Should young people suing their national government over climate change get the chance to tell their stories, and present climate science, at a courtroom trial? That is the question pending before the Federal Court of Canada, which heard arguments last week in a constitutional climate lawsuit brought by 15 youths against the Canadian federal government. The government wants the case tossed, and following last week’s hearing (held Sept. 30 and Oct. 1) the court will now decide if the case gets dismissed, or if it is allowed to proceed to trial.
The youth lawsuit La Rose v. Her Majesty the Queen – the Canadian equivalent of the landmark American youth climate lawsuit Juliana v. United States – claims that the Canadian government is violating youths’ fundamental rights under the constitution through systemic actions that contribute to climate change, such as actions supporting the fossil fuel industry. The youth plaintiffs seek a court order declaring that rights have been violated and an order that the government devise a science-based climate recovery plan to ensure that Canada is not exceeding its fair share of the global carbon emission limits required to stabilize the climate.
This requested order for a climate recovery plan is what ultimately resulted in the dismissal of the Juliana case, which sought the same remedy, one that courts appear to be somewhat uneasy with. The majority panel of the Ninth Circuit Court of Appeals decided in January this year that ordering the U.S. government to develop a plan to phase out fossil fuel emissions is “beyond [the court’s] constitutional power.” Similarly, Justice Michael D. Manson expressed concern during the recent hearing in the Canadian case about the “sweeping” scope of relief, saying it may “go far beyond what this court could be prepared to order.”
This concern aside, Justice Manson seemed receptive to arguments from both sides and floated the hypothetical that he could remain skeptical of the requested relief but still find that parts of the plaintiffs’ claims are valid. He did not make any immediate ruling, and a decision on the government’s motion to dismiss is pending.
Political Question or a Violation of Constitutional Rights?
Canada wants the case dismissed because it argues the youths’ claims are non-justiciable, meaning not something courts can handle. During the government’s argument, attorney Joseph Cheng emphasized that Canada fully accepts that climate change is a problem – but it’s not a problem kids can sue over, according to Canada.
Climate change “is one of the defining and greatest challenges of our time,” Cheng said during his opening. “We don’t disagree that global climate change is occurring and is expected to worsen over time.”
However, he said that the youths’ legal challenge seeking to hold the government accountable is overly broad and outside the bounds of courts.
“You cannot take the entirety of the federal government’s response on climate change and say let’s have a trial to determine if the government’s response is good enough,” Cheng argued.
He pointed to the global scope of the climate crisis and how addressing it involves international negotiations and multiple actors. The lawsuit, he claimed, asks the court to “wrestle with political and ideological questions.” He also argued that the youth plaintiffs’ rights-based claims are “inherently speculative” since climate change is caused by many sources beyond Canada.
Another attorney for the government, Andrew Law, told the court that the youths’ claims that Canada is violating its public trust obligations are invalid. Canada has never formally recognized the public trust doctrine, the government argued. Recognizing it now would “make major changes [in law] that are inconsistent with principles of judicial restraint,” Law said.
Counsel for the youth plaintiffs countered Canada’s arguments by explaining that the case is not as “broad” and complicated as the government portrays it to be.
“At the end of the day our essential argument is this: that when Canada’s emissions of greenhouse gases (GHG), which we quantify, exceed Canada’s fair share of that global carbon budget, then it has breached our clients’ rights,” Joseph Arvay, an attorney representing the 15 Canadian youth suing the government, said during the hearing. He said the youths “know they can’t save the planet with this case,” but that they have a right to seek a legal remedy when their rights have been infringed.
Arvay challenged the government’s key argument that climate change is solely a “political question” that courts cannot address.
“That’s the logic of Canada’s argument, that climate is a matter purely for the politicians, purely for parliament. That can’t be right,” he said.
He further pushed back on the government’s defense that the youths’ legal claims on climate are “speculative” in nature.
“Canada contributes to climate change and that is causing harm to these plaintiffs and to future generations. There’s nothing speculative about that,” Arvay said. “Our clients are suffering harm right now, not future harm.”
Arvay urged the court to consider what is at stake with the climate crisis and to allow the case to go to trial: “Given the importance of this case, and the urgency of this case, what would be the reason to prevent our clients from having a trial?”