Justiciability

• Courts around the world are increasingly being asked to determine whether governments and Crown corporations are doing enough to address climate change.
• In the past few weeks, courts in Belgium and Germany have ordered greater emissions reductions from national governments.
• It accepts that courts are an appropriate way to resolve the hotly contested issues at the centre of climate policy.

‘Justiciability 101’

• Justiciability marks the line between what should be decided by courts versus other government branches.
• In 2012, the same court decided that the federal government’s decision to leave the Kyoto Protocol was also not a matter for the courts.

A turning tide?

• The first was a youth-led challenge to current federal climate policy based on its disproportionate harms to young people.
• The second one involved two Wet’suwet’en House groups claiming that federal climate policy violated their rights under the Canadian Charter of Rights and Freedoms.
• According to the lower court, these challenges were “too political” for courts to resolve and better left to legislators and government officials.
• The lower court rulings put an early end to both challenges, preventing judicial scrutiny of claims of rights violations.

Perverse incentives?

• Governments expose themselves to court challenges when they enact laws and regulations, but not when they merely make policy statements.
• This approach fails to capture how government inaction can itself be a political decision affecting constitutional and other rights.
• The Federal Court of Appeal’s broader understanding of what constitutes a legal anchor may also alleviate this issue.

The future role of courts

• Going forward, the increase in cases related to climate change and climate policy will test the balance between courts and other government branches.
• Now those most suffering the effects of climate change want and need courts to act on climate when governments fail to do so.

Steve Lorteau receives funding from the Social Sciences and Humanities Research Council (SSHRC). Andrew Green receives funding from the Social Sciences and Humanities Research Council (SSHRC).