Victoria takes it up a notch with the push for a class action lawsuit against oil and gas companies.
Cue the eye rolls, accusations of grandstanding, and pointed suggestions that City of Victoria council should stick to fixing streets rather than becoming embroiled in a potentially costly lawsuit against the world’s oil and gas production giants.
Not a surprising reaction in Victoria, where there are regular rumbles of dissatisfaction about council involving itself in global or provincial issues instead of limiting itself to sewage and sidewalks.
“Taxpayers didn’t elect council to get embroiled in a class-action lawsuit, with unknown costs and ramifications, at the other end of the world. Taxpayers hired them to pave the potholes in front of your residence and to revive Downtown business,” said Stan Bartlett, chair of the Grumpy Taxpayer$ of Greater Victoria.
“The council has the tendency to try and appear to do everything for everyone all of the time. It would do well to focus on its core mandate of running the city and providing better quality services at a reasonable cost to fatigued taxpayers.”
Absolutely, council should restrict itself to dealing with sidewalks, streets, waterfront, parks and trees, agreed Mayor Lisa Helps. “And all of those things are being impacted already by climate change and that’s the part of the argument that people don’t really understand,” she said.
Escalating costs of dealing with climate change are pushing local governments to look for financial help from the root source because municipal budgets would buckle if they had to pay the whole shot. Municipal revenue-raising across Canada has not changed since Confederation, meaning your local government gets eight cents of every tax dollar, noted Helps. “And we are faced with things like climate change, flooding, more public works staff, more trees needing attention because of drought and so on and so on and so on,” Helps said. “Eight cents of every tax dollar is not going to be enough.”
AN INSURANCE BUREAU OF CANADA REPORT estimates that, last year, insured damage for severe weather events across Canada reached $1.9 billion and, for every dollar paid out for homes and business, Canadian governments paid out $3.00 to recover public infrastructure damaged by severe weather—in all, a staggering $5.7 billion. In the same vein, a 2017 Capital Regional District report estimates that storm surges and sea level rise—predicted to be at least one metre by 2100—could result in business losses of $415,557 a day.
Armed with such figures, Victoria’s council has asked staff to crunch numbers on Victoria’s climate change costs and then investigate, through the Association of Vancouver Island and Coastal Communities and the Union of BC Municipalities, whether other local governments are willing to work with Victoria on a class-action lawsuit.
The litigation—which would be the first such lawsuit in Canada—would target major carbon producers in an attempt to partially recoup costs such as rebuilding seawalls to deal with sea level rise and strengthening storm sewers to cope with torrential downpours or flash floods that are likely to be among the extreme weather events of the future.
Councillor Ben Isitt categorically dismisses charges that such litigation would be largely symbolic. “It’s definitely not that. It’s not hollow chest beating. The City council is exercising its responsibility to safeguard our municipal resources,” he said.
Victoria, whose ambitious Climate Leadership Plan envisions reaching an 80 percent reduction in greenhouse gas emissions from 2007 levels and transitioning to 100 percent renewable energy by 2050, is doing its due diligence before forging ahead, Isitt said.
“First we will really dig into the details in terms of what the potential financial implications and benefits to the City could be,” Isitt said.
Simultaneously, City staff will track potential climate change costs, with a report due in June, in conjunction with a progress report on the Climate Leadership Plan.
“I think it will probably be more than tens of millions of dollars, and I wouldn’t be surprised if it exceeds a hundred million dollars depending on how long they project out,” Isitt said. Once the figures are in, Victoria can decide how hard to push for a class-action suit. “I think the only way this scenario would go forward,” said Isitt, “would be if other municipalities were to work with us and share the cost. ” Helps agrees that Victoria would not go it alone. “Let’s not be naïve. The City of Victoria alone is not going to take on big oil. That would be ridiculous,” she said.
In the meantime, expenses are already accumulating, with capital projects underway that are directly related to climate change, ranging from rebuilding and strengthening sections of the sea wall along Dallas Road to working with BC Transit to improve public transportation, Isitt pointed out.
However, that rings hollow to Bartlett, who believes Greater Victoria municipalities have lagged in taking necessary actions to address climate change. “For goodness sake, why isn’t there a regional transportation plan for 400,000 people on the South Island? Why weren’t dedicated bus lanes in place 20 years ago? Why hasn’t the City led the charge for an LRT system or alternatives years ago?” he asked. “Dysfunction-by-the-sea itself—with its 13 municipalities, three electoral districts and one CRD—is a very carbon-intensive governance construct. If we were serious about climate change, consolidating five or 10 jurisdictions would make the greatest difference,” he said.
A CASUAL GLANCE AROUND any Victoria neighbourhood shows vehicles powered by gasoline, products that have been brought to Vancouver Island by air or ferry, fuel-guzzling cruise ships, and homes heated with oil or natural gas, all spewing greenhouse gases.
So, why go after global corporations rather than the end user of fossil fuels?
It is a question that Councillor Geoff Young—the only member of council to vote against pursuing a class action lawsuit—has been mulling over.
Usually, if someone sues for damages, the aim is to not only get compensation for damage they have done, but also to get the other person to stop doing that damage. It could get extremely awkward if oil companies stopped shipping fuel to Vancouver Island, Young said. “We would be put in quite a pickle,” he said. “If I was an oil company shipping oil to Vancouver Island and I was being sued by people on Vancouver Island because of damage being done by my product, the first thing I would say is I had better turn off the tap.”
Young emphasizes that climate change action is needed, but, as an economist, he believes carbon taxes and road user charges—both provincial responsibilities—are the best ways to reduce emissions. “Those are the biggest and best tools and they are out of our hands,” said Young.
Helps acknowledges that the responsibility for climate action extends well beyond oil and gas producers and said she would feel hypocritical about a potential lawsuit if the City hadn’t such an ambitious program to wean itself off oil by 2050.
And that date could be even earlier. On February 13, the Capital Regional District board voted unanimously in favour of declaring a climate emergency, and working towards carbon neutrality by 2030. (Vancouver and Halifax have passed similar resolutions.)
With a growing body of information about the effect of fossil fuels on climate change—such as a 2017 report by the Carbon Majors Database showing that, since 1988, more than half of global industrial greenhouse gas emissions can be traced to just 25 corporate and state producers—there are also indications that multinational companies are taking threats of lawsuits seriously.
In the US, climate liability suits by New York City, San Francisco and Oakland were dismissed by federal judges because of jurisdiction, but the cases are being appealed and other communities are filing suits in state courts.
Andrew Gage, West Coast Environmental Law staff lawyer, who has advocated for municipalities to launch class-action lawsuits, is hoping other regions will join Victoria, and he believes the major oil and gas companies are keeping a nervous eye on such campaigns.
The cost of launching a lawsuit might be significant, but it is dwarfed by the cost of dealing with climate change, he said. “I think this type of litigation is inevitable because you can’t have these types of massive costs that communities are facing. At some point there has to be a conversation about whether taxpayers can afford to pay 100 percent of that or whether companies who have made hundreds of millions of dollars profit should pay some of it,” he said. “It’s an active discussion, not only in BC, but increasingly around the world.”
Gage believes that climate change litigation will evolve in a similar way to lawsuits against big tobacco, which were spearheaded by BC in 1998. Every province has now followed suit, with claims amounting to about $120 billion, and the first cost-recovery hearing due in New Brunswick this fall.
Tobacco litigation gained steam with increasing evidence that tobacco companies were well aware of health problems caused by smoking and, in the US, tobacco manufacturers rapidly signed out-of-court settlements to pay back more than $200 billion to public health insurance companies.
The similarity between tobacco and climate change lawsuits is underlined by a 1998 internal Royal Dutch Shell memo predicting that, as the impacts of climate change get worse, fossil fuel companies might face class- action lawsuits. Then, a 1988 Shell report, unearthed by a reporter at the Dutch news website De Correspondent, showed the company was aware of the threats of climate change and its own role in creating conditions for a warming world. “By the time global warming becomes detectable, it could be too late to take effective countermeasures to reduce the effects or even stabilize the situation,” the Shell report warned.
At that time, Shell estimated that it contributed four percent of global carbon dioxide emissions through its products.
“Fossil fuel companies know they are causing this sort of impact—it’s not a surprise—and they are expecting this type of action,” Helps said.
Osler Law, a business law firm with offices in Victoria, Toronto and Calgary, in a February update to clients, referred to the Victoria case and warned that companies should be prepared for such lawsuits.
“Climate litigation has arrived in Canada. Oil and gas producers may soon be faced with climate litigation. Further, the pressure created by litigation, regardless of its success or failure, may also affect the regulatory and operating environment for Canadian companies,” says the briefing note.
The Canadian Association of Petroleum Producers (CAPP), in an emailed response to questions from Focus, said the organization does not usually comment on legal matters, but the Canadian industry can play an important role in reducing global greenhouse gas emissions by displacing less responsible sources of supply. “Climate change is a complex global issue that cannot be solved through lawsuits, but should be addressed through collaborative action by every citizen, business and city,” says the statement.
For Gage, there is little doubt that, at some point, the litigation will be successful, but the big question is whether settlements will come in time to help with the expensive and alarming realities of climate change. He feels the Victoria stance is less about grandstanding and more about taking a lead to help address a serious crisis.
Judith Lavoie is an award-winning journalist specializing in the environment, First Nations, and social issues. Twitter @LavoieJudith.