Where Is Climate Change Law Going In Canada? Some Important Cases In The US Should Give Us An Important Clue.

Until now, most American (and Canadian) courts have ducked civil suits on climate change, ruling that the issue is "non-justiciable", i.e. political, not judicial. Control of climate change, they argue, is much too complicated, requiring elaborate and sensitive tradeoffs between competing interests, domestic and international. It is up to the government to act, they have said, and it has chosen not to do so. This was, for example, the reason recently given by our Federal Court for refusing to enforce a Canadian statute, the Kyoto Protocol Implementation Act, which our government has decided to flout.

Nonsense, said the well respected Second Circuit of Appeals on September 21. In Connecticut v. American Electric, they ruled that victims of climate change can sue coal-fired electric utilities in common law nuisance. Their reasons are couched in US jurisprudence, but the essential arguments and responses are equally applicable in Canada.