Canada’s climate-change child soldiers
On Nov. 12 an Ontario judge refused to strike out a lawsuit by a group of two minor children and five youths alleging that the Ontario government’s 2018 reduction in its climate- change target by 15 per cent violates their constitutional rights to life, liberty and security of the person. This judgment conflicts with a judgment of the Federal Court two weeks earlier, striking out an almost identical claim. The Ontario court should have followed the Federal Court precedent.
Most adults have an instinctive desire to protect innocent, vulnerable children. In the climate- change wars, however, we are seeing child litigants being used as climate- change soldiers in lawsuits brought by adult lawyers and their financial supporters. If adults cannot win the battle on the merits of their own positions, they hide behind our sympathy for innocent children. The exploitation of children to front a lawsuit in this way is ethically troubling. If this case goes to trial and sets this dangerous precedent, why not have children in Calgary sue to set aside the carbon tax or the Clean Fuel Standard or Ottawa’s hyper- regulatory Bill C- 69 because they kill any prospect of their employment in the oil industry and thereby infringe their constitutional rights? It does not take a lot of imagination to invent such misuse of children for numerous future cases that are essentially political theatre.
The legal pathology of both of these children’s cases — and other similar ones being brought in Canada and the U. S. — is that they treat CO2- induced climate change as merely a local, provincial issue when it is a global, collective issue. Climate- change policy is the collective responsibility of the 195 nations ( including Canada) that are signatories to the Paris agreement. For a trial to determine Ontario’s effect on the planet’s climate by 2100 ( the Paris target year) would require a great deal of speculation about the effect of the fluctuating policies of the other 194 nations. Canada produces just 1.6 per cent of global CO2 emissions, with Ontario responsible for less than half of that. China, by contrast, is at 30 per cent and rising. It is all but impossible to demonstrate any causal relationship between Ontario’s 15 per cent reduction in its small emissions target and a planetary increase in CO2 that will harm the child- litigants in 2100. There is simply no way to prove that Ontario’s 2018 15 per cent target reduction — by itself — will make the entire planet’s climate change worse in 80 years’ time.
No Ontario court can issue a cease- and- desist order to the Chinese or Indian governments or to the many other developing countries whose emissions are rapidly increasing as they rise from poverty. Nor can the court order the Ontario government to create any particular plan to reduce world CO2 emissions. There is in fact no legal remedy that an Ontario court could issue that would serve any useful purpose.
The court held that the applicants were challenging a particular statute, not a policy choice. But that is a distinction without a difference; the statute is a policy choice put into law. Enacting a policy choice as a law does not make it any less a policy choice. If a statute is not the legal representation of a policy choice, what is it? Any political issue can be framed as a legal issue by using the right legal language. But democracies like ours have a long-standing and clear separation of powers between politicians and judges that requires the courts to refuse to accept cases that are essentially political rather than legal.
Ontario’s planned rate of reduction of CO2 emissions has consequences that are extremely political.
The start of Ontario’s and Canada’s transition from fossil energy to wind and solar has already proved very costly, with rapidly increasing electricity prices that have especially hurt those with lower incomes. “Carbon leakage,” which causes investment and jobs to flow to countries ( like China and the U. S.) with lower or no carbon taxes, is also a serious economic concern. Finding the right balance between reducing CO2 emissions, limiting carbon leakage and preserving the health of the economy requires complex public policy trade-offs. That is not the constitutional role of the courts.
Canada, not Ontario, signed the Paris Agreement. The federal government has imposed a carbon tax and set national CO2 policy standards that it will impose if a province fails to do so. If Ontario’s reduced reduction target is illegal, Canada will impose the necessary policy politically. It does not need an Ontario court to try to do that in its place.
The elephant in the courtroom is the coronavirus lockdown, which changes everything for most Canadians. Millions have become unemployed, unable to pay their rent or buy food. Many small and medium-size businesses have disappeared. As Ontario tries to recover from the economic impacts of the pandemic its continuing energy transition calls for continually changing socio- economic trade- offs. The Ontario court should have ruled that such issues are properly decided by the elected government — and that government should definitely appeal the court’s decision.
exploitation of children to front a lawsuit in this way is ethically troubling.