What can cities do about climate change?(Part 2, Sue)

And.. continuing from the last post, with another step that Cities can take to do something about climate change..

6. Sue people

Litigation is always a last resort, but is becoming more popular in relation to climate change.

To start, despite the disclaimer which is generally part of this site, (that it is not legal advice), here is some free legal advice no lawyer minds giving: “You’re probably going to lose, and it’s going to cost a lot of money.” That said, you may contribute to saving the global ecosystem and human civilisation.

And although the current legal culture favours business over the environment, specifically climate change, that will change. And every case will contribute to that. Eventually people, and cities, will start to win.

Let’s look at some examples. New York announced a few years ago they were suing Big Oil over climate change. They lost in their first run at it, the “first instance.”

The judge, Judge Keenan, wrote that while climate change “is a fact of life, as is not contested by Defendants. The serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.” What he means is – not the courts, but instead the US House (Senate and Congress) and the Office of the President (seriously). This is the written decision.

However, New York has appealed, filing materials in November of 2018, with briefs to be filed on February 7th, 2019 (you’ll find an update here as soon as they’re available). Five amicus briefs were also filed in November in support of New York.

In the appeal New York is arguing that they do have a common law cause of action to reallocate the costs of climate change, that federal law should not displace the common law, and that dealing with climate change through the courts does not displace the president’s ability to conduct foreign policy. It will be interesting to see how it goes at the Second Circuit Court of Appeals. Updates can be found here, at the incredibly handy Columbia Law School Sabin Center climate change case-law database.

San Francisco, Oakland have also filed suits, as have many others. In an article titled, “[d]espite two dismissals, climate liability lawsuits only just getting started,” Dana Drugmond writes,

When two federal judges dismissed climate liability lawsuits by San Francisco, Oakland and New York City, it wasn’t the end of the road for those suits or others of their kind. But it did highlight the importance to the cities of having these kinds of cases tried in state court.

All three cities plan to appeal, sending their cases into federal appeals courts. The other cases filed around the country were filed in state courts and are in pitched battles to stay out of the federal court system, which is exactly where the fossil fuel industry wants them.

There was a lot of fuss late last year about an unclear announcement that Whistler, BC, was suing a specific oil company. It was later clarified that they were not, highlighting the risks of unclear announcements, and the potential for serious backlash.

Most recently Victoria, BC, has announced that they voted 8-1 in favour of asking the Union of BC Municipalities (UBCM) to examine the possibility of initiating a class-action lawsuit on the basis that the impacts of climate change have already resulted in substantial costs for local B.C. governments.

The city of Vancouver may face a similar motion in the near future, but would follow the example of London, UK, where a “climate emergency” declaration was made. British Columbia’s West Coast Environmental Law is working with cities on the campaign.

Closing thoughts..

In the course of writing these two posts on cities it’s been reassuring to see how much is going on. It could also cause one to reflect on the strength of civic democracy, and what the world would look like in regards to climate change if national democracies were equally sensitive to people’s will.

This circles back to the first post on this blog, on the Rule of Law (more to come on that), and circles forward to contemplating strengthening democracy as a way to fight climate change. Is it as simple as getting money out of politics? Although a good start, there is probably more to it..

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