July 2019

An appeal before the courts should spark debate about whether Trans Mountain is compatible with a stable climate.

AS THE FIRES BURN, storms rage, ice melts, and drought warnings go into effect, a rising tide of climate policy supporters from professional ranks are demanding change. Insurance company CEOs, health professionals, and journalists (like Bill Moyers) are joining scientists and academics to name the threat posed by climate change and continued burning of fossil fuels.

Retired Vancouver civil litigation lawyer David Gooderham is one of the latest to put his reputation and his freedom on the line. He is one of the 229 arrestees who defied court injunctions to block the gates of the Trans Mountain Pipeline in 2018 and could face jail time. He is hoping to bring a novel concept to the attention of the courts—evidence of the magnitude of the threat of climate change. Gooderham, at 74, spent his career constructing cases from evidence of catastrophic losses involving flooding, fire, structural failures, and such. He discovered that no Canadian court or parliament has ever considered the evidence about whether the emissions from the expansion of oil sands production in Canada are consistent with keeping the warming of the Earth below the internationally-accepted increase of 2°C.

Jennifer Nathan and David Gooderham (Photo by Holly Nathan)

In other words, every large infrastructure project like the Trans Mountain pipeline has been approved without a single inquiry or environmental review considering their implications on the global emission target of the Paris Agreement—or our own national goal of reducing domestic emissions 30 percent by 2030.

The Ministerial Panel on the Trans Mountain Pipeline of 2016, appointed by the Minister of Natural Resources, found that the question, Can construction of a new Trans Mountain Pipeline be reconciled with Canada’s climate change commitments? had not been answered. The National Energy Board never asked this question. Environment and Climate Change Canada, when tasked with reviewing emissions estimated for the Trans Mountain Expansion Project, admitted that the answer was “not clear.” Yet the cabinet still passed an Order in Council in 2016 authorizing the building of the expanded Trans Mountain Pipeline declaring, with no evidence, that it was consistent with our commitments.

This failure to answer the question has left Canada pursuing a very dangerous course. Even for those whose concern is only around fiscal matters, it leaves us vulnerable to legal challenges or ending up with stranded assets, including the Trans Mountain Pipeline. With the June 18 federal government decision to green-light the pipeline, more of these types of appeals are inevitable. As Jessica Clogg of West Coast Environmental Law stated on the CBC about her reaction to Trudeau’s decision: “We’ll see you in court.”

Gooderham didn’t arrive lightly at the decision to get himself arrested. He had spent the last six years engaged in lawful political activity to “encourage, persuade and induce the Government of Canada to reconsider its plans.” It was the failure of the political process to examine evidence that pushed him into getting himself arrested. At least in a court of law, where there are rules, expert witnesses, cross examination, and consequences of perjury, Canadians might at last have an opportunity to learn whether the government’s plans to continue expanding oil sands production can possibly be compatible with a world that is in dire need of cooling down.

But there is a long row to hoe before he gets that particular day in court.

On December 3, 2018, Gooderham made his first court appearance with co-accused, science teacher Jennifer Nathan. They informed the court, under Judge Affleck, that they wished to use the defence of necessity. This common law defence recognizes that in rare circumstances, we can be excused from criminal liability if we are faced with an “imminent peril” and where the wrong of disobeying the law can be “justified by the pursuit of some greater good.”

Necessity is one of the few legal remedies available for climate supporters around the world, since it enables a legal exploration of what constitutes “imminent peril” and “greater good.” Encouragingly, across the border, in April of this year, the first favourable decision from a state court in Washington permitted the necessity defense to be raised in a climate protest case called the “valve turner’s case.” The conviction of US citizen Ken Ward, who shut off the oil by turning a valve in a pipeline, was reversed, and he will return to court for a new trial where he is able to bring his evidence and expert witnesses forward.

Gooderham, like Ward, is arguing for simply that—a fair trial with the right to call evidence on matters of climate science.

This is where Gooderham’s civil expertise teamed up with Nathan’s training as a science educator to brief an uneducated judiciary on climate science. For the December court hearing, they prepared an Outline of Proposed Evidence that includes projections over the next 12 years based on current policies, where the concentration of carbon dioxide and other greenhouse gases in the atmosphere will exceed 450 parts per million CO2 equivalent, bequeathing us all to “a dire future”—or in legal terms, “imminent peril.”

The 119-page report, filed with the Court of Appeal, is persuasive and sets this global expansion within the context of Canada’s failing domestic efforts to meet the Paris Agreement of cutting 200 million tonnes by 2030.

Their central argument is that the Trans Mountain Pipeline has a pivotal role globally in increasing emissions. Canada’s plan is to continue expanding oil sands production to 2040, but the evidence from the International Energy Association (IEA) and other reports show unequivocally that global oil consumption must start to decline in 2020, or else by 2030 the world will be irreversibly committed to warming above the 2° Celsius limit. Canada is one of the world’s six largest suppliers to the world oil market. Our country’s largest growth in emissions is coming from the oil and gas sector—offsetting most of the reductions in all other parts of the economy.

The proposed evidence lays out oil sands production and emissions; the technology available to reduce emissions during extraction, and per barrel; proposed carbon capture and storage; political caps on emissions, gas sector emissions, methane emissions, and other additional measures proposed in climate plans. Findings are brought forward from the National Energy Board inquiry, Trans Mountain upstream emission report, IPCC reports, global oil consumption projections, mitigation scenarios, the global emissions gap with Canada’s commitment, and consequences of climate change. It isn’t easy bedtime reading but will likely illuminate “the magnitude of the threat.”

On January 17, 2019, Judge Affleck predictably rejected their request to call climate evidence at their trial—which was held March 11, and at which they were convicted. The judge has rejected three other applications to put forward a defence of necessity, but Gooderham is the first to appeal.

In Affleck’s 39-page Reasons for Judgement, he stated: “Despite a historical lack of initiative to curb emissions over these same decades, adaptive social measures may be taken to prevent such a dire outcome. Whether government, private industry, and citizens take these measures is a contingency that takes these consequences outside of ‘virtual certainty’ and into the realm of ‘foreseeable or likely.’”

For Gooderham, this ruling was gold. It meant that an appeal to the BC Court of Appeal could focus directly on the crucial question. The judge appears to agree that we are on a path of a 2° Celsius rise in temperature, but asserts, with no evidence, that there is “a contingency” and that our imminent peril is not “virtually certain.”

The contingency, however, according to Gooderham’s evidence, would require unprecedented cuts of emissions on a global scale starting in six months, including an immediate halt to the growth of global oil consumption. The question for the Court of Appeal then would be whether a contingency of that kind has, what is called in legal terms, “an air of reality.” That was enough to act on, and following their conviction, Gooderham and Nathan filed their Notice of Appeal to overturn Affleck’s decision.

The appeal is due to be heard sometime in the fall by three judges.

I asked Gooderham what he anticipates as success. “The best possible outcome will be that Justice Affleck’s decision will be overturned, and we can have a retrial where we call our expert witnesses.” The Crown would have the right to call their own expert evidence to try and show there is no imminent climate threat.

If he is not granted a retrial at the provincial level, then he plans to take it to the Supreme Court of Canada. If he succeeds with a retrial with a suitable set of facts, a defence of necessity would apply. Whatever the final outcome, it will still have been a success for Gooderham “to open the public discourse on a subject that has largely been treated with silence.” If in the best case scenario, a defence of necessity is accepted, Gooderham indicates that it would not trigger “some kind of anarchy.” The most dramatic thing that could happen would be parliament abolishing the ancient common law and thus pushing climate change and the evidence for immediate action back into some messy, but better-informed, public debates—something that should have happened long ago.

Ironically, just at the same time Gooderham and Nathan brought their case to court in Vancouver, the Federal government found itself obliged to file evidence about climate science in the Saskatchewan Court of Appeal, where the Government of Saskatchewan has challenged the constitutionality of the Trudeau government carbon-price scheme. The Federal government, in order to defend its carbon tax, has had to provide the court with evidence about the risks of rising carbon emissions, and to persuade the court that it is urgent to reduce Canada’s emissions. The evidence did not, predictably, extend to the prospect of failing to meet the Paris Agreement; that would have been risky to their own climate policy on pipelines. The Saskatchewan court ruled 3-2 that the federal carbon price is constitutional. The case will be appealed to the Supreme Court of Canada.

It appears that suddenly, the issue of climate change has found its way into the courtroom, and that it might be “our last chance to help people grasp the magnitude of the threat”…if it can all happen in the next six months.

A funding site for the appeal has been launched at www.gofundme.com/help-fund-addressing-climate-change-in-the-courts

Briony Penn is an award-winning writer of creative non-fiction books including the prize-winning The Real Thing: the Natural History of Ian McTaggart Cowan, and most recently, Stories from the Magic Canoe with Wa’xaid (Cecil Paul).