While it took some time to hit the press, on May 28 the environmentalist organization Friends of the Earth filed a lawsuit against the Queen in right of the federal government of Canada. Co-defendants are the Minister of the Environment, John Baird and the Minister of Health, Tony Clement.
The application was made to the Federal Court in Ottawa for judicial review of the government’s failing to meet its domestic and international legal obligations. It seeks two orders of declaration from the court, the guts of which I paraphrase here.
- Canada’s greenhouse gas emissions violate the United Nations Framework Convention on Climate Change and the Kyoto Protocol.
- The government is failing to meet its obligations to control greenhouse gas emissions under s.166 of the Canadian Environmental Protection Act (CEPA).
The application also requests an order of mandamus, which would command the government to comply with s.166 of the CEPA by implementing controls that meet Kyoto targets.
Their argument is a mix of international law and statutory interpretation. Statements about Canada’s failure to comply with international law can be found in this legal opinion, provided by the German firm Günther Heidel Wollenteit Hack. However, the filed application focuses mostly on the matter of statutory interpretation. Friends of the Earth argues greenhouse gases are air pollution, so the Environment Minister has a legal duty under s.166 of the CEPA to control it. Government lawyers will doubtless argue a contrary definition.
You might recall the same arguments happened in the United States. There, the US Supreme Court narrowly decided the Environmental Protection Agency had the authority to regulate greenhouse gases as air pollutants.
Because greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant’, we hold that the EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.
A visit to the Environment Canada website for Bill C-30 – Canada’s Clean Air Act – shows that the Government of Canada has taken notice of the debate south of the border. The text of the bill, which would amend CEPA as well as the Energy Efficiency Act and the Motor Vehicle Fuel Consumption Standards Act, clearly distinguishes between air pollutants and greenhouse gases.
At present, CEPA defines air pollution expansively:
“air pollution” means a condition of the air, arising wholly or partly from the presence in the air of any substance, that directly or indirectly
- endangers the health, safety or welfare of humans;
- nterferes with the normal enjoyment of life or property;
- endangers the health of animal life;
- causes damage to plant life or to property; or
- degrades or alters, or forms part of a process of degradation or alteration of, an ecosystem to an extent that is detrimental to its use by humans, animals or plants.
The amendment would add separate definitions for ‘air pollutant’ and ‘greenhouse gas’.
There are several things about the application which are interesting. Consider how the list of cited authorities includes the following environmental values:
e) the precautionary, intergenerational equity and public trust principles;
Only two of these have found their way into Canadian environmental law, and neither are particularly forceful as authority.
The preamble to the CEPA sensibly appeals to the precautionary principle this way:
[W]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation;
The public trust doctrine, on the other hand, is the common law view that there are public rights in the environment that are held by the Crown. While the Supreme Court tangentially acknowledged its validity in British Columbia v. Canadian Forest Products Ltd. (2004), it shied away from the “novel policy questions” implicated by the concept. In that case, after a short historical survey of the doctrine in Anglo-American common law, the court opened the door only to walk on by – a perfect example of obiter dicta in action.
It would be tough to argue that either of these have great weight as legal authority. Of the three, only one is a legal principle, and the court has been reluctant to think about its implications.
Why toss these three environmental values into the application, then? I suspect it’s to allow them to be used as part of later arguments – arguments which might bait an adventurous court into entrenching the principles in its judgement. That would be an important victory for Canada’s environmental movement, and radically reshape environmental law.
Even if the environmentalist lawyers fail to make their case, the court action might yield politically important results. The process of disclosure allows them to gain access to important ministerial documents and correspondence that might embarrass government.
Still, legal counsel for Friends of the Earth might want to update their boilerplate. They refer to the court as the ‘Federal Court – Trial Division’, but that name changed with amendments in 2003 to the Federal Court Act. It is now just called the Federal Court.