Payback Time? What the Internationalization of Climate Litigation Could Mean for Canadian Oil and Gas Companies (64 page pdf, Andrew Gage and Michael Byers, Canadian Centre for Policy Alternatives, Oct. 9, 2014)
Also discussed here: Climate change may create legal liability for Canadian energy firms - New report from B.C. think-tanks says elements are in place to allow for civil action (CBC News, Oct. 9, 2014)
And here: Policy Time Line
Today we review a report from a Canadian policy think-tank which examines the potential for legal action against a handful of Canadian oil and gas producers, because of their contribution to harmful impacts from global climate change, expected to reach $5B/year by 2020. The potential liability of each Canadian company is between $37.8 million and$90.8 million in 2010, rising to over $700M by 2030. Just as it took about 30 years to collect from tobacco companies for harmful impacts to health from the time a warning was given by the Surgeon General of the USA in the late 1960s, so the clock is ticking for those responsible for damages from climate change- and the clock began ticking in 1988 at the Toronto Conference on the Changing Atmosphere, the first major international forum bringing scientists and politicians together in an effort to combat global warming, where 300 international scientists and policy makers from 46 countries issued a warning on climate change whose consequences “could be second only to a global nuclear war”.
Since then, two major factors have changed in terms of environmental liability: much more accurate estimates of financial damages and of emissions have been documented, and the law profession itself has matured and broadened to include the environment as an active and growing area of jurisprudence. In addition, as the report points out, even if the existing body of law does not explicitly identify GHG emissions as a culpable area, courts have been willing to change the law and liability in light of new information, as seen in the tobacco cases. Whether that liability starts and ends with oil and gas producers or extends to those responsible for reducing damages from climate change and the emissions that cause them- such as large municipalities which control traffic and vehicle emissions, public infrastructure and protection of private property from environmental damages, for example, remains to be seen. And then there is the growing awareness of the impacts of climate change which combines with air pollution to increase health costs.
"Humanity is conducting an unintended, uncontrolled, globally pervasive experiment whose ultimate consequences could be second only to a global nuclear war." (Statement from the World Conference on the Changing Atmosphere, Toronto, June 1988).
“For 2010 alone, the global financial cost of private and public property and other damage associated with climate change has been estimated at $591 billion. That number is expected to increase dramatically in the coming years. In Canada, the National Roundtable on the Environment and the Economy has estimated that climate change will cost $5 billion annually by 2020. “
“improvements in climate change science, the growing frequency of visible climate impacts and the lack of meaningful international action on climate change are making it increasingly likely that courts in countries suffering damage will assert jurisdiction.”
"It's very clear scientifically there is a cause of climate change and there is damage…. Once you have those two elements and you have two separate parties, you have the basis for a civil action."
“five Canadian companies —Encana, Talisman, Canadian Natural Resources, Husky and Suncor — as among the 90 largest emitters on the planet… its percentage of global emissions from 1751–2010 is multiplied by the total global cost of climate change.. the potential liability of each Canadian company is between $37.8 million and$90.8 million in 2010, rising to between $297.9 million and $714.9 million in 2030.”
“Case law in Canada and the United States concerning water and air pollution has long recognized that defendants can be held liable for their “significant” contribution to pollution, even if it only became harmful in combination with other sources of pollution.”
"Rising levels of climate damage, increasing scientific evidence about the links between emissions and the damage they cause, and an emerging public debate about who is financially responsible for this damage, could change the situation very quickly.”