Transnational Environmental Law and Policy Clinic

For the Winter 2023 term, the Transnational Environmental Law and Policy Clinic is on hiatus.

The Transnational Environmental Law and Policy Clinic (TELP) aims to engage law students in projects related to environmental challenges that require legal and policy interventions across municipal, provincial, national and international boundaries. TELP has adopted an expanded definition of environmental law to include projects that touch on Indigenous law, food law, energy law, and all issues related to sustainability. 

In the Fall 2022 term, TELP members will work on one of three projects.

 

1. Food Loss and Waste (FLW) Law and Policy: a Roadmap for Canada

TELP has established a collaboration with the University of Ottawa’s Law School, and a food justice organization based in Toronto called Reimagine Agriculture, to conduct a comprehensive research and produce policy recommendations related to food loss and waste (FLW) in Canada.  A recent Arrell Food Law Institute Report (“Laying Waste to Waste: Tackling Consumer-level Food and Food-related Waste in Canada,” 2019) indicates that 58% of food produced in Canada is either lost or wasted, leading to significant ramifications including food insecurity, environmental degradation and climate change. Among other targets under SDG (Sustainable Development Goal) 12 on Sustainable Consumption and Production, Canada has committed to halve per capita “food waste at the retail and consumer levels and reduce food losses along production and supply chains, including post-harvest losses.”

Our collaboration has started to map the current laws and policies Canada has put in place, at the federal and provincial levels, as well as in key municipalities, to address FLW.  We intend to use the information to:

• Prepare a report assessing whether the existing legislative and policy frameworks are adequate to enable Canada halving per capita food waste and significantly reducing food losses in the next 8 to 9 years and beyond.
• Propose a roadmap for Canada to create a set of laws and policies on FLW.
• Create a datahub on FLW laws and policies at federal and provincial levels and make it available to policymakers, researchers, students and the public in general, to inform future policy campaigns to meet the challenge of reducing FLW in Canada.

This collaborative initiative aims to generate more well-informed national discussions on the role of law and policy in addressing the pressing issue of FLW in Canada. This collaborative initiative also aims to  provide Canadian law students with an opportunity to conduct policy relevant research on more sustainable and socially just food systems in the country.  Under the guidance of Professors Patrícia Galvão Ferreira (UWindsor Law) and Heather McLeod-Kilmurray (UOttawa Law), students from each school will serve as researchers on these questions and collaborators in the creation of more sustainable food systems in Canada. The Collaboration will likely include other law schools in the future.

 

2. Transboundary Climate Adaptation Strategy for Great Lakes

Since 1909, when they signed the Boundary Waters Treaty (BWT), the USA and Canada have been bilaterally cooperating to protect the environment of the Great Lakes Basin watershed, and to regulate cross-border activities or projects in the region. The BWT includes the international Joint Commission (IJC), an independent body created with the main objectives to prevent and resolve transboundary waters disputes between the two Parties and to alert them to emerging issues affecting the Great Lakes.

Following a long series of scientific studies (the earliest in 1989) documenting how climate change is impacting the Great Lakes ecosystem, in 2003 the IJC issued a forceful alert to the two countries, where they communicated the need to create a binational climate adaptation program to avoid the sub-optimal or mal-adaptation effects of isolated national or sub-national adaptation initiatives. Despite reiterated recommendations by the IJC, the latest in 2020, the USA and Canada have thus far failed to create a joint adaptation program to address the transboundary climate risks and impacts in the region. The IJC is currently preparing a more detailed articulation of the main elements that should be part of a binational adaptation plan (vision, institutional framework, science-policy interface, etc.), in efforts to sway the two Parties to act on the recommendations.

Students engaged in this project will work producing a policy brief to advocate for the creation of a Great Lakes Climate Adaptation Strategy. Specific tasks include:

1. Examining examples of transboundary climate adaptation regimes in other international water basins, identifying their main legal, institutional, and political economy elements.
2.  Writing questions that will help identify the obstacles preventing the creation of a climate adaptation plan in the Great Lakes. These questions will be used in interviews with members of the IJC and other relevant Great Lakes organizations.
3. Help prepare a workshop to discuss key aspects of the Great Lakes Adaptation Strategy to produce the policy brief.
4. Write a draft policy brief.

 

3. Climate Litigation Project

Canada has consistently failed to meet its international commitments to mitigate greenhouse gas emissions under the 1992 United Nations Framework Convention on Climate Change Regime. There is evidence that Canada may miss its commitments under the 2015 Paris Agreement as well, even when the Canadian emissions reduction target is already seen as not representing the country’s fair share of global efforts to address climate change.

As climate change disproportionately affect certain groups of Canadians, there has been a recent wave of climate litigation in Canada, with lawsuits based on sections 7 and 15 of the Charter of Rights and Freedoms filed by vulnerable groups attempting to force governments and parliaments to provide a timely and adequate response to the climate crisis. Thus far, three out of four of these lawsuits have been dismissed without going to trial, based on procedural grounds. Only Mathur v Ontario will proceed to trial in 2022. There has never been a successful climate lawsuit in Canada, despite the country poor record on climate action. This scenario illustrates how access to justice in Canadian Courts for those affected or threatened by climate change impacts have proved thus far elusive.

In this context, the Climate Litigation Project seeks to engage law students in national efforts to understand the obstacles to climate justice in Canadian Courts, and in initiatives to overcome those obstacles. This project is co-supervised by Prof. Galvao-Ferreira and by senior environmental law attorney David Estrin, who co-chaired the International Bar Association (IBA) Taskforce on Climate Justice and co-edited the IBA Model Statute on Climate Litigation. More specifically, the climate litigation project has the following objectives and outcomes for Fall 2022 term and beyond.

Overall Project Objectives

1. To identify up to 5 key climate change litigation test case opportunities in Canada that would be based in whole or in part on unused or under-used causes of action identified as suited for the task in the initial stage of this project. 
2. These cases would challenge Canadian governments and carbon majors failing to effectively limit and eliminate dangerous GHG emissions in a timely way to comply with the temperature goals of the Paris Agreement have a legal obligation to do so.
3. To draft sample pleadings (templates) that would guide communities, groups and individuals that may wish to institute such claims.

Primary Outcomes

1. Produce a Draft Report identifying the unused, underused and (to date) misused legal and human rights bases (“causes of action”) for climate lawsuits which citizens, communities and NGOs can use to ask Canadian courts to order governments and carbon majors to limit and eliminate GHG emissions in a timely way to comply with the temperature goals of the Paris Agreement.
2. This Draft Report will aim to involve structured consultation a number of groups and key individuals with experience in these issues, such as with NGOs and Indigenous communities active on or concerned with climate issues;  lawyers working for NGOs on these issues as well as lawyers in private practice who have actively engaged with these issues; experienced senior litigators in private practices, academics focussed on climate issues, law students participating in environmental clinicals programs, and others experienced or with a track record of interest in these issues.
3. Identify, In the course of these consultations or otherwise, current or likely future projects, policies or circumstances where climate claims based on these causes of action would be useful; and the type of claimants who might be best positioned and motivated to bring such claims.
4. Draft preliminary pleadings (i.e., a template) to guide the factual and legal preparation required to commence and successfully argue such cases.

 

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