West Coast Environmental Law Blog, October, 2013

 

Recently the BC Water and Waste Association (BCWWA) posted a video of a short talk that West Coast Staff Lawyer, Deborah Carlson, gave last June to their Climate Change Committee.  The talk, which is intended to be a first video resource for the planners and engineers that are members of the BCWWA, looked at the question: are local governments and professionals dealing with water management more likely to be sued if they seriously examine for climate impacts?

The question sounds ridiculous, but it’s actually one that we’re hearing more and more.  Obviously if governments are more likely to be sued if they pay attention to climate change, that would create a big incentive for governments to ignore the best science and to fail to create plans and strategies to adapt to a changing climate.

However, our view is that responsible governments – governments that inform themselves about the best available climate science and the likely impacts on their communities – are less, rather than more likely, to be successfully sued.

What local governments are worried about

Climate change will have huge implications for infrastructure that BC’s communities are responsible to build and maintain, and for how planning is done.  And, if it’s done wrong, there is a real risk that they will be sued for the resulting damage.  As Zizzo Allan Climate Law LLP has written:

In addition to continuing to mitigate climate change through efforts to reduce greenhouse gas emissions both locally and globally, municipalities should adapt to this new normal. … Canada has already witnessed civil law suits filed against municipalities for failing to maintain appropriate infrastructure that can withstand extreme weather. For instance, in 2002, following a flood in Stratford, Ontario, residents brought a class action against the City of Stratford for failure to take preventative action and improve the water management system despite prior flooding and warnings. The court certified the class and the case was eventually settled for $7.7 million, after the City had already paid out over $1.2 million in emergency relief. …

Municipalities have, in effect, been put on notice that potentially significant civil liability could arise from system failures and flooding events.

But some local governments and the professionals advising them – looking for an out – wonder whether it’s only once they have detailed information about how climate change will impact their community that the possibility of lawsuits kicks in.  They worry that a study showing that their community will have more flooding would be a smoking gun in a court case, and that it’s safer not to know.

Why it’s better to be informed

In preparing her talk, Deborah was asked:

[w]hether, by virtue of obtaining information through a climate change risk assessment … a local government would now face greater liability than if it had, say, just kept its head in the sand.

For a number of reasons she concludes that local governments are better off being informed by the best available science.  These reasons include:

  • There is already “a significant amount of information available about the impacts of climate change in BC”, and the available information is growing.  See, for example, the Plan2Adapt website.  This means that the data that governments might try to avoid creating is already available, and they could be considered negligent if they fail to consider it.
  • A local government that is well informed about climate impacts, but makes a policy choice not to immediately address some of the risks identified, is probably not liable for that policy decision.
  • Litigation concerning damage to private property from the failure of municipal infrastructure that was unable to accommodate climate change impacts may be framed as a nuisance claim.  In such a case, the question of whether the government had knowledge of the changing climate is less relevant.  Moreover, a local government that lacks information about climate change impacts may fail to adopt structural and non-structural measures that could help reduce its exposure to claims related to infrastructure failure, while protecting citizens and property.
  • Ignoring climate change may give rise to higher insurance costs, because insurers are already responding to climate-related risks, and Canadian insurers in particular are collecting data about weather-related events and climate change that will likely have an impact on insurance premiums;
  • Lack of information may prevent local governments from taking advantage of cost-effective opportunities to upgrade infrastructure, including options for green infrastructure that can support greater resilience to climate change impacts.

For more on these and other points, check out Deborah’s full presentation.

By Andrew Gage, Staff Lawyer