Issues With Climate Change Litigation


There has been a growing trend in North America, particularly in the United States but more recently in Canada with such environmental organizations like Greenpeace and West Coast Environmental Law spurring the movement of climate change litigation against different industries. Right now especially with recent reports from the U.N.’s International Panel on Climate Change and others, there is a lot of alarming rhetoric about the impacts that climate change can have on our population.

The latest of these lawsuits aim to hold oil and gas companies to account for their alleged share in causing climate change and emissions. The ideal outcome for plaintiffs would be that at the end of these suits (when and if there is an end) there would be financial compensation from these companies. In Canada yet there are no cases in courts that are being based for compensation (although Victoria B.C. has been active on possibly pursuing one). However, the suits in the U.S. are being based on certain legal doctrines like public nuisance, trespass, and negligence. Many of them have also been shot down by courts, which have decided that climate change is a question of public policy rather than private law(Read More).

What may be peddled as a noble cause to hold polluters to account could effectively be a cash grab from companies. A perfect example of this is a lawsuit against tobacco companies in the 90’s premised on recovering costs and reduced spending on Medicaid. The plaintiffs were awarded $46 billion dollars and produced savings of less than 1/40th of the tobacco companies’ direct payments. Not to mention, the private firms proposing these legal actions could stand to receive substantial payouts, as was the case in California’s tobacco MSA where firms received over $13 billion in contingency fees.

With any legal case, there can be a complex range of issues when it comes to the administration of justice and or the effective outcome of justice. As Osler  Law(Read More) notes, the causation and proof of loss can stymie the judicial process. Specifically, most emissions come from the end use of oil and gas products such as vehicle emissions and heating, not the operations involved in exploration and production. Furthermore, assigning blame or culpability from emissions (oil and gas vs. agriculture) to certain climate effects is a lofty task.

The U.S. Chamber Institute for Legal Reform(Read More)cites negative consequences associated with municipal litigation. Specifically, municipal litigation puts limitations on settlements when multiple cases are put forward. Business’ only have so many financial resources outside of multiparty suits, smaller individual case claims could continue to be unresolved. In the case of the United States, there is also a shift of power that is traditionally held by the state into the hands of municipalities. This could be a similar scenario in Canada where municipalities are usually regulated under Municipal Government Acts. Of course, there is also the question of whether or not climate change suits will do anything to combat this issue, or if it is simply legal theatrics. These are large scale, global problems and require global solutions.

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