On the Achilles Heel of these Climate Damages Lawsuits: Municipal Zoning Bylaws

By now everyone has heard about West Coast Environmental Law’s (WCEL’s) Climate Accountability Letters campaign. This is the campaign where a group of enterprising lawyers are:

asking your municipality (or regional district) to send “Climate Accountability Letters” to 20 of the world’s largest fossil fuel companies asking them to pay for climate costs that are being incurred by your community.

The theory goes that if enough communities get involved it will somehow stop these companies selling fossil fuels? Yes, I agree the premise is a bit confusing. Given that our society is not in a position to operate without fossil fuels getting rid of all the suppliers seems like a bad plan. Sort of like cruising at 40,000 feet in a jumbo jet and simultaneously demanding that the pilots turn off the engines.

Admittedly, the plan doesn’t really have to make sense since the ultimate goal appears to be “the possibility of a class action by all BC local governments against some fossil fuel companies“. Now given that the group initiating this process is also the legal team that would likely lead that class action lawsuit (and generate all those fees) it is understandable why they might be encouraging this action. That being said, I would like to suggest a few holes in the logic of this approach.

To be clear, I am not the first person to take on this topic and some very good writers have poked massive holes in the WCEL’s arguments. If you have not yet seen it, read this piece by Terry Etam at The Orca called Dear Victoria City Council which highlights some of the mathematical flaws with the WCEL argument.

I have also seen the topic discussed on Twitter. Most of the arguments there decry blaming a supplier of a necessary good for the consequences of using that good. But that is a story for another day.

Instead in this post I want to point out one argument I have not seen elsewhere. In my view, this argument is one of many reasons why any community that decided to go the class action suit route would get absolutely toasted in the courts. I am talking about how historic community zoning decisions will torpedo any future lawsuit.

Anyone who has followed the US class action lawsuits on this topic knows that there is a pretty high bar to cross to win this type of case and hypocrisy makes that bar much higher. Who can forget the City of Oakland exposing itself to massive lawsuits because it simultaneously claimed that climate change was an existential threat in a lawsuit while claiming it wasn’t in a bond issue.

So we know hypocrisy plays in the courts and where do our municipalities really display their hypocrisy on the climate change front? Well that would be their zoning bylaws. The zoning and re-zoning of land is one of the most important powers a municipal government has and how a municipal government zones its lands strongly expresses how that municipality feels about a particular issue.

If a municipality felt that climate change was an existential threat then that should be reflected in their zoning decisions. You wouldn’t zone a car-dependent development if you felt that cars were killing the planet would you? Allowing a subdivision to be developed where every commuter had easy access to transit and the ability to walk to all necessary amenities would seem a minimum requirement for a community that wanted to blame others for the effects of climate change on that community.

Let’s also remember that the basis of these lawsuits is that the fossil fuel companies knew about climate change for decades and did little to address the issue. Well here is a secret, so have local communities. The Intergovernmental Panel on Climate Change (IPCC) was formed in 1988 and its first report was produced in 1990. That means that any land use decision since 1990 would have to be considered in a lawsuit. Anyone want to guess how many car-dependent developments have been approved in Victoria or any of the other signatory municipalities since 1990? I’m not sure, but I’m pretty sure that during any class action lawsuit every one of those developments will be presented as evidence that the communities are the authors of their own misfortune. Unless these communities can demonstrate that their last 30 years of land use decisions have unanimously been intended to increase density and eliminate reliance on automobiles and trucks then there will be issues at trial.

I can hear a lot of people saying, “so what, at least if enough communities do this it will cripple the oil companies“. My response is to point out that when the court finds a lawsuit is frivolous or unwarranted the result is often that the person/group who brought the lawsuit ends up being dinged for the entire cost of the lawsuit. Look at what happened to the City of Burnaby when it lost its most recent Trans Mountain lawsuit. The City paid its own lawyers over $1 million so we can only surmise that it had to pay a similar amount to Trans Mountain’s lawyers. That is over $2 million poured down the drain for zero public good. Imagine how much more good that $2 million might have done if simply donated to the food bank.

Anyone notice a trend here? The only people who are most assuredly paid in this fight are the lawyers. So can you really blame a team of lawyers for suggesting that communities should initiate big class action lawsuits? They get paid no matters who wins. As for community leaders, the upside of this process is pretty hazy. Admittedly a lot of the people initiating these processes are municipal politicians who likely won’t be around when the bill collector comes knocking. But residents of these communities will still be there; and when the piper comes around asking for his due it will be their pockets that will be emptied pay for a politician’s stunt from 2019.

Needless to say, as a taxpayer in the Township of Langley, if my council takes up the discussion of climate accountability letters and class action lawsuits I will be making a presentation to council. I have no intention of lining a team of lawyers’ pockets for a meaningless gesture. I will continue to work to fight climate change at the local level by encouraging the Township to get improved transit in our area and to build more walkable developments but I will fight any attempt to shift the blame to someone else. As a consumer of fossil fuels I am the one responsible for my actions and as communities we are all responsible for our car-dependent communities. I know it is the current practice to look for others to blame for the wrongs of the world, but the truth is that you and I are to blame and trying to get someone else to pay for decisions made on our behalf, by our community leaders, is simply the wrong approach.

This entry was posted in Canadian Politics, Climate Change, Climate Change Politics, Uncategorized. Bookmark the permalink.

5 Responses to On the Achilles Heel of these Climate Damages Lawsuits: Municipal Zoning Bylaws

  1. rogercaiazza says:

    Great description: “Sort of like cruising at 40,000 feet in a jumbo jet and simultaneously demanding that the pilots turn off the engines.”

    Liked by 1 person

  2. A very measured argument. Well done.

    Like

  3. that Robert says:

    Brilliant, Blair. Thank you.

    Like

  4. Chester Draws says:

    I’d love for the oil companies one day to play the game back. When faced with a lawsuit from a government body alleging their damages — they agree. And as a result will stop supplying their product, starting the next week.

    Obviously the mere threat of such an action would throw an area into utter chaos. You’d see the lawsuit pulled pretty quickly.

    Liked by 1 person

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