Can governments declare a “Climate Emergency”?

We can thank Donald Trump for this question, which should have been obvious. “Can a country invoke legislation designed for emergencies regarding climate change?” He raised the issue of emergencies in relation to his pet-project the “border wall.” But, as many pointed out, the real emergency is our global climate. This post will focus on Canada, but the ideas are likely roughly transferable to other nation-states (although there could be substantial differences in powers granted under emergency legislation and how that fits with constitutional structures).

Do we have legislation which can grant broad powers to the government to deal with emergencies? In Canada the answer is yes, yes we do. The Emergencies Act (R.S.C., 1985, c. 22 (4th Supp.)) was passed in 1988, replacing the War Measures Act.

The Emergencies Act is a federal piece of legislation designed to deal with national emergencies, or emergencies which the provinces are not able to deal with. There is wording in the Emergencies Act which makes it clear that it should not be used if less drastic means would work instead (s. 3).

There are other limits on the powers granted under the Act. One is that Parliament must review any declaration made under the Act by Cabinet, and the other is that the Charter of Rights and Freedoms still applies, and s. 1 (justification of infringement) is the only tool to violate Charter rights.

The key part for our purposes, the “Public Welfare Emergency” is found in s. 5. It is defined as:

public welfare emergency means an emergency that is caused by a real or imminent

(a) fire, flood, drought, storm, earthquake or other natural phenomenon,

(b) disease in human beings, animals or plants, or

(c) accident or pollution

and that results or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency. (bolding added).

Climate change seems to fit that description, at least generally. But, is it acute enough yet? And is it necessary?

On the one hand all we’ve had is some big fires, a bit of heat, and a minute rise in sea level. And we’ve also had some storms which seem bad, but were really only marginally worse than we’ve had in the past, and may pale in comparison to storms to come in the foreseeable future.

On the other hand, according to the World’s leading climate scientists we have eleven years to roll back our carbon footprint significantly. That’s not much time. Even more ominously, many scientists argue that once we hit a tipping point where warming initiates other changes which also accelerate warming, such as melting tundra releasing carbon, and the oceans ceasing to absorb carbon, there is no way to stop the terrifying negative impacts of climate change.

That’s pretty acute, despite life generally carrying on as it has. But maybe not acute enough, and this is simply something to consider for the future.

Is using the Emergencies Act necessary? In other words, how would it, or could it, help? There are two considerations here, one is what is needed to resolve the crisis, and the other is what powers are granted under the Emergencies Act?

As far as what is needed is concerned, the imagination is the limit, But we know some fundamentals – cut fossils fuel use, plant trees, build a renewable energy industry and increase research and development in this area.

What powers are granted for Public Welfare Emergency? They are listed in section 8.

8 (1) While a declaration of a public welfare emergency is in effect, the Governor in Council may make such orders or regulations with respect to the following matters as the Governor in Council believes, on reasonable grounds, are necessary for dealing with the emergency:

(a)the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals;

(b)the evacuation of persons and the removal of personal property from any specified area and the making of arrangements for the adequate care and protection of the persons and property;

(c)the requisition, use or disposition of property;

(d)the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered;

(e)the regulation of the distribution and availability of essential goods, services and resources;

(f)the authorization and making of emergency payments;

(g)the establishment of emergency shelters and hospitals;

(h)the assessment of damage to any works or undertakings and the repair, replacement or restoration thereof;

(i)the assessment of damage to the environment and the elimination or alleviation of the damage; and

(j)the imposition

(i)on summary conviction, of a fine not exceeding five hundred dollars or imprisonment not exceeding six months or both that fine and imprisonment, or

(ii)on indictment, of a fine not exceeding five thousand dollars or imprisonment not exceeding five years or both that fine and imprisonment,

for contravention of any order or regulation made under this section.

A particularly fitting section is 8(i). But others could possibly be used too.

Another interesting section is 8(c), which could possibly be used to seize oil and gas assets, pay for them, and start to shut them down, as well as fund massive renewable energy projects. It could possibly also be used to seize intellectual property related to renewables, with fair market compensation.

Could the Act be used to jump-start the building of a renewable energy industry? It could possibly work for that, but is not really suitable. There are probably more appropriate measures. But, it may depend on how much further down the wrong road we go.

Could sections 8(d, e and f) be used to fund a massive national tree-planting/employment project? Planting fast growing and food-producing trees in all available green space in Canada might become necessary if we get to 2025, are having major disasters, and it’s clear we are headed for a cliff.

It is most well-suited, however, to a genuine climate-caused emergency, such as a massive winter storm with extensive power outages, tsunamis, abrupt sea level rise, flooding and fire. In that case it would be used for the more standard response – shelter, medication, relief efforts, the supplying of food and water. But tree-planting or other actions could be part of that emergency declaration if climate change was clearly connected to it, in order to do everything necessary to prevent the next. Parliament would need to be on board, and any infringement of rights would have to be justifiable under the appropriate legal test (the Oakes test).

For now it’s food for thought. Hopefully we will not need to revisit this post any time soon.



Today’s bankruptcy case means buyer beware for climate-impacting investments

An important bankruptcy case came down today from the Supreme Court of Canada, Orphan Well Association v. Grant Thornton Ltd. It is about who pays to clean up contaminated properties when the owner goes bankrupt. It made a lot of headlines, like “Supreme Court of Canada says bankrupt energy companies must clean up old oil, gas wells before paying off creditors,” and will impact how people do business in Canada.

It’s great news for the environment, this has been a massive loophole for years where, in the worst instances, companies could hive off contaminated properties to smaller companies, or sell them to smaller high-risk companies, and then let them go bankrupt, leaving no-one to clean up the mess, but the taxpayer. This has been going on in both the states and Canada, in the oil & gas sector and others.

The broader issue was described well by Tori Crawford in her 2014 prize-winning student paper,

The idea that Canada’s insolvency regime and environmental regulations are often in tension is hardly a novel one. At the root of this conflict are a number of competing policy objectives: protecting the public’s interest in a safe and clean environment, preventing companies from treating insolvency as a “regulatory car wash”, and allowing debtors to obtain a fresh start by either restructuring or discharging their debts.

In other words, bankruptcy courts play a balancing act between discharging the bankrupt, paying creditors, and protecting the public. Until today the balance was often found in prioritising paying creditors over protecting the public, as far as the environment is concerned.

But, the court was clear today that “bankruptcy is not a license to ignore rules..” .

So, how does that affect liability for climate change damage? Of which there is potentially plenty in just the last month, including 11 deaths so far from the polar vortex, world-heritage old-growth rainforests burning in Tasmania, mass death of wild horses in Australia due to a heat wave, and a confirmation from the Pentagon that climate change leads to more wars and refugees. And it’s also important to note that so far the costs of dealing with climate-impacts have been borne by the impacted and the taxpayer, if they have been dealt with at all.

But right now businesses are not really liable for climate damage, at least in practice. One could easily argue that there is currently no liability for businesses regarding climate change. However, the rules are changing there too.

A recent article in Insurance Business Magazine noted that the risks regarding climate change are changing for businesses. The article notes three kinds of risk for business in relation to climate change;

  • Physical risks are those that might impact businesses of all kinds as climate change-related events lead to physical damage to business property, assets or supply chains.
  • Transition risks are those that arise as the worldwide shift to a low or zero carbon economy impacts the finances and valuations of organizations and asset portfolios.
  • Liability risks are faced by those alleged to be responsible for (for example) contributing to climate change, or failing to avert, minimize, or report on physical or transition risks.

The third is the key here, and there is lots of discussion out there on the topic. The rules are changing. So, when the SCC said today, “bankruptcy is not a license to ignore rules,” what will that mean as the rules adapt to climate-impact liability?

Well, if the rule becomes that companies are potentially liable for climate-impacts, then their liability will extend to within the bankruptcy process, and could take priority over  creditors. Climate litigation is growing exponentially, and this case opens up the possibility of going after the assets of bankrupt companies, and, again, critically –  getting priority over creditors.

If climate litigants actually take that course, or even if they do not, it should be a red-flag and lead potential investors to more fully explore any climate-impact liabilities of companies and assets before purchase or investment.

Buyer beware!

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..

What can cities do about climate change? A lot. (Part 1)

Why would municipalities want to take action on climate change? Most coastal cities will be impacted, and some more than others (like New York). In 2017 it was predicted that a 3 degree rise would lead to many cites being drowned, however, more recent information shows that considerably less warming could do the same thing. We’re currently at about 1 degree warming and Greenland ice sheets are already melting four times faster than they were, and we’ve possibly already reached a tipping point on their loss.  This is fuelling a risk of serious sea level rise in just the next twenty years – up to 5 meters even if we stay below 2 degrees..

And sea level rise flooding isn’t the only risk, other towns and cities may burn to the ground, such as Paradise, California, Fort McMurray, Alberta, or simply run out of water, such as Cape Town, South Africa.

Considering the risks, and the fact that federal and provincial/state governments that seem to be stuck in 1972, municipalities may wish to do something about it. It’s also a way that individuals can take effective climate action – by running for local municipal office and getting your municipality to take action. Or convincing your municipality to take action.

There are quite a few things towns and cities can do about climate change. Here are a few:

1. Make public transportation free

Making public transportation free doesn’t just cut down on people’s expenses, it is a strong incentive to use public transit instead of your own vehicle. That can represent a huge reduction in emissions. Luxembourg has done so, as a way to deal with climate change.

2. Buy electric buses 

Every five weeks China is building enough electric buses to be London’s fleet. A few years ago this was viewed as a joke, but now is taken much more seriously. Of course it would be most effective to combine this with the point above – by making your electric buses free to the public.

3. Buy electric vehicles and install charging stations.

The IPCC report  has called the transition to electric vehicles a “powerful measure to decarbonize short-distance vehicles.” Austin, Texas, is planning to change their 330-car fleet to electric over the next three years. Pittsburgh is doing the same, and also installing solar-powered charging stations.

Many cities have charging stations, but Kingston Ontario may be leading the way in Canada with a commitment to the electrification of transportation in the city.

4. Go renewable and set goal of being carbon-neutral

On this front a republican mayor in Texas has led the charge, and gotten a lot of attention, for running completely on renewables, wind and solar. Dale Ross, the mayor, says, “[i]n Georgetown, we make our decisions based on the facts.” The decision to go with renewables was made purely on the basis of economic reasoning.

Bristol and Manchester, UK, have set goals of being carbon neutral in 2030, and 2038, respectively. London has set a similar goal as part of their climate emergency declaration. This follows similar steps by several US cities.

Another great way to reduce a city’s carbon footprint, from Portland OR, is to generate its own power through city water pipes. This may also take the prize for innovation.

5. Divest

Divestment from fossil fuel investments is a powerful tool that many cities have used to some degree. A group called C40 Cities has brought cities together to deal with climate change, and many of those listed in this article are part of it. As part of that C40 Cities has sought to accelerate fossil fuel divestment.

New York and London Mayors have put out a public call for divestment, and many cities have answered that call. As part of that London has committed to divesting pension funds from fossil fuels.

More to come in Part 2..

A positive precedent? The Canadian federal government purchase of the TransMountain Pipeline project..

In order to deal with the climate change crisis we will need significant projects. Those will likely include power projects such as huge solar power grids, tidal power, wind power, and more. But it will also include things which may not be profitable or power-generating, such as carbon sequestration, massive-scale tree planting, seeding the oceans, or who-knows-what-else.

To date little has happened on the scale required. Although it really hasn’t been a big part of public discourse, the underlying assumption which has led to a lack of discussion seems to be that it’s “not possible” for governments to invest in “things that business should do,” like power projects, etc.

A neo-liberal worldview has gotten in our way, at a very inconvenient time. In its simpler form is a presumption that government cannot spend 4.5 billion dollars on something as fanciful as a wind farm. And another 4.5 billion on solar panels all over southern Alberta (built and maintained by former oil-patch workers), and another 4.5 billion on planting trees (trees which are wind firm, as fire and drought resistant as possible, and supply some food).

But that is all a lie. The Canadian federal government have graciously shown us, by spending 4.5 billion in taxpayer dollars to buy an outdated pipeline and a project which may never be built, that in fact they could do all of those things, and more.

The feds have shown us that government money can be used to buy businesses, or for major projects, which are in the public interest. What could be more in the public interest than the survival of our children? It could fit under a number of federal heads of Constitutional power, including “peace, order and good government.”

The fact is, we could easily use government money to transition to a low-carbon economy. There is no legal barrier to doing so.

A recent article in the Guardian posited, “What if Canada had spent $200bn on wind energy instead of oil?” The answer is, of course, that we would be much further along in addressing our climate change commitments and protecting our future. And that is just on those numbers alone, and not the spin-off industries which would inevitably result from the government spending 200 billion on wind energy.

The 200 billion figure on which the article is based is the amount of government money that has been invested in the Alberta oil sands since 1999. But instead of looking at the past, we should look at the future and ask,” what if we stopped oil and gas subsidies today, as the Trudeau liberals pledged, and put that money into renewable and natural carbon sequestration?”

2019 – we have 11 years

On October 8, last year, the UN announced we had 12 years to get things on track with meaningful reductions in emissions. Or else face “climate catastrophe.”

What is Canada doing? Canada just bought a pipeline for 4.5 billion, and is using extreme force against aboriginal people trying to stop another one. But – is imposing a federal carbon tax on provinces that don’t have one, for what it’s worth. As of a week ago emissions continue to rise in British Columbia, a Canadian province with a supposedly good carbon tax.

The USA? Recently (2017) pulled out of the Paris Accord, is appointing climate deniers to top positions, the government is partially shut down, and it’s generally falling apart politically. On the upside there is Ocasio-Cortez’s Green New Deal.

The UK, one of the western nations with the best climate records, having passed the first real climate legislation, and cut emissions “by 43% below 1990 levels in 2017,” is in political free fall, with a confidence vote on the May government tomorrow after a stunning defeat of their poorly thought out Brexit plan.

France? Macron had to step back from his carbon gas tax after riots in the streets by the “yellow vests.” A motion which continues to grow, although it’s not clear if it’s gaining or losing momentum.

We now have 11 years. Although there are a few small glimmers of hope, it’s not looking good. This is where we are.

COP24 – big failures and small hopes

“Many people say that Sweden is a small country, and it doesn’t matter what we do. But I have learned that you are never too small to make a difference..”

– Greta Thunberg, 15, at COP24

The positive from COP24? Attendees worked hard and stayed into the weekend to get a deal. Thank you. The deal is a new “rulebook” for how the Paris Accord will be implemented. Considering the resistance from the USA and others, it is a monumental achievement to have come away with anything.

Another interesting positive is the idea that COP24 has shown that global climate-change treaties and efforts can survive the “anti-climate strongman.” However, one could say that if the result is not sufficient, and civilization does not survive.. then those who threw wrenches in the works were more victorious, for what it will matter.

But those positives don’t change the facts.

The deal is incomplete, with some of the most difficult and important issues put off until COP25 next year in Chile. Here are 3 main issues which have been avoided until next year:

  1. Working out the mechanics of an emissions trading system;
  2. Brazil, keeper of the world’s lungs, and now run by Jain Bolsonaro (a fan of Donald Trump) took issue with how forests as carbon sinks are accounted for, pushing for a mechanism which many say would allow double-counting.
  3. Nothing has been done to speed up our nation’s responses to climate change, while climate change is been speeding up.

To put the last point in other words, and at the risk of oversimplification – we are getting farther behind. We now know, as of October 2018,  that we have twelve years to make extreme cuts to carbon emissions, and that the impacts of climate change are being felt, and worsening, much faster than we previously understood.

The Paris Accord was signed in 2015, and does not reflect that new reality. It wasn’t sufficient to deal with the old reality.

In the words of Daniel Mittler, political director of Greenpeace International,

“We should have had so much more… we’ve had a really terrible year of extreme weather events, of forest fires and of scientists telling the world that we are running out of time… In the face of that, this agreement is morally bankrupt, it is just not enough.”

At the same time, here are some good things that have happened or been announced in the last few days:

The grassroots movement for a Green New Deal is growing in the USA and elsewhere.

In the USA the 4th U.S. Circuit Court of Appeals in Richmond, Virginia has pulled permits for an LNG pipeline to cross two national forests and the Appalachian Trail, and “slammed the U.S. Forest Service for granting the approvals in the first place.” To drive the point home the court quoted the Lorax, saying, “We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues.’”

India has cancelled plans for significant coal-fired power stations, as the price of solar continues to drop.

And another pipeline, Keystone XL, has also been stopped, at least temporarily. Vermont law professor Pat Parenteau summarized the Federal judge Brian Morris as having said, “the Trump administration completely disregarded the climate effects of building the Keystone pipeline.”

But the real “small” victory is the young people who are stepping up and calling us out for our failures. Greta Thunberg is one of those young leaders who is taking up the mantle of leadership, because it was just sitting there, unused. This 15-year old girl bravely continued at the UN (from the quote at the top):

…And if a few children can get headlines all over the world just by not going to school, then imagine what we could all do together if we really wanted to.

But to do that, we have to speak clearly, no matter how uncomfortable that may be. You only speak of green eternal economic growth because you are too scared of being unpopular. You only talk about moving forward with the same bad ideas that got us into this mess, even when the only sensible thing to do is pull the emergency brake. You are not mature enough to tell it like is. Even that burden you leave to us children. But I don’t care about being popular. I care about climate justice and the living planet. Our civilization is being sacrificed for the opportunity of a very small number of people to continue making enormous amounts of money. Our biosphere is being sacrificed so that rich people in countries like mine can live in luxury. It is the sufferings of the many which pay for the luxuries of the few.

Our climate children are Jamal Khashoggi at COP24

At COP24 last weekend the United States sided with Russia, Saudi Arabia and Kuwait in blocking progress by refusing to allow a UN commissioned report to be “welcomed.” The report was discussed a little in the last post, as it was the one which was a wake-up call to the world on October 8, 2018. It said, in part, that we are on track for 3 degrees warming and that 3 degrees will spell widespread disaster.

Things did not improve at COP24 as the week went on. On Tuesday Vanuatu accused the USA and other large emitters of intentionally obstructing progress. Today, Thursday, December 13th, it seems hope is fading for any significant accomplishments at COP24.

Questions arise from this. In public and private discussions there is an underlying sense of “how can they do this?” and, “how can leaders just go there and not do anything, or worse yet, scuttle progress?” Or “don’t they know what this is going to do to our children?” They are not always asked, but the questions are often present under the surface.

We all wonder, “how can they just condemn the next generation to a nightmare future, to food shortages, droughts, fires, and resulting migration, war, disease and deaths?” There is an assumption that we can appeal to people’s basic goodness.

Saudi Arabia recently murdered an American journalist, Jamal Khashoggi, in their embassy in Turkey. The assassins allegedly started chopping him up while he was still alive. Most people in the know seem to agree that the Saudi leadership had to have ordered it. The President of the United States then condoned it publicly.

It would be an oversimplification to say that, regarding climate change, there are four bad guys, and all other nations are good. It’s a spectrum, with few countries, if any, really qualifying as the “good guys.” In fact, the Climate Change Performance Index (CCPI) 2019, released a few days ago, clearly refutes any notion of there being true saviours here. Co-author Niklas Höhne said, “[t]here are bright spots in all categories, but no country performs well in all categories.” CCPI 2019 notes that global emissions are rising and there is a “lack of political will” to take the necessary steps to address climate change.

All that said, are there any further questions?

COP24 not looking good as the empire strikes back

Reading the news and it sure looks bad
They won’t give peace a chance
That was just a dream some of us had         – Joni Mitchell

“Last week the UNEP warned that Canada is not doing enough on climate change, right now at we should be talking about increasing climate ambition yet the debate in Canada due to pressure from oil is about the price crisis & more bailouts.” – Tzeporah Berman

“Negotiators at COP24 took time out Sunday to rest after the first week of talks ended on a sour note the previous night, when the United States sided with Russia, Saudi Arabia and Kuwait in blocking endorsement of a landmark study on global warming.” – CBC news

Despite all the new revelations and dire news over the last year, it seems nothing has changed at the Conference of the Parties this year in Katowice, Poland.

As stated above, at COP24 last weekend the United States, Russia, Saudi Arabia and Kuwait blocked progress by refusing to allow a UN commissioned report to be “welcomed,” although those countries (and all other Party states) requested the Report three years ago. The Report is the one released in South Korea in early October which said that the world is far off track on reducing emissions, heading for 3 degrees by the end of the century, and that what is required are “rapid, far-reaching and unprecedented changes in all aspects of society.”

“Welcoming” the Report would mean it would become the centerpiece of negotiations for the remainder of COP24. Now, theoretically, it is not. Although it may be that, like banning a book, this refusal will only put more of a spotlight on the Report and its role at COP24 and next year’s COP25.

At the same time, to add further challenges, Macron is under siege in Paris, and on Monday Trump promoted clean coal, and spoke in favour of the yellow vests on the basis that “[t]he Paris Agreement isn’t working out so well for Paris..”

The world has four days to make progress at Katowice. Failure will reinforce Greta Thunberg’s words that the rules are not working, and we need new rules. The longer we fail the more drastic that change will be when it comes.

Criminal liability for climate change

Does criminal law apply to climate change? Do we need to draft new criminal laws to deal with climate change? What about laws on the books today?

This gets shockingly little academic or public discussion. It has had some, and it’s growing, but it’s still minimal and on the fringe. There is the Centre for Climate Crime Analysis, in the Hague, which chiefly work on matters which are crimes already and are simply not prosecuted. There is a  recent article by Jeffrey Sachs titled, “Trump’s failure to fight climate change is a crime against humanity.” Sachs opens the editorial with;

President Donald Trump, Florida Gov. Rick Scott, Florida Sen. Marco Rubio, and others who oppose action to address human-induced climate change should be held accountable for climate crimes against humanity. They are the authors and agents of systematic policies that deny basic human rights to their own citizens and people around the world, including the rights to life, health, and property. These politicians have blood on their hands, and the death toll continues to rise.

There is a book called Unprecedented Crime: Climate Science Denial and Game Changers for Survival, by Dr. Peter D. Carter and Elizabeth Woodworth. And there’s more out there, but still not that much.

Generally people seem to think that it would require new laws, and since it is a fundamental tenet of criminal law that it cannot be retroactive, it would not apply to acts done today or in the past.

First, let’s consider a few facts:

  • emissions are actually continuing to rise
  • oil companies and governments have known about climate change for decades
  • oil companies (and governments?) have actively hidden what they knew for decades
  • Despite an agreement which is a good start (Paris), and some effort by a few nations, not nearly enough has been done (as evidenced by point #1, and not meaning to belittle the amazing efforts of some people and countries)
  • People are already dying of climate change effects

It’s safe to assume that there are people out there laying up awake at night thinking, “what will my child eat, will our home where we have lived for generations be underwater in 20 years, will my child be a climate refugee and potentially stopped at the border of the only safe haven and once there brutalised for needing shelter? Killed?” The terrifying scenarios are unlimited, and the fears are real and justified.

It seems only fair, if there are people out there thinking that – that there should also be people laying awake thinking, “what am I going to do when the law, and justice, comes to fetch me and hold me to account for the things I have done?”

Realistically, there is probably no-one lying awake thinking that. Yet. This is not vengefulness, or mean-spiritedness. It’s part of what undergirds our entire social structure. Criminal responsibility for acts which are harmful to society is an essential element of organized society. It has failed in regards to climate change. So far. 

In this context it’s helpful to consider the broader purposes of criminal law – why have it?  Around the world there are five objectives which are widely accepted as being the objectives of criminal law: retribution, deterrence, incapacitation, rehabilitation and restoration.

The purposes of sentencing are also useful tools to reflect on the goals of criminal law, and are clearly laid out in Canadian law, in s. 718 of the Criminal Code. They are: denunciation, deterrence, separation from society, rehabilitation, reparations, encouraging responsibility in the offender, and acknowledging harm done to the community.

Regarding climate change, all of these things are lacking in the western world. Those in the world who are largely responsible for the coming deaths and displacement of millions have not been encouraged to have any sense of responsibility. There is no deterrence, because there’s no price to pay, as evidenced by the fact that no price has been paid by anyone, no-one has been held responsible (criminally).

But it doesn’t take a lot of imagination to ask, how many “Camp Fires” do we need before the public cries for justice? And not environmental justice, intergenerational justice, climate justice, or any other new term, just plain old justice. We will see.

And many questions flow from that, far more than can be analysed in a short blog post. Like – aren’t there defenses, and wouldn’t it be really difficult to prove charges like this beyond a reasonable doubt? Yes, of course, those are the hurdles of criminal justice. Not impossible, just challenging. A challenge which has been bravely tackled for hundreds of years.

But also questions like – does making decisions which will cost hundreds, thousands, millions, tens of millions of lives, and making those decisions dishonestly, and with knowledge of the coming harm, ground any specific criminal charge? Murder? Manslaughter? Criminal negligence causing death? 

Could it, should it? This blog will continue to examine these questions in our steeply changing times.