On March 25, 2010, the Supreme Court of Canada denied leave to appeal the decision of the Federal Court of Appeal in Friends of the Earth v. Canada. This brings to an end the effort by Friends of the Earth (“FOTE”) to force the government of Canada to comply with the Kyoto Protocol. As usual, the Supreme Court declined to give any reasons for refusing to hear the case.

FOTE’s lawsuit was founded on the Kyoto Protocol Implementation Act, a private member’s bill that was introduced by the opposition and passed over the objections of the government. The Act requires the government to prepare a Climate Change Plan describing the measures to be taken “to ensure that Canada meets its obligations” under the protocol (i.e. a 6% reduction of greenhouse gas emissions from 1990 levels). The government duly published a Climate Change Plan, but the plan did not purport to be directed to achieving Kyoto compliance. In fact, the plan plainly stated that Kyoto compliance would be impossible without triggering “the most severe recession in the post-World War II period”. FOTE alleged essentially that the Climate Change Plan was a sham, and failed to satisfy the government’s obligations under the Act. FOTE also alleged that the government was required under the Act to implement regulatory measures to achieve Kyoto compliance, but had failed to do so.

In October 2008, Justice Barnes of the Federal Court ruled against FOTE, holding that the case raised a political question, not a legal one: “the Court has no role to play reviewing the reasonableness of the government’s response to Canada’s Kyoto commitments”. In short, Justice Barnes found that the government was accountable to Parliament, not to individual litigants, in respect of its climate change strategy. FOTE appealed to the Federal Court of Appeal, which issued a three-sentence decision in October 2009 upholding Justice Barnes’s ruling.

The effect of the decision is that, despite the Kyoto Protocol Implementation Act, it is open to the government to ignore Canada’s Kyoto target; or, more precisely, that it is not for the courts to intervene if the government chooses to do so. The decision can be contrasted with some recent US cases where the courts have been prepared to tackle climate change.

In September 2009, a US federal appeals court allowed a nuisance claim alleging harms related to climate change to proceed against several operators of coal-fired power plants: Connecticut v. American Electric Power Co. The following month another appeals court allowed a class action asserting that GHG emissions had exacerbated Hurricane Katrina to proceed against a number of large emitters: Comer v. Murphy Oil Co. In both these US cases, the appeals courts expressly overturned lower court decisions holding that the cases raised political questions that were beyond the purview of the judiciary. Although these two cases suggest an increasing willingness of US courts to deal with climate change, some reticence remains. Just last month the Fifth Circuit of the US Court of Appeal agreed to rehear the Comer case en banc (i.e. the case will be reheard by all the judges of the court, not just a panel of judges). And another recent US decision departs from the reasoning in Comer and Connecticut. In September 2009 a federal district court threw out a claim by a Native Alaskan community against several large GHG emitters alleging that climate change was responsible for changes to sea ice that were threatening the community: Kivalina v. ExxonMobil Corporation. The court determined that the case raised non-justiciable questions – in particular, allocating the costs of addressing climate change is a matter to be determined by the legislative and executive branches, not the courts. The community has filed an appeal.

In the coming months the courts in the US will continue to wrestle with the question of their proper role in the climate change debate. Ultimately it may fall to the US Supreme Court to determine whether climate change is a matter best left to the politicians. In the meantime, the Friends of the Earth decision should not be seen as foreclosing all climate change litigation in Canada. It was really based on a narrow issue – the proper interpretation of the Kyoto Protocol Implementation Act – and did not raise the same concerns that have troubled some US courts about imposing costs on a few emitters through civil liability in the absence of a comprehensive regulatory regime. There have to date not been any tort claims filed in Canada for climate change related damages, along the lines of the Comer, Connecticut and Kivalina cases. Such a claim would face many procedural and substantive legal obstacles – but the Friends of the Earth decision probably is not one of them. That decision does not stand for the broad proposition that courts must keep their distance from climate change.