Canadian Lawyer

36 www.canadianlawyermag.com es of action and was buttressed by advances in the science, linking major companies' emis- sions to climate change and assisting lawyers with the burden of causation, Tupper says. An example this second wave was the 2015 case filed by Peruvian farmer Saul Luciano Lliuya, who sued German utility company RWE for $21,000, for the cost of protecting his village and property from glacial lake flooding and landslides. The $21,000 represents 0.47 per cent of the cost of harnessing the lake, with 0.47 per cent being the share of carbon emis- sions released into the atmosphere in the in- dustrial era that can be traced back to RWE, according a 2013 study by Richard Heede. Heede's study tracked the emissions of the 90 largest carbon producers from 1854 to 2010. Aside from claims associated with emis- sions and environmental effects, second-wave litigation involved claims that directors failed to manage the business risks associated with climate change and harmed the company or shareholders. Directors and their companies were also sued for misleading investors about climate change business risks or misstating climate change targets — for example, Exxon LEGAL REPORT was sued (although the action was ultimately dismissed) by the State of New York for mis- representing how climate change regulations would affect the demand for oil and feasibility of future projects. The effect on insurance companies of up- wardly trending climate change litigation is two-fold, says Tupper. First, the risk affects directors' and officers' liability policies when suits are brought against directors for failing their duty to disclose or properly manage the company, he says. "Even if these suits are unsuccessful, the prospect of future litigation will create a po- tential burden on insurers and is not likely to be prevented by exclusions as they are now drafted," says Tupper. Commercial general liability policies may also be affected, which "invariably" include duties to defend lawsuits and indemnify if the company is found liable. Although there are usually exclusions in commercial gen- eral liability policies for pollution, those will not apply to climate change-based litigation, Tupper says. Language in those policies typi- cally refers to "contaminants or the release of 2020 – Lho'imggin et al. v. Her Majesty the Queen Two Indigenous groups brought a claim in Federal Court, arguing that Canada's failure to meet international climate agreements and set sufficient emissions reduction targets violates Constitution 2019 – Mathur, et al. v. Her Majesty the Queen in Right of Ontario Seven minors sued Ontario, alleging failing to act on climate change violates their s. 7 and 15 Charter rights 2019 – La Rose v. Her Majesty the Queen 15 minors brought a claim against Canada alleging failure to act on climate change violates the s. 7 and 15 Charter rights of present and future Canadian children 2018 – Environnement Jeunesse v. Canada (November 26, 2018), Montréal, 500-06, QC SCJ Class action on behalf of Quebec residents under the age of 35, suing the federal government for failure to take sufficient action to lower greenhouse gas emissions. The motion to institute a class action was dismissed but Environnement Jeunesse Intends to appeal 2018 – Greenpeace Canada v. Minister of the Environment, Conservation, and Parks; Lieutenant Governor in Council Environmental groups sued the Ontario government, arguing that the province failed to consult the public in ending the cap-and-trade program and by cancelling carbon emissions reduction targets RECENT CANADIAN CLIMATE CHANGE LITIGATION "The trend-line seems to be that [climate change-related litigation is] increasing and becoming more varied in nature and type." David Tupper, Blake Cassels & Graydon LLP Source: Sabin Center for Climate Change Law INSURANCE

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