Rebecca Wolf Gage, a 13-year-old organizer of climate strikes in Victoria, B.C., and her father, environmental lawyer Andrew Gage, have teamed up with other teenagers and lawyers across Canada to threaten the government with legal action over the Trans Mountain Pipeline Expansion.
The government is expected to make a decision on the project next week.
“I begged dad for about half a year to take this to court,” Rebecca said over the phone Tuesday.
She and her dad live in Esquimalt, at the southern tip of Vancouver Island in B.C., where forest fires are becoming more frequent on the rainforest-covered island. Heavy smoke hung over the province last fire season, cancelling Rebecca’s kayak camp. In December, she joined thousands of teenagers across Canada in organizing school walkouts every Friday to push for more government action on climate change. They’re part of a bigger worldwide movement across 64 countries.
“I was always looking for little ideas of something environmental I could do, which is part of the reason I started the [Victoria] climate strike,” Rebecca said. “And then my dad told me, ‘hey, we could possibly sue the government for this.’”
They haven’t filed any court action yet, but the lawyers and climate strikers sent a letter to cabinet warning that the government could be in violation of the Charter by proceeding with the pipeline expansion without considering its climate impacts.
The expansion would triple the amount of oil flowing through an existing pipeline, from 300,000 barrels of oil a day to 890,000. Environmentalists have raised concerns about the heavy bitumen that will flow through it and impacts on endangered species like the Southern Resident Killer Whale. Some Indigenous groups say the expansion will violate their rights. Proponents say the project will create jobs and bring benefits to First Nation communities along the pipeline.
Next week, Justin Trudeau’s cabinet is expected to make a decision on whether to build the pipeline expansion. Given that it’s politically and financially difficult for Canada to back out now that it owns the pipeline, and with Trudeau facing an election this fall, it’s expected that cabinet will approve the project on June 18.
Rebecca and her dad hope the letter will either impact cabinet’s decision or pave the way for a future legal challenge against the government.
They’re making a novel legal argument. In approving the pipeline, the regulator, the National Energy Board, refused to consider the pipeline’s total impact on climate change. Their letter argues Canada’s failure to do so violates section seven of the Charter, which protects Canadians’ rights “to life, liberty and security of the person.” Gage and other lawyers argue that by authorizing increased emissions, Canada is causing risk to human life and security, especially for the younger generation. It also also cites section 15, which guarantees Canadians shall not face discrimination, including on the basis of age. The letter states greenhouse gases “inevitably impact the youth disproportionately, since the climate effects of those emissions may not be felt for a decade or more.”
The letter estimates the downstream emissions (emissions created when the oil is shipped from the west coast, and refined and burned outside Canada) from the expansion would total 140 megatons per year, or about 20 percent of Canada’s total 2016 emissions.
The NEB has only considered the direct emissions produced by pipeline construction, but a 2014 estimate by Simon Fraser University economist Mark Jaccard found that downstream emissions would amount to 89 percent of the expansion’s total emissions. He put the expansion’s total downstream emissions at 71.1 megatons per year — about half of Andrew Gage’s estimate.
Andrew argues that a Charter challenge wasn’t really possible before Canada announced in late May 2018 it was buying the pipeline.
“The Charter applies to anything where government action is a necessary precondition for it — that’s the legal test,” he said. “So if you are involved in the activity of transporting oil from Alberta to the ultimate refiner and consumer, you are now a necessary condition to the burning of that oil, and for [GHGs] ending up in the atmosphere.”
Andrew adds it’s an important legal point. “You can’t say ‘we’re physically going to buy the pipeline and move this product’ and not take responsibility for the actions. This government action is enabling the burning of oil downstream by the end user, and therefore is directly responsible for it ending up in the atmosphere.”
Rebecca wants the government to look at how the project will affect young people. “In a perfect world, they’d stop it. They won’t, because they don’t listen to youth that much. The best they would ever do because of our submissions would be to look at the impacts.”
Andrew says the government could refer the matter to the Supreme Court to get a quick answer on whether they have an obligation to examine the climate impacts of the pipeline expansion. That would yield answers more quickly than a court challenge.
There have been similar cases elsewhere. Lawyers in Quebec are filing a class action against the federal government on behalf of people under 35 over lack of action on climate change. Young people are suing the U.S. government over inaction, too. And the pipeline expansion also faces potential further action over the Crown’s duty to consult Indigenous communities along the pipeline route.
If the pipeline is approved June 18, the lawyers will talk with their teenage clients about next steps. Patrick Canning, one of the lawyers who signed the letter, said there are a number of options. The most likely step is they will file a federal court challenge against the government for approving the project, based on the Charter arguments.
“Climate change isn’t going to get better anytime soon unless we act now. It’s going to keep getting worse,” Rebecca said.
“Young adults are wondering even now if they should have children. …By the time I’m old enough to have kids, how messed up is it going to be? I don’t want to bring children into a world that I can’t say will be safe.”
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