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Monitor Ccpa CCPA MONITOR ECONOMIC, SOCIAL AND ENVIRONMENTAL PERSPECTIVES Volume 21 No. 6 Canadian Centre for Policy Alternatives November 2014 Climate Damages Litigation: Payback time for Canadian oil and gas companies? By Andrew Gage and Michael Byers limate change is increasingly by 2020. Given these significant costs, Previous examinations of the issue have discussed not as some far-off attention will inevitably shift to the issue largely focused on existing national Cthreat but in terms of current of compensation and liability. In short, or sub-national laws in developed realities. These include extreme who will pay for the costs and damages countries such as the United States weather events like Hurricane Sandy caused by climate change, as well as the or Canada. But climate change is a and Typhoon Haiyan, flooding in necessary adaptive measures? global problem, and nation-specific Alberta and Bangladesh, wildfires, The idea that companies responsible assessments of the potential for climate habitat change like the damage caused for large-scale emissions of greenhouse damages litigation could overlook the by the mountain pine beetle, industry gases might be responsible for financial significant and growing risks posed to stress (e.g. reduced industrial access losses associated with climate change large-scale greenhouse gas producers to areas of Northern Canada caused is not new. Several lawsuits claiming from transnational lawsuits. These risks by melting permafrost, and reduced compensation for climate change include the possibility that a judgment agricultural yields in drought-stricken damages have already been filed in handed down by a court in one country California), and health issues such as the United States. While these cases could be enforced in the courts of West Nile Virus and other diseases have encountered some problems—a another, including Canada. being contracted in new areas. common occurrence in new areas of For 2010 alone, the global financial litigation—recent developments in Current state of climate cost of private and public property climate science, rising global damages litigation and other damage associated with and the lack of progress of international There is a spectrum of academic opinion climate change has been estimated at climate negotiations are spurring ever- concerning the prospects of climate $591 billion. That number is expected greater interest in what this report refers damages litigation. Optimistic scholars to increase dramatically in the to as climate damages litigation. argue that damage from climate change coming years. In Canada, the National The report explores scenarios in is not fundamentally different from Roundtable on the Environment and which the legal landscape concerning other types of common law damages, the Economy has estimated that climate climate damages litigation could and that the same legal concepts could change will cost $5 billion annually suddenly and dramatically change. be applied. Other scholars argue that climate damages litigation is too Figure 1 Some Promising Venues for Climate Damages Litigation complicated or political to be considered by the courts. USA: Although initial climate damages claims have been unsuc- The U.S. judiciary has not yet cessful, U.S. law is a rich source of Japan: Some courts have found adopted a clear and consistent position legal theories that could be used in liability based on a defendant’s climate damages litigation, and contribution to risk, a potentially on the matter. While some lower courts which could also be adopted in powerful tool against polluters who other jurisdictions. Israel: Existing legislation provides increased climate risk. have accepted the argument that climate for lawsuits related to materials that may cause “climate or weather change damage is a “political question” change.” unsuitable for judicial determination, higher courts have expressly suggested that litigation may remain open under the common law as it exists at the state level. South Africa: Case law supports a “flexible” approach to issues of Overall, it appears the U.S. judiciary has proof which might be useful in climate damages litigation. some concerns about their role in climate Phillipines: One of 94 countries around the world with a constitu- damages litigation; the courts have not tional right to a healthy environ- ruled out the possibility of future damage Brazil: ‘Strict liability’ rules have ment; in some cases such rights may caused one commentator to describe form the basis of claims for compen- awards against major greenhouse gas Brazil as a ‘promised land for sation. climate litigation’. producers, but have signalled that action (Continued on Page 20) CCPA Monitor 1 November 2014 Editorial CCPA Monitor ISSN 1198-497X Safeguarding our Parliament CCPA Monitor is published 10 times a year by the Canadian Centre for Policy Alternatives. The opinions expressed in the CCPA Monitor are those of the authors and do not necessarily reflect the views of the CCPA. Please send feedback to [email protected]. EDITOR: Stuart Trew EDITOR EMERITUS: Ed Finn LAYOUT: Susan Purtell EDITORIAL BOARD: Bruce Campbell, Kerri-Anne Finn, Seth Klein, Erika Shaker CCPA NATIONAL OFFICE: 500-251 Bank St., Ottawa, ON K2P 1X3 tel: 613-563-1341 fax: 613-233-1458 e-mail: [email protected] CCPA BC OFFICE: 1400-207 West Hastings St., Vancouver, BC V6B 1H7 he CCPA’s National Office is in dread set in and lingers as I write this tel: 604-801-5121 downtown Ottawa, about ten on the morning after. Talking to friends fax: 604-801-5122 blocks from Parliament Hill. On and colleagues, I know I’m not alone e-mail: [email protected] T October 22, we were just putting the in feeling this way. Possibly you had CCPA MANITOba OFFICE: Monitor to bed, an editorial on the federal a similar reaction. The dread had as Unit 205 – 765 Main St., government’s anticipated surplus nearly much to do with what had transpired Winnipeg, MB R2W 3N5 finished, when at about 9:50 a.m. Twitter as what was still to come, notably how tel: 204-927-3200 lit up with news of shots fired and a the government would respond to fax: 204-927-3201 wounded soldier at the War Memorial. what, absent evidence of strong links e-mail: [email protected] (He would die in hospital shortly after.) to terrorism, appeared to be criminal The updates came in fast from journalists, acts by desperate people. CCPA NOVA SCOTIA OFFICE: bystanders and several MPs. The camaraderie (and hugs) in the P.O. Box 8355, Halifax, NS B3K 5M1 According to early reports, there was House of Commons on October 23 was tel: 902-240-0926 one confirmed shooter on the loose inside comforting in its unusualness. But it also e-mail: [email protected] the Centre Block, with possibly two more masked the reality of a dysfunctional CCPA ONTARIO OFFICE: roaming the city’s business and political democracy—a perverse system where 10 Dundas Street East, core. Two days earlier a man had run over one party still holds an absolute P.O. Box 47129, Toronto, ON, M5B 0A1 two soldiers in Saint-Jean-sur-Richelieu, majority, with plans to use that great tel: 416-598-5985 Quebec before he was pursued, shot and power to rush through imposing new e-mail: [email protected] killed by police. By 9:57 a.m. on October 22 security and surveillance measures in this second, apparently similar assailant an atmosphere where challenging those CCPA SASKATCHEWAN OFFICE: was also dead. Though no one knew it at measures will be increasingly difficult. Suite G, 2835 13th Avenue, the time, there was no longer a danger According to news of the proposals, Regina, SK S4T 1N6 to MPs or everyone else in the RCMP- the Canadian Security Intelligence tel: 306-924-3372 enforced security zone who remained Service (CSIS) is to receive a greater fax: 306-586-5177 locked inside (or out of) their businesses, international mandate and immunity e-mail: [email protected] homes and cars into the evening. for agents providing intelligence related CCPA web site: Our offices were locked as well, to terrorism cases. This will make it even www.policyalternatives.ca though we could come and go, and more difficult than it already is to test Canada Post Publication 40009942 for most of the day it was impossible that intelligence information in court, to think about anything other than the compromising the rule of law. What events a few blocks away. A feeling of (Continued on Page 36) CCPA Monitor 2 November 2014 HENNESSY’S INDEX CONTENTS Good jobs | Bad jobs ON THE coVER: Michael Byers and Andrew Gage on Canada’s climate liabilities continued on 20 112,000 – Number of private sector jobs that disap- Editorial 2 peared in Canada in August 2014. Letters to the Monitor 4 87,000 – Number of newly self-employed Canadians in August 2014. New from the CCPA 5 20% – How much less a self-employed Canadian earns, Good News Page 33 on average, compared to a “regular employee.” Monitored 37 66% – Participation rate in Canada’s labour market in BEHIND THE NUMBERS August 2014—the worst it’s been in 13 years. Demystifying Quebec demographics 6 22 – Percentage of low-paying jobs in Canada. By comparison, that’s high among wealthy OECD nations. Making sense of CETA 8 WTO at a crossroads 12 $27,800 – Median wage for individuals in Canada, mean- ing half of Canadians earn more than $27,800 a year and Manitoba needs a living wage 13 half earn less. OECD analysts define a low-paying job as one The CSR crock 14 that pays less than two-thirds of a country’s median wage. Child care critics: Neoliberalism with a smile 15 14 – Percentage decline in quality jobs in Canada since the late-1980s, according to the CIBC’s Employment COMMENT Quality Index.
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