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Youth taking government to court in climate class action

4 minute read

Young people around the world have chimed in on climate change, launching actions against governments across the globe. The youth at the helm of these actions allege that governments are not doing enough to prevent climate change, in breach of their citizens’ constitutional rights. Historically, class actions have been used to “modify the behaviour” of organizations, corporations and the government. Now young people are using them as a vehicle to force governments to comply with emissions targets to combat climate change.

In November 2018, Environnement Jeunesse filed an application for a class action in Quebec against the Attorney General of Canada on behalf of Quebecers aged 35 and under. The claim alleges that the Canadian government is infringing on putative class members’ fundamental rights because its greenhouse gas reduction targets are not ambitious enough to avoid dangerous climate change; nor does it have a plan that would allow it to reach the target.

It is seeking an order requiring the Canadian government to implement a target and the measures necessary to respect the fundamental rights of the putative class members and to pay an amount equivalent of $100 per class member to be invested in implementing measures to address climate change.

A motion to authorize the class action to proceed was heard on June 6, 2019. Justice Gary D.D. Morrison released his decision in Environnement Jeunesse v. Attorney General of Canada 2019 QCCS 2885, on July 11, denying authorization of the class action.

In denying authorization, the court expressed concerns with the proposed class definition finding that the choice of the age of 35 instead of 20, 30, 40 or 60 was arbitrary and an inappropriate choice. The court noted that the age of the members is an important element and was concerned with the possibility that millions of parents might have the obligation to opt-out their child since the proposed class definition would include minors.

The court also considered whether a class action was an appropriate vehicle in this case. Ultimately, the court concluded it was not and did not comment further on the other authorization criteria. The plaintiffs have indicated they plan to appeal the decision.

Environnement Jeunesse v. Attorney General of Canada is not the first climate change action of its kind. Similar lawsuits originally appeared in the Netherlands, the United States and other countries

Urgenda Foundation v. The State of the Netherlands was the first successful climate change class action out of the Netherlands. This action was launched in 2013 in the District Court of The Hague against the Dutch government, alleging that the government failed to take sufficient action to prevent climate change — thus breaching its obligations to its citizens.

The court released its decision on June 24, 2015, finding in favour of the plaintiffs. The government was unsuccessful in its appeal of the decision in October 2018. The court found that the state failed to fulfil its duty of care to its citizens by not wanting to reduce emissions by at least 25 per cent by the end of 2020. The court noted that the state acted unlawfully by failing to pursue a more ambitious reduction as of the end of 2020, and that the state should reduce emissions by at least 25 per cent by the end of 2020.

The Dutch government appealed the decision to the Netherlands Supreme Court. The appeal was heard on May 24, 2019. No decision has been released.

Similarly, in Juliana v. United States, a group of young people (a group of activists known as Earth Guardians, and another group referred to as Future Generations) commenced a class action against the U.S. government in the U.S. District Court of Oregon on Aug. 15, 2015. Similar class actions popped up across other U.S. states. The plaintiffs claim that the U.S. federal government breached the plaintiffs’ constitutional rights to life, liberty and property by enabling the exploitation of fossil fuels which ultimately contributed to global warming.

The plaintiffs seek a declaration that the U.S. government violated the plaintiffs’ fundamental constitutional rights by substantially causing or contributing to a dangerous concentration of CO2 in the atmosphere, and an order that the U.S. government implement an enforceable national remedial plan to phase out fossil fuels emissions to stabilize the climate system.

The trial in this class action initially scheduled for 2018 was stayed pending interlocutory appeals commenced by the current administration. The action was finally heard before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on June 4, 2019. The panel will determine if the case will go forward to trial.

Interested parties will have to stay tuned and closely monitor the outcomes in these cases, specifically the plaintiff’s appeal of the decision denying authorization of the class action in Environment Jeunesse, and to see whether the court in Oregon will allow the youth-driven climate change class action in Juliana to proceed. Whether the Netherlands’ Supreme Court upholds the Court of Appeal’s decision in favour of the plaintiffs will certainly be one to watch for.

This article originally appeared on The Lawyer's Daily website published by LexisNexis Canada Inc.

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