the alternate universe of the radical environmentalists, the producers have conspired in making certain that no one dares provide us with clean energy. 

Mr. Gage claims that the producers knew as far back as the 1960s that fossil fuels would cause climate change. This is poppycock. Not even James Hansen knew of any problem then. But even if that were so, would it really have been better that the producers stopped supplying us with fossil fuels back in the 1960s? Or, at some later date, like the 1980s or 1990s? Or, even now?

Absolutely not. We need fossil fuels. It is time to see the world in real, complex terms. More informed and reasonable people know the difficulties that are involved in dealing with climate change. There are now no real alternatives to fossil fuels. Pulitzer-prize winning historian Richard Rhodes, author of Energy: A Human History, wrote recently in the Globe and Mail (June 16, 2018):

Energy transitions take time. Across the past 400 years, as the world has transitioned from wood to coal, to oil, to natural gas and nuclear power, the average transition time from zero to 50-per cent market penetration has been about 100 years. Enthusiasts who promote the wonders of new energy sources often fail to grasp that hard truth. … A new energy source isn’t just a windmill or a solar farm. It’s infrastructure and social learning as well.

The fact is clear that we need fossil fuels and will do so for many years to come. It is unfortunate that some environmentalists will not face that fact and will continue to hound those that have provided and will continue to provide us with the miracle of energy. 

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