Edward Waitzer: How the courts can help in the climate change fight [Globe & Mail]

Ed Waitzer - Publications

How the courts can help in the climate change fight


Opinion Contributed to The Globe and Mail / Published December 17, 2018

A Quebec environmental group is taking the federal government to court. ENvironnement JEUnesse filed a class-action suit on behalf of Quebeckers aged 35 and under seeking a declaration that the government’s behaviour in the fight against climate change infringes on their human rights. The claim also seeks punitive damages.

They are not alone. Similar claims have been filed on behalf of young people in other jurisdictions, including the Netherlands, the United States and Colombia.

Understanding and addressing the challenges of climate change is rapidly becoming the next legal frontier. As environmental lawyer David Boyd recently noted, litigation is one of the most powerful tools for holding governments’ feet to the fire and demanding accountability. The same is true in respect to corporate actions. This raises some interesting concerns.

Consider some of the challenges in addressing systemic risks. They are fraught with complex causal chains, with potential triggers occurring at distant points in time, space and degrees of apparent relatedness. Predicting the probability, cost and magnitude of risk, or anticipating where an impact will be felt most acutely, is difficult. Our legal systems are based upon learning through trial and error. This model may not be well-suited to risks where the potential damage is so severe that we may no longer be able to learn a lesson if it occurs.

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