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 COemissions, 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 COso 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.

***

[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]

***

[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.

***

[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]

***

[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.

***

[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.

***

[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]

***

[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 MailHow 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.

***

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.