Case Name:                Sue Big Oil

Jurisdiction:               Canada

Type of claim:            Tort law

Status:                          In preparation

Source of claims:      Common law of private and public nuisance

WHAT IS SUE BIG OIL?

Sue Big Oil (“SBO”) is a campaign started by West Coast Environmental Law (“WCEL”) aimed at launching a class-action lawsuit on behalf of British Columbia municipalities against major fossil fuel producers. The objective of the SBO legal action is to hold large fossil fuel companies accountable for their significant contributions to climate change and efforts to impede climate action.[1]

West Coast Environmental Law is a public interest environmental law firm in Vancouver who acts as the secretariat and legal advisor to municipalities in British Columbia that sign on to the SBO campaign.[2] WCEL proposes Chevron, Shell, and ExxonMobil as primary targets because of their substantial global greenhouse gas emissions and extensive efforts to delay climate action.[3]

In Canada, the economic costs of climate change are rising due to events like droughts, heatwaves, wildfires, floods, and rising sea levels. Amongst other impacts, these events result in significant damage to infrastructure and place increasing constraints on the delivery of health care and emergency services. By suing fossil fuel companies that have contributed to the climate change issue, SBO aims to secure funds which can be used by local governments to address the costs of climate change in their communities. Ninety corporate entities including major fossil fuel producers like ExxonMobil, Shell, British Petroleum, and Chevron, are responsible for two-thirds of global emissions.[4]

THE CASE

Municipalities that have signed on to the SBO campaign are bringing claims for private and public nuisance. These types of claims would require the municipalities establish that the defendant corporate entities unreasonably interfered with the municipalities’ use and enjoyment of its property (private nuisance) and unreasonably interfered with rights and interests shared by the public (public nuisance). WCEL asserts there is a link between current costs incurred by municipalities and climate change, which gives municipalities the right to sue to recover the costs from major contributors to climate change.[5]^. WCEL proposes municipalities bring a claim in public nuisance to address the corporate entities unreasonable interference with the public’s right to a healthy atmosphere, and in private nuisance to address their unreasonable interference with public infrastructure.[6]

A successful claim in private and public nuisance requires that the defendant’s interference is both substantial and unreasonable.[7] Meeting the substantial threshold is relatively straightforward, as the interference only needs to be non-trivial. The existential threat posed by climate change easily satisfies this standard.[8] However, assessing reasonableness in nuisance cases is more complicated. It necessitates a balancing of the severity of the harm against the purpose of the action and how the action is carried out by the defendant.[9] Crucially, the central inquiry is whether, considering all factors, it is unreasonable for the plaintiffs to bear the burden imposed by the defendant’s activities without compensation.[10] The focus is therefore, on whether the interference experienced by the claimant is unreasonable, rather than on whether the defendant’s actions themselves are unreasonable. [11]

To prevail against a fossil fuel company in a nuisance claim for damages, the plaintiff must also establish that the fossil fuel company ‘caused’ the interference complained of.[12] This process can be broken down into three main steps: (1) demonstrating that fossil fuel activities generated greenhouse gas emissions, which subsequently accumulated in the atmosphere; (2) establishing that this accumulation resulted in the destabilization of the climate system, leading to various impacts such as sea level rise, fires, and floods; (3) and proving that these impacts directly inflicted the harm for which the plaintiff seeks damages (i.e. impacts to municipal property, and public rights to a healthy atmosphere).

The SBO initiative can be especially impactful now, in part, because in the past it has been difficult to establish a direct link between the actions of companies and the way those actions contributed to climate change. Historically, this presented a major challenge in climate litigation.

Advancements in climate science are allowing scientists to more readily and accurately identify where carbon is being emitted from.[13] The SBO campaign initiators claim that this breakthrough means that fossil fuel giants can be held responsible for their specific contributions to climate change.[14] This is important because determining the exact amount of emissions an individual company is responsible for is essential in deciding the exact amount of damages each producer should pay. [15] Whereas SBO’s goal is to make polluters pay municipalities (in public and private nuisance cases), companies have already been charged for environmental offences under existing legislation.[16]

CLASS ACTION LAWSUIT

A class-action lawsuit is a lawsuit where a group of plaintiffs who claim the same type of loss from the same defendant(s) can sue the defendant(s) in one legal action. Rather than initiating a lawsuit for every municipality, a “representative” plaintiff municipality can initiate one legal action on behalf of all the municipalities that have signed onto the campaign.

In doing so, the nature of a class-action suit has multiple benefits. First, municipalities could save on legal costs by working together to answer major questions regarding fossil fuel companies’ contribution to climate change. Second, the cost of the lawsuit would be distributed among municipalities. Several options for funding the lawsuit are proposed by WCEL:[19]

• Local governments allocate $1 per resident to support litigation costs.
• Legal practitioners may be inclined to offer their services at reduced rates or partly operate on a contingency basis, receiving payment only upon successful outcome.
• Contributions from private foundations, philanthropists, or independent investors could supplement funding.
• Community-driven efforts such as crowdfunding campaigns can also mobilize financial support.

The initial phase of a class action lawsuit entails petitioning a judge to certify that the claim is suitable to be brought in the form of a class action.[20]

Another major advantage of a class-action lawsuit is that the class-action rules in BC protect parties from having to pay the other side’s legal costs if they lose.[21]

PURPOSE OF THE LAWSUIT

Supporters of the campaign assert that the pressure climate litigation and the SBO initiative puts on the fossil fuel industry has the potential to result in systemic change within the fossil fuel industry and by extension the Canadian political sphere. [22]

The SBO campaign has several specific outcomes it is hoping to achieve. [23] First, suing fossil fuel emitters would ease the financial impact of climate change on municipalities. Municipalities are responsible for maintaining public infrastructure and with an increase in climate related natural disasters the cost of maintenance will rise[24]. Second, climate litigation – especially in the form of a class action suit – would uncover fossil fuel companies’ long-term knowledge of climate change and the industries’ contribution to it. [25] In this context, experts often draw comparisons to past class action lawsuits like the tobacco industry. The fossil fuel industry has known of its contribution to climate change since the 1960’s. [26] Companies have not only failed to reveal their knowledge of catastrophic climate impacts, but also actively denied the link between fossil fuel extraction and climate change. [27]

PARTICIPATING BC MUNICIPALITIES (as of July 2024)

• Town of View Royal
• Town of Squamish
• Town of Gibsons
• Town of Qualicum Beach
• Village of Slocan
• Village of Cumberland
• City of Burnaby
• City of Port Moody
• District of Sechelt

NEXT STEPS FOR SBO

Finally, to advance the legal action as a class action lawsuit, SBO requires enough local governments to sign onto the campaign. SBO organizer’s goal is to represent approximately 10% of British Columbia’s population (10 – 20 Municipalities and regional districts).[28] Once the class of municipalities are identified and they agree to bring a collective claim, steps will be taken to file the claim and apply to the BC Supreme Court to seek approval to bring the claim in the form of a class action (class certification).

[1]West Coast Environmental Law, “Sue Big Oil” (date of access 13 February 2024), online: <suebigoil.ca> [web.archive.org/web/20240117020837/https://suebigoil.ca/].

[2]West Coast Environmental Law, “How do we sue big oil?” (date of access 16 February 2024), online: <suebigoil.ca/ /how-it-works/> [web.archive.org/web/20240227145059/https://suebigoil.ca/how-it-works/]

[3]West Coast Environmental Law, “BC Class Action” (date of access 16 February 2024), online: <wcel.org/bc-class-action> [web.archive.org/web/20231211023011/wcel.org/bc-class-action].

[4]Suzanne Goldenberg, “Just 90 companies caused two-thirds of man-made global warming emissions” (20 November 2013), online (article): <theguardian.com> [web.archive.org/web/20240212235356/https://www.theguardian.com/environment/2013/nov/20/90-companies-man-made-global-warming-emissions-climate-change].

[5]Andrew Gage, “Suing Fossil Fuel Giants: An Introduction” (June 2022), online (PDF): <suebigoil.ca> [suebigoil.ca/wp-content/uploads/2022/06/SuingFossilFuelGiants-Intro.pdf].

[6]Gage, supra note 5.

[7]Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, at para 18 [Antrim Truck Centre Ltd.].

[8]Letter from Jane Bailey et al. to public (24 June 2019) at 1, “An Open Letter on Climate Accountability Litigation in Canada”, online (PDF): <suebigoil.ca/wp-content/uploads/2022/06/Climate-Litigation-LawProfsLetter_final2.pdf> [web.archive.org/web/20240120114545/https://suebigoil.ca/wp-content/uploads/2022/06/Climate-Litigation-LawProfsLetter_final2.pdf].

[9]Antrim Truck Centre Ltd. at para 26.

[10]Antrim Truck Centre Ltd. at para 28.

[11]Jesperson’s Brake & Muffler Ltd. v. Chilliwack (District of), 1994 BCCA 1662, at para 32.

[12]David W-L Wu, “Big Oil Liability in Canada: Lessons from the US and The Netherlands” (2023) 46:2 Dal LJ 741 at 744.

[13]L Delta Merner, “From Research to Action: the Growing Impact of Attribution Science” (7 March 2023), online (blog): <blog.ucsusa.org/delta-merner/from-research-to-action-the-growing-impact-of-attribution-science/> [web.archive.org/web/20240130160446/https://blog.ucsusa.org/delta-merner/from-research-to-action-the-growing-impact-of-attribution-science/].

[14]Wu, supra note12 at 769.

[15]Wu, supra note12 at 769.

[16]Environment and Climate Change Canada, News Release, “Husky Oil Operations Limited fined $2.5 million for three offences under federal legislation related to crude oil release in Newfoundland and Labrador offshore” (26 April 2024), online: <canada.ca/en/environment-climate-change/news/2024/04/husky-oil-operations-limited-fined-25-million-for-three-offences-under-federal-legislation-related-to-crude-oil-release-in-newfoundland-and-labrado.html>. [canada.ca/en/environment-climate-change/news/2024/04/husky-oil-operations-limited-fined-25-million-for-three-offences-under-federal-legislation-related-to-crude-oil-release-in-newfoundland-and-labrado.html].

[17]Environment and Climate Change Canada, supra note 16.

[18]Government of Canada, “Husky Oil Operations Limited – conviction information for 2019 – 06 – 12” (26 November 2019), online: <environmental-protection.canada.ca/offenders-registry/Home/Record?RefNumber=214> [environmental-protection.canada.ca/offenders-registry/Home/Record?RefNumber=214].

[19]Gage, supra note 5 at 3.

[20]Class Proceedings Act, RSBC 1996, c 50, s 4.

[21]Gage, supra note 5 at 3.

[22]Gage, supra note 5 at 2—3.

[23]Gage, supra note 5 at 2.

[24]Gage, supra note 5 at 1.

[25]Gage, supra note 5 at 2.

[26]John Woodside, “Has Canada’s Big Tobacco moment for Big Oil arrived?”, Canada’s National Observer (17 October 2023) <nationalobserver.com> [web.archive.org/web/20240224171705/nationalobserver.com/2023/10/17/news/has-canadas-big-tobacco-moment-big-oil-arrived].

[27] David Ravensbergen, “Extracting Justice: How sue big oil could win in B.C., The Council of Canadians (17 February 2023) <canadians.org> [web.archive.org/web/20240718181815/https://canadians.org/analysis/extracting-justice/].

[28]West Coast Environmental Law, “The Next Steps to Sue Big Oil: What happens after local governments agree to sue big oil?” (October 2023) at 1, online (PDF): <suebigoil.ca> [web.archive.org/web/20240120114844/https://suebigoil.ca/wp-content/uploads/2023/09/NextSteps_Oct-30-2023.pdf].