Young climate activists beat Germany's government in court. Could it happen here?
Evan Dyer | CBC News | Posted: May 23, 2021 8:00 AM | Last Updated: May 23, 2021
The German government's defeat suggests youth-led climate lawsuits can be more than merely symbolic
Young climate activists in Canada have turned to the courts in their fight to goad governments into taking their near-term climate commitments seriously. If the German experience is any guide, they may be on to something.
In a decision closely watched by the 22 young plaintiffs behind two climate lawsuits in Canada, Germany's constitutional court on April 29 sided with nine young Germans against their federal government. The court agreed the country's landmark climate legislation, passed in 2019, put too much of a burden on future generations and didn't take enough responsibility in the present.
"The provisions irreversibly offload major emission reduction burdens onto periods after 2030," the court ruled, ordering the government to change the legislation.
Felix Ekardt, lead attorney for the plaintiffs, told CBC News his team "got the court to recognize for the first time that freedom must be guaranteed not only here and now, but also intertemporally and globally — that is, across generations and across state borders."
Germany's Minister of Economy and Energy Peter Altmaier agreed, calling it "epochal for climate protection and the rights of young people."
We feel that we are not being heard ... that lawmakers today aren't going to have to deal with the impacts and effects of their decisions in the way that we, the youth, will." - Plaintiff Lauren Wright of Saskatoon
Not long after the court ruling, Germany's leaders (already feeling heat from a Green Party surge in the polls) quickly emerged with a new draft law that increases the emissions cut target for the end of the decade dramatically — from 55 per cent below 1990 levels to 65 per cent. They also brought forward their net-zero target date by five years.
German Environment Minister Svenja Schulze said the new law takes on a "gigantic" task. "For the first time, the most strenuous part of climate protection is not being postponed to the distant future," she said. "The Constitutional Court ordered us to do this and the government reacted very quickly."
A morale booster
Ekardt remains cautious about his legal team's achievement. "The government and parliament have only adjusted the target. It remains to be seen whether real measures will follow," he told CBC. "Moreover, even the targets have been inadequately adjusted."
Still, for 16-year-old Lauren Wright of Saskatoon — a plaintiff in a similar case against the Canadian government — the German verdict was "a big source of optimism."
"The quick turnaround time between the victory and measurable change starting to become enacted is very, very good to see," she told CBC News.
Wright is part of a lawsuit sponsored by the David Suzuki Foundation and the Oregon-based Our Children's Trust. The suit is intended to force the federal government to adopt more stringent emissions targets. Our Children's Trust has sponsored a similar lawsuit against the U.S. government since 2015.
Another youth-based lawsuit, sponsored by the Canadian non-governmental organization Ecojustice, takes aim at the decision by the government of Ontario Premier Doug Ford to roll back the province's climate targets in 2018.
Most affected, least consulted
"The majority of our plaintiffs cannot vote. We are below voting age," said Wright. "I cannot contribute my voice in a way that I can elect people to positions of power.
"We feel that we are not being heard, that we're going to be disproportionately affected by these issues, that lawmakers today aren't going to have to deal with the impacts and effects of their decisions in the way that we, the youth, will."
Many courts have turned out to be receptive to that argument. The first breakthrough came in the Netherlands in 2019, when the Supreme Court ordered the government to cut the nation's greenhouse gas emissions by 25 per cent from 1990 levels by the end of 2020.
Vancouver attorney Chris Tollefson represents Wright and 14 other youth plaintiffs in the case LaRose v. HM The Queen.
"Increasingly, we're seeing very encouraging results in these kinds of cases," he told CBC News. "Courts increasingly are recognizing that there is a generational rights issue here, that these young people deserve at least to be heard."
Governments push back
Both the Ford government and the federal government of Prime Minister Justin Trudeau have fought to keep these lawsuits from moving forward in Canada — by filing motions that seek to prevent the young plaintiffs from making their cases in court.
The federal government has been more successful.
Last October, Federal Court Justice Michael Manson granted the government's motion to strike the LaRose lawsuit. Government lawyers had argued that the case was too political and the conduct alleged too broad — and that, in any case, there was no binding climate target for Canada to violate.
"That was a very disheartening moment for us in the case," said Wright.
This month, lawyers for the young plaintiffs filed an appeal of that decision, which they hope will be heard this fall.
Ontario strikes out
Just a few weeks after the federal government's success in court, Ontario tried and failed to strike the Mathur et al lawsuit.
"Our clients decided to take Premier Ford to court over this because the Ford government did something that few governments have done in light of the scientific consensus on climate change," lawyer Fraser Thomson told CBC News. "They have chosen to weaken our targets, to go backwards."
Ontario's move to roll back targets in 2018 left the provincial government with a vulnerability its federal counterpart doesn't share. Though the province argued that the case took the court "well beyond its institutional capacity," Superior Court Justice Carole J. Brown saw it differently.
"For the first time in any court case in Canada, a court has affirmed that my clients have the right and the ability to take their government to court under the highest law in the land, the Charter of Rights and Freedoms," said Thomson. "And they have a right to a hearing on a full evidentiary record."
Next steps
"I think it's a very intriguing argument," said constitutional expert Carissima Mathen, a professor of law at the University of Ottawa. "It is one that has not obviously been put forward in the context of the Canadian charter before, and it would rely on a number of premises being accepted.
"One is that the current model by which we structure voting and participation is somehow deficient in providing for the interests of those who can't vote, and that simply by virtue of their age, they are structurally disadvantaged in how public policy decisions are made.
"It's a lift."
Mathen said that if the federal case is permitted to proceed, she would expect it to go all the way before the government accepts a defeat.
Headed for the Supreme Court
"I would be very surprised if any government would respond to a decision rendered by a court lower than the Supreme Court, because this is such a novel argument, such a profound argument, potentially about the reach of the Canadian charter," Mathen said.
"Of course, you can win on the argument. And then the next step, the really important final step, is what does the court do?"
Mathen said a court ruling in favour of the plaintiffs in either the federal or the Ontario lawsuit would lead to a range of possible remedies — starting with mere "declaratory relief," which would see the court determine that rights have been (or could be) violated and direct the government to take those rights into account.
"And then there's a continuum of much more interventionist remedies that the court could invoke, such as actually making some kind of order," she said. "I see that as less likely. Generally, Canadian courts have been less willing to intervene in that way and actually direct the government to take a decision, especially one that is quite complicated."
Ekardt said he expects the arguments that convinced judges in Germany will be equally convincing here.
"I am not an expert on Canadian constitutional law. But we argue exclusively with typical core elements of liberal-democratic constitutions — fundamental rights to freedom and to the elementary preconditions of freedom such as life, health and subsistence," he said.
Although his plaintiffs have suffered one legal setback, Tollefson said he shares Ekardt's optimism.
"We're very confident about this lawsuit."