An environmental law firm is calling on B.C. municipalities to set one dollar aside per resident in a bid to raise money for a class-action lawsuit against major oil companies.
The campaign, launched Tuesday under the Sue Big Oil Declaration, is meant to recover a fair share of the costs climate change is imposing on cities in the form of wildfires, flooding and heat waves.
“This industry has to bear some responsibility for the products that they’ve produced,” said Andrew Gage, a staff lawyer with West Coast Environmental Law.
The campaign is also backed by a number of climate and environmental advocacy groups, including the Georgia Strait Alliance, Sum of Us and Climate Emergency Unit.
If the lawsuit is ultimately successful, the money would also be used to protect B.C. communities from impacts of future climate-driven disaster.
An untested wave of climate litigation
Between 1954 and 2010, just 90 companies were responsible for nearly two-thirds of all emissions from fossil fuels across the planet.
That fact has pushed 20 municipal governments in the United States to sue fossil fuel companies for their role in exacerbating climate change. But none of those cases have been decided, says Gage.
One of climate activists’ biggest legal victories came last year, when a Dutch court called on Shell to move more aggressively to reduce its emissions.
More recently, a German court has allowed a Peruvian farmer to sue Germany’s largest power company for emitting seven billion tonnes of greenhouse gases over 156 years — a quantity that has helped put his house at risk of flooding as a swollen alpine lake teeters behind a melting glacier dam on the brink of failure.
But it’s not clear how such litigation would fare in Canada’s court system.
Gage said if the case ends up in court, the legal team will ultimately have to look back at successful litigation against tobacco, asbestos and pharmaceutical companies.
“Where governments at different levels have stepped forward and said, ‘You know, industry needs to take responsibility for the harm that they caused. They knew that their products were causing these effects,” he said.
A pressure campaign ahead of fall municipal elections
To get a day in court, the campaign is calling on B.C. residents to put pressure on local politicians — especially as municipal elections get underway in the fall — to unite cities under the legal action.
Gage says the one-time, one-dollar-per-resident fund would likely get the campaign close to a $1-million threshold required to cover legal fees through the class-action certification process.
“One dollar per person allows municipalities, even smaller municipalities to say, ‘You know, we're interested in participating.’ It's a reasonable amount if they're pooling their resources,” said the lawyer.
In the past, a handful of B.C. municipalities — including the cities of Vancouver, Victoria and Port Moody — have passed resolutions considering legal options to hold fossil fuel companies accountable for the damage wrought by climate change.
Another 24 B.C. municipalities have passed resolutions to send letters to fossil fuel companies, asking they share the costs climate change is imposing on their communities.
The call to raise one dollar per resident for legal fees is meant to push municipalities beyond studying the option and actually file a lawsuit.
“We're looking for municipalities to put something on the table to indicate their interest,” said Gage, whose firm is organizing the early stages of the potential class action and has no expectations it will represent municipalities in court.
Does Canadian law offer a 'solid base' to sue fossil fuel companies?
Canadian courts have never dealt with class-action lawsuits against fossil fuel companies for their role in making climate change worse. And there are clearly some unanswered legal questions
Gage, however, said he’s confident there’s a solid legal basis to bring the case before the courts.
He’s not the only one. In 2019, 28 Canadian law professors wrote an open letter in support of municipalities pursuing such legal action.
Such a suit would be novel in the same way the first cases set precedents on Indigenous rights, gay marriage or claiming compensation from tobacco and asbestos companies, wrote the legal experts. And just like those cases, it would be hard to judge whether it'll succeed.
“However, this does not mean that such a lawsuit cannot be won or that local governments should not explore its potential,” they wrote. “In our view, existing legal principles could form a solid basis for a lawsuit filed by a local government against fossil fuel companies for local climate costs.”
They pointed to litigation and how it may be necessary to protect taxpayers from massive public costs associated with damaged infrastructure, emergency response and disaster relief.
“These expenses will rise dramatically,” they wrote.
(The Insurance Bureau of Canada estimates Canadian municipalities should be paying $5.3 billion annually to avoid the worst impacts from climate change.)
The law professors also said going ahead with such a lawsuit would help establish accountability for past actions and target “a history of corporate deception.”
Time is running out.
Part of the lawsuit would inevitably bring evidence from last year’s North American heat dome, which climate scientists found was made 150 times more likely due to human-triggered climate change driven by burning fossil fuels.
At least 619 British Columbians died in the June 2021 heat, making it the deadliest weather event in Canadian history. But if it’s to be part of the class-action suit, it must be filed within the next year to meet the two-year statutory limitations period set for civil proceedings.
Pressure on big oil would start on day one of court action
If the class action were to go ahead, many of its successes would begin on the day the lawsuit is filed. Gage says fossil fuel companies would have to immediately notify their investors they are being sued.
If a judge says there’s an arguable case, those companies would have to start to include those liability risks on their balance sheets.
“Business decisions are being made, not just by these companies, but also by governments and investors based on the assumption that someone else will pay for that harm,” said Gage.
“That results in bad business decisions because the true costs of the product are being offloaded onto taxpayers and onto communities.”
As the case moves forward, the companies would also have to worry about demonstrating to a court they have been acting reasonably in light of their effect on climate change, something that could change their behaviour, says Gage.
Then would come questions and disclosure requirements over what they knew about climate change and how they reacted — a pivotal moment in litigation against tobacco companies.
“At some point, that industry, knowing that its product causes harm, needs to provide consumers with another product. And they didn't do that,” said Gage.
“They doubled down and actually misled the public and lobbied against action on climate change in a way that has made it very difficult for society as a whole to do what needs to be done.”
Anyone interested in taking part in the camping is invited to attend its launch, scheduled for Wednesday, June 15 at 12 p.m.
Participants can register for the virtual event at this link.