Environmental litigation will be big in 2017

By Supriya Tandan January 4, 20174 January 2017

Environmental litigation will be big in 2017


Environmental litigation promises to make headlines in 2017, as some major cases are likely to be heard or decided in different courts around the globe.  Here’s an overview of five trends to keep an eye out for.

1. As Earth’s warming trend continues, citizens sue for action

Climate change litigation gained momentum in 2016 with lawsuits launched against several governments and multinationals.

The right to a livable climate and environment, as articulated in Article 112 of Norway’s constitution, is the basis for legal action by environmental groups suing the country’s national government.

At issue is whether Norway’s decision to award new exploration licences in the Barents Sea violates the right of citizens to a healthy environment.  Coming off the heels of a Dutch court decision in 2015 (still under appeal), which ordered its government to cut emissions by 25 per cent by 2020, a Norwegian re-think of offshore oil and gas development would go a long way in forcing governments to take action on climate change.

In November, an Oregon U.S. District Court judge allowed a constitutional climate change lawsuit filed by 21 students against the federal government. The students, invoking the public trust doctrine, are arguing that the government, by promoting and subsidizing the oil and gas industry, are depriving future generations of the climate system needed for their survival. The public trust doctrine argument has also proven successful in convincing a Pakistani Supreme Court to hear a case by a young girl who is suing her government for developing coal resources in the Sindh province.

Carbon majors are also being directly targeted.

In the Philippines, Greenpeace Southeast Asia is asking the Commission on Human Rights to comment on the relationship between greenhouse gas emissions from carbon majors and climate change, ocean acidification and the human rights of the Filipino people. For the their part, respondents such as Rio Tinto have stated that they support and implement global initiatives to combat climate change, including engaging with stakeholders and reporting emissions.

In the U.S., a New England conservation law foundation is using a creative approach to sue ExxonMobil. It is trying to demonstrate that the largest international oil and gas company has failed to adequately adapt an oil storage facility near the Mystic River, in spite of alleged known evidence that has alerted it to the danger of climate-change related flooding. The conservation group argues that, without proper and adequate protection,  the oil storage could leak into the Mystic River, making ExxonMobil liable for infractions of the Resource Conservation and Recovery Act / Clean Water Act.

2. The one that trumps them all

In Paris, 195 countries met and agreed to limit global warming by 1.5°C. The agreement came into force when 55 countries representing 55 per cent of total global greenhouse gas emissions ratified it. Though U.S. President Barack Obama was instrumental in working behind the scenes to secure an agreement, a soon-to-be President Donald Trump could undo his efforts by pulling out of the climate deal. However, it would take four years to effectively achieve that. A faster approach would be to retract from the United Nations Framework on Climate Change, which would only require a year’s notice. Or he could choose to do nothing at all. The Paris Agreement contains no enforcement provisions.

3. Stewards of the environment

The end of the 2016 marked an important victory for indigenous and environmental groups in the battle over the controversial North Dakota pipeline. There the Standing Rock Sioux tribe is testing their right to protect lands off their reservation but that are still central to their culture/spiritual beliefs. After the U.S. Army Corps of Engineers has denied an easement for the planned route of the pipeline, it will now examine alternative routes, a long-term process which could significantly slow the project to a stop. According to Jan Hasselman of Earthjustice, even Trump’s choices are limited, as “an arbitrary order from the new White House to issue the easement—despite the Army Corps’ statement that further work is needed—would be illegal and would subject the decision to close judicial scrutiny.”

A less publicized lawsuit regarding the proper stewardship of natural resources is also under way in Palm Springs, California where the Agua Caliente Band of Chula Indians are suing two federal agencies for the right to manage an aquifer. Barton H. Thompson, a professor of natural resources at Stanford University was recently interviewed about the case, which in his view will help “clarify what rights, if any, Indian tribes enjoy in groundwater as a matter of federal law.”

4. Upholding the honour of the Crown

Closer to home, Canadian courts face a number of questions surrounding indigenous rights and natural resource projects. Late in 2016, the Supreme Court of Canada heard two appeals from two communities who are disputing authorizations given by the National Energy Board. In Nunavut, the Inuit of Clyde River is looking to overturn a permit granted to a Norwegian consortium that is authorized to conduct seismic testing in Baffin Bay. In Ontario, the Chippewas of Thames River are seeking to undo an authorization given to Enbridge to reverse and expand the flow of the pipeline.

In both cases, the communities argue that the Crown did not engage in meaningful consultation before the NEB gave authorization, and so the SCC rulings are expected to clarify the role of administrative tribunals in satisfying the Crown’s duty to consult and accommodate.

Lillianne Cadieux-Shaw at thecourt.ca, writes that this case will close a loophole in the law allowing the NEB to grant final approval over oil and gas projects, regardless of the impacts on indigenous communities, and without meaningful consultation. “The honour of the Crown was crafted by courts to make sure the government acted with integrity towards Aboriginal groups because for so long, the Crown had acted with dishonour and deceit towards those very groups,” she writes.

5. Attempts to balance economy and environment

On the campaign trail and afterwards, Prime Minister Trudeau has repeatedly stated that oil and gas resources will only be able to reach tidewater by ensuring that project proposals have adequate social acceptability. In an attempt to balance the political sheet and build pipelines while reducing environmental impacts, the Prime Minister has approved Kinder Morgan’s $6.8 billion Trans Mountain pipeline expansion project, announced a price on carbon, ordered a moratorium on new drilling permits in the Arctic as well as a ban on crude oil tanker traffic near the Douglas Channel. We’ll begin to see throughout 2017 if the balancing act succeeds. But already, environmental groups and at least six First Nations have filed court challenges to stop the Trans Mountain project.

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