Climate Change in Canada’s Courts?

In a recent article, the BBC reported that the United Kingdom Met Office’s chief scientist, Dame Julia Slingo, believes that climate change is likely to be a factor in extreme weather. She said: “…all the evidence suggests there is a link to climate change,” and continued “there is no evidence to counter the basic premise that a warmer world will lead to more intense daily and hourly rain events.” This comes on the heels of some of the worst flooding in recorded history in the United Kingdom.

Closer to home, the floods that ravaged Calgary and Southern Alberta in June 2013, caused at least $1.7 billion (yes, that’s $1,700,000,000.00) in damage and losses making it the most costly Canadian natural disaster on record.

To date, however, climate change litigation has not made a significant appearance in the Courts of this country. The same cannot be said for the United States.

In the U.S., an increasing number of climate change related cases are being advanced at the State and Federal level, with mixed success. Generally, at this early stage of climate litigation, the claims have been unsuccessful. They are, however, requiring targeted defendants to pay significant sums in defence costs.

It must be remembered, also, that tobacco and asbestos litigation took some time to develop before actions became successful. Increased scientific knowledge went hand-in-hand with the increasing success of tobacco and asbestos litigation. Perhaps it is only a matter of time before the generally accepted climate science is accepted in court in game-changing climate change litigation.

The first American climate change case was not commenced until 2004. In American Electric Power Co. v Connecticut (“AEP”) the plaintiffs pursued nuisance claims against American Electric Power Co. and sought an injunction limiting greenhouse gas emissions. The plaintiffs were ultimately unsuccessful. Before long, however, several other climate-change related claims were filed.

As it relates to natural disasters, a notable case stemmed from the aftermath of Hurricane Katrina. In Comer v Murphy Oil USA, Inc., (“Comer”) the plaintiffs were a number of property owners who claimed against a variety of oil and chemical companies, amongst others, for damage caused to their properties as a result of the business activities of the defendants. The court noted a “sharp difference of opinion in the scientific community concerning the causes of global warming” and foresaw evidentiary problems for the plaintiffs.

Of course, subsequent IPCC reports have established that there is an increasing consensus amongst the scientific community on this issue.

In Comer, the plaintiffs’ claims were based upon demonstrable changes in the Earth’s climate as a result of the defendants’ greenhouse gas emissions. For technical reasons, and without getting into the science of climate change (and its evidentiary hurdles), the court dismissed the plaintiffs’ claim.

It can surely be only a matter of time before a significant legal challenge is brought in Canadian courts on the issue of climate change. One could argue that there are 1.7 billion reasons to explore that possibility in the coming months.

In the meantime, we keep our eyes to the south to wait for the next development in this emerging area of law.

By James Early.