According to a recent analysis, close to 900 climate-change cases have been filed in “24 countries and in the European Union, with 654 cases filed in the U.S. and over 230 cases filed in all other countries combined,” as of March 2017.
So far, many of these cases have been filed against government entities, either for their failures to regulate consistent with their rhetoric in international negotiations, or for failing to protect their citizens’ health and future prospects according to long-standing, common law public trust doctrines

Williams, Cynthia

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Climate Change Is Very Real - And So Is the Risk of Litigation

York University, Osgoode Hall Law School

Osgoode Hall Law School of York UniversityOsgoode Digital CommonsNews, Editorials, and Commentaries Faculty Scholarship12-21-2017Climate Change Is Very Real - And So Is the Risk ofLitigationCynthia WilliamsOsgoode Hall Law School of York University, cwilliams@osgoode.yorku.caFollow this and additional works at: https://digitalcommons.osgoode.yorku.ca/public_writingPart of the Law CommonsThis Editorial is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion inNews, Editorials, and Commentaries by an authorized administrator of Osgoode Digital Commons.Recommended CitationWilliams, Cynthia, "Climate Change Is Very Real - And So Is the Risk of Litigation" (2017). News, Editorials, and Commentaries. 156.https://digitalcommons.osgoode.yorku.ca/public_writing/156Cynthia WilliamsThe Lawyer's Daily | 111 Gordon Baker Road, Suite 900 | Toronto, ON M2H 3R1 | www.thelawyersdaily.caPhone: (800) 668-6481 | Fax: (905) 479-3758 | John.Carson@lexisnexis.caBusinessBy Cynthia Williams(December 21, 2017, 9:15 AM EST) -- According to a recent analysis,close to 900 climate-change cases have been filed in “24 countries andin the European Union, with 654 cases filed in the U.S. and over 230cases filed in all other countries combined,” as of March 2017.So far, many of these cases have been filed against governmententities, either for their failures to regulate consistent with theirrhetoric in international negotiations, or for failing to protect theircitizens’ health and future prospects according to long-standing,common law public trust doctrines.But one type of litigation should be of increasing concern to Canadianofficers and directors: litigation targeting actions and inactions ofcompany officials in evaluating their company’s strategies in light of achanging regulatory and physical landscape, or challenging failures indisclosing risks or opportunities for their company from those changes.Consider some legal proceedings that have been initiated in the past six months alone:Kinder Morgan Canada’s public offering of securities was challenged for using overlyoptimistic projections for the future demand for oil.Global oil majors and their officers and directors, including Canadian company Encana, havebeen sued in California for their contributions to sea-level rise.ExxonMobil has been sued in a class action for overstating the value of its oil and gasreserves, given the global agreement in Paris to limit global temperature increases to 2degrees Celsius or less.What are the obligations of officers and directors in Canada in light of such developments? That isone of the questions that was explored at conferences in Vancouver and Toronto in October 2017,organized by the Commonwealth Climate and Law Initiative (CCLI), a project started at theUniversity of Oxford’s Smith School of Enterprise and the Environment, and the Prince’sAccounting for Sustainability — and brought forward in Canada by this author and Dr. Janis Sarraof the Peter A. Allard School of Law at the University of British Columbia.According to regulators and expert lawyers participating in the conferences, a number of factorssuggest that at the least, officers and directors in Canadian companies in virtually every industry— not just oil, gas and coal — must be aware of the science of climate change; must evaluaterisks and opportunities in their industry, and locations from physical changes and regulatoryframeworks to address climate change; must evaluate their company’s strategies in light of thoserisks and opportunities; and must make informed decisions about what strategic changes, if any,their company needs to initiate.While reasonable decisions in light of such board-level evaluation will be given the protection ofthe business judgment rule, unconsidered inaction will not be so protected. (See PeoplesClimate change is very real — and so is the risk of litigation | Cynthia Wi... https://www.thelawyersdaily.ca/articles/5485/print?section=naturalresources1 of 2 22/11/2018, 9:46 a.m.Department Stores Inc. (Trustee of) v. Wise, [2004] 3 S.C.R. 461.)What are some of the factors that have led to this changed legal environment? First, the scienceof climate change and its anthropomorphic origins has become increasingly clear. Moreover, thescience of attribution is improving: A recent peer-reviewed study has found that 90 carbonproducers were responsible for 63 per cent of estimated global industrial emissions of CO2 andmethane between 1854 and 2010.Second, agreements such as the global agreement in Paris in December 2015, to limit thewarming of the Earth to “well under” 2 degrees Celsius compared to the pre-industrial era, andthe  Pan-Canadian Framework on Clean Growth and Climate Change, agreed to by the federalgovernment and all of the provinces and territories, with the exception of Saskatchewan, inDecember 2016, show an increasing willingness by governments, including Canadian federal andprovincial regulators, to meet the challenges of climate change.Third, Bank of England governor Mark Carney, recognizing climate change as a “tragedy of thehorizon” and source of systemic financial risk, motivated the G20’s Financial Stability Board toestablish the industry-led Task Force on Climate-related Financial Disclosure (TCFD). The TCFDframework for companies’ climate-related disclosure is rapidly becoming a global norm for thekinds of strategic thinking, corporate governance approaches and specific actions to manage,measure and reduce companies’ contributions to climate change that investors and regulatorsexpect companies to disclose.And fourth is the proliferation of climate-change litigation itself.Canadian officers and directors may think that the prospects of climate litigation are too remote totake the time to consider climate change among the other pressing matters on their agendas.Leading lawyers and law firms, such as those represented at CCLI conferences, think otherwise.It is only a matter of time before activist NGOs and litigators in Canada will come forward to putclimate complacent boards’ theories to the test.Cynthia Williams is the Osler Chair in Business Law at Osgoode Hall Law School, at York Universityin Toronto. She helped found and is on the board of the Climate Bonds Initiative and is the co-director of the Hennick Centre for Business and Law at Osgoode.© 2018, The Lawyer's Daily. All rights reserved.Climate change is very real — and so is the risk of litigation | Cynthia Wi... https://www.thelawyersdaily.ca/articles/5485/print?section=naturalresources2 of 2 22/11/2018, 9:46 a.m.

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Climate Change Is Very Real - And So Is the Risk of Litigation

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