Updated: Jul 7, 2020
By Max Christie
Activists and organizations aim to push for climate policy changes through the political system. Whether by voting for eco-friendly politicians or pressuring officials already in office, these methods have been commonplace in environmental circles for decades. However, in recent years some organizations have used a different tactic for pushing governments and corporations to curb their environmental impact; instead of exerting pressure on politicians in Parliament, activists and organizations are putting pressure on judges through the judicial system (1). This doctrine of “environmental jurisprudence” argues that since climate change poses a significant threat to rights to life, liberty, and property, inaction to combat climate change is the equivalent to denying people such rights (1). Moreover, governments have a legal obligation to reduce the effects of climate change as much as possible (1). Such activism has found some success in recent years, with the most notable case coming in 2015 when the Dutch government was ordered to reduce national CO2 emissions to 25% below 1990 levels by the year 2025, compared to the government’s previous plan of a 17% reduction (2). This success in environmental litigation has led many to wonder if a similar ruling could occur in Canada (3). However, despite the appeal of forcing governments to implement effective climate policy through the courts, there are many hurdles that make this strategy ineffective.
While the Dutch case was a particular example where the courts sided with activists, this may not be the outcome with every judicial system. For example, the United States, which has more climate change litigation than the rest of the world combined, has courts that favour corporations and governments in many cases when it comes to environmental lawsuits (4). In perhaps the most important case for this particular brand of jurisprudence – American Electric Power Company v. Connecticut – the US Supreme Court unanimously ruled that the judicial system does not have the power to supersede federal law when it comes to the environment (5).
Closer to home, the Canadian Supreme Court has previously ruled that Parliament is sovereign when it comes to legislation, including a recent ruling that the Government of Canada is not legally obligated to consult First Nation communities with regard to environmental legislation (6). This ruling, coupled with the fact that Canadian courts often “borrow” legal concepts from the American legal system (as well as British law, which also upholds parliamentary sovereignty), means that courts would not be able to interfere with any particular governmental climate change strategy or lack thereof (7).
So, is a ruling similar to what happened in the Netherlands possible in Canada? With the evidence presented, it seems unlikely, and although the courts are useful for making sure existing environmental law is followed, we cannot rely on judges to mandate that climate action is taken (8). Such action is the job of politicians and governments, and that is why it is important for climate activists to continue their pursuit of climate justice through the political system. By influencing the instruments of government, climate activists can work to build agreement amongst politicians, institutions, and citizens in pursuance of an eco-friendlier future.