Young climate activists’ recent legal victory in a Montana court case shows “climate litigation is progressing in a good direction all over the continent,” according to a young Canadian fighting a similar legal battle in Ontario’s Court of Appeal.
“Knowing that I've been in their shoes before, it almost felt like a victory for us,” said Alex Neufeldt, one of seven young people who has taken the Ontario government to court for rolling back the province’s climate targets.
“I was just very, very proud that they brought this case forward and were successful,” Neufeldt told Canada’s National Observer in an interview a day after the Montana ruling.
“I think it really might change things in a significant way in the U.S.,” she said. “I can imagine myself in their shoes getting a win, and I think it must be just the most incredible feeling, so yeah, I’m really happy for them.”
The Montana ruling found the state mechanism for evaluating fossil fuel permit requests is unconstitutional because it does not allow agencies to take into account the effects of greenhouse gas emissions.
“Montana’s emissions and climate change have been proven to be a substantial factor in causing climate impacts to Montana’s environment and harm and injury” to the youth, the ruling stated.
Danielle Gallant, an Ecojustice lawyer representing the Ontario youth in their court case, called the U.S. win “particularly significant” because governments so often argue their emissions don’t matter compared to those of other jurisdictions. Governments around the world often point to the U.S. as an example, so it's “incredibly important to see a legal win in that country,” she told Canada’s National Observer in a phone interview.
“It will hopefully help shut down those types of arguments that, ‘Well, the U.S. isn't being held accountable, why should we do that here?’”
Youth applicants appeal Ontario court’s dismissal
Right now, Neufeldt and six other young plaintiffs are waiting for the appeal hearing date to be set. It hasn’t been announced, but Gallant expects it will be in early 2024.
The lawsuit was spurred by the Ford government’s cancellation of Ontario's cap-and-trade program and introduction of a weaker emissions target in 2018. Applicants argued the government’s actions threaten youth and future generations’ rights under the Canadian charter because it will cause dangerous climate impacts in the province. In April, an Ontario Superior Court judge dismissed the case mainly on the basis that shortfalls in Ontario's climate plan and targets did not violate charter rights because the plan still reduces emissions. At the same time, the judgment criticized the province’s climate plan, saying it falls “severely short,” and agreed with the young plaintiffs on many issues.
The fact the judge did not dispute any of the climate science and acknowledged climate change is real and the Ontario government’s actions contribute to climate change “sets us up nicely for an appeal,” said Neufeldt.
“It seems like we're headed in a good direction and I feel like I have no choice but to be hopeful,” she said.
Seven residents take on SaskPower and the province
Shortly before the ruling on the Ontario youths’ case, a new climate-related legal challenge began in Saskatchewan.
Saskatchewan and its Crown Corporation SaskPower are currently facing a legal challenge from seven residents who claim government action to expand gas-fired electricity generation violates their charter rights to life, security of person and equality. This is the most recent climate litigation case to crop up in Canada.
The application, filed on March 31 in Court of King's Bench, asks the court to order SaskPower to “set a reasonable target to decarbonize” and to achieve net-zero emissions by 2035.
“SaskPower is going to continue to build natural gas generation that doesn't have any form of additional pollution control like carbon capture. We know that's going to cause more climate change, so is that the government just exacerbating climate change and harming … our applicants? ” Glenn Wright, the lawyer representing the seven Saskatchewan residents, said in a phone interview with Canada’s National Observer.
“We think that violates the charter, and that's what we want the court to rule on. Is this a charter violation or not? Because if it is, we think that SaskPower should be constrained from causing harm to its citizens.”
The focal point of the legal challenge is SaskPower’s two new gas-fired electricity plants, one underway near Moose Jaw, the other planned near Lanigan, Sask.
The first court appearance on June 6 dealt with some procedural matters, said Wright. Now, he expects the other side to file a motion to dismiss the case as not “justiciable,” which refers to matters that are deemed “too political in nature” to be properly adjudicated by the courts. Several previous cases were dismissed right off the bat as not justiciable because they were very broad in scope.
“That's the whole reason why we took a very focused approach with our case” by homing in on the building of these two power plants and how the projects fit into an emissions reduction plan, he explained.
“We're just trying to get the court to answer the question: Is the building of new natural gas generation that causes climate change violating our charter rights?”
'The law itself is having to evolve to this new reality'
British Columbia recently faced a legal challenge from Sierra Club, which alleged the government had failed to present an adequate plan to meet the province’s greenhouse gas emission reduction targets.
The lawsuit was filed in B.C. Supreme Court by Ecojustice on behalf of Sierra Club BC in March 2022 and was dismissed in January 2023. Sierra Club and Ecojustice did not file a notice of appeal.
Sierra Club argued the province’s annual accountability reports on its progress towards emission reduction targets should reflect gaps in the government’s climate plan. These gaps include the lack of plans to meet 2025, 2040 and 2050 emissions reduction targets and the absence of any reference for how multiple new liquefied natural gas projects will align with the provincial emission reduction targets.
Ultimately, Justice Jasvinder Basran ruled the province met its legal requirements to report on its progress toward those targets.
Even though the case was dismissed, it still set an important legal precedent that climate change accountability legislation can be interpreted and enforced by courts when governments fail to meet reporting requirements, according to Ecojustice’s press release on the ruling.
More and more climate litigation cases have made it to the decision phase without being struck down as not “justiciable,” meaning an issue can’t be ruled on because it's “too political in nature” or outside the court’s jurisdiction.
For example, two previous cases against the federal government were dismissed right off the bat because they were deemed too broad.
“Early on, you had a kind of heroic attempt to bring cases that would almost singlehandedly solve the issue in a jurisdiction,” said University of Saskatchewan law professor Benjamin Ralston.
“At the end of the day, courts resolve specific disputes,” he said. “They don't create policy, they don't design it, they … are very resistant to being put in that role.”
More recently, climate litigators seem to be narrowing the scope of their arguments and tying cases to specific actions to avoid being struck down as not justiciable, he said, pointing to the Ontario youths’ case and the case against SaskPower.
“This is a new generation of climate litigation that is more narrowly targeted, but it's also seen more early success,” he said.
Climate change is such a huge issue affecting everyone, but legal issues tend to be really narrowly defined, and “the law itself is having to evolve to this new reality,” said Ralston. “We're seeing a very rapid evolution of law dealing with a rapidly accelerating environmental crisis.”
– With files from The Associated Press
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