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
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[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.
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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.
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[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.
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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]
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[12]Hamish Stewart, Fundamental Justice, pp. 21-22.
[13]R. v. Morgenthaler, [1988] 1 S.C.R. 30.
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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
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[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.
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(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.
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[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.
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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]
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[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.
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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.
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[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.
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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.
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[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.
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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]
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[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.
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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.
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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
Briefly Writ 