TELP/Special Climate Litigation Program
In the Winter 2021 Term, Windsor Law’s TELP will continue to offer a special Climate Litigation & Policy Clinical Project. This is a unique initiative, the first in Canada to focus law student clinical experience on climate litigation and climate law & policy.
In this project, students will creatively and critically examine the theory as well as the evolving practice of public interest climate litigation in various countries such as Canada, the US and Australia, and in regions including South America, Europe, and Asia, Climate change has already caused significant loss of life, homes, food resources and other sever human rights depreciations - and these are expected to increase in frequency and severity unless greenhouse gas (GHGs) emissions are quickly limited. Climate impacts are often greatest for vulnerable communities, including Indigenous peoples, who contributed least to GHG emissions. Recently citizen-initiated climate lawsuits have resulted in several court decisions ordering governments to limit GHG emissions, to establish measures to better protect citizens from climate harms (adaptation), and in some cases preventing the start-up or expansion of private sector coal mines, power plants and carbon emitting facilities including airports.
However, for most domestic judges, proceedings in their Courts questioning national or sub-national government inaction to address GHGs emissions are largely uncharted waters. Too often governments have urged judges to find procedural, evidentiary and other issues that would prevent them from granting effective relief in climate cases. Governments often argue that judges should not entertain such claims because, e.g., these matters are “not justiciable,” because a particular country’s emissions on a global scale are small, or because one country’s action alone cannot offer remedy to climate impacts. Thus, despite a history of some successes to date, the particular nature of both the causes and effects of climate change signify that climate change litigants face unique and significant barriers to their claims in national courts.
This clinical project will provide a supervised space for students to analyse and discuss why some climate claims have been remarkably successful when others failed, and to consider the hurdles that continue to frustrate effective assertion of these rights. Students will then use their appreciation of these factors in helping to identify and to articulate new policy approaches and arguments, as well as legal and procedural reforms required to lower barriers and to provide access to climate justice.
Students will work under the co-supervision of TELP’s director Professor Galvao Ferreira and David Estrin, a senior Environmental Law Specialist recognized as a trailblazer in Canadian environmental law, litigation and policy, and in international climate justice (former Chair of the International Bar Association Environment Committee; Co-Chair of the IBA Task Force on Climate Change Justice and Human Rights, and a co-author of the 2020 ground-breaking IBA Model Statute for Proceedings Challenging Government Failure to Act on Climate Change).
Sessions will take place primarily on a remote basis during the Winter 2021 term. Limited face-to-face opportunities may be considered on a case-by-case basis.
Expectations from students:
Students enrolled in TELP’s climate litigation clinic are expected to attend weekly virtual meetings of up to 3 hours per week, and to undertake legal and policy research and memo preparation on key issues and assist in the organization of virtual workshops (6 hours per week).
Why take this clinical course:
TELP’s Climate Litigation & Policy clinical project is part of Windsor Law’s growing attention to training the next generation of lawyers to be leaders on the most relevant socio-legal issues of our times, including climate change. The Law School has undertaken recent efforts to integrate climate change as a cross cutting theme into its legal education curriculum. Other initiatives include the Cities and Climate Forum (which provides opportunities for students to engage with municipal climate action), and research on class action climate lawsuits by Professor Kaladjzic. The Transnational Environmental Law and Policy Clinic (TELP), which is housing this special project, aims to engage law students in projects related to environmental challenges that have a transboundary (Canada-US) or a transnational angle, meaning that these challenges 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.
What this clinical experience entails:
The clinical project includes both a theoretical component and a practical component.
Theory and Critical Analysis component:
From the beginning of the academic year in January 2021 to early February (4 to 5 sessions), new clinic members will be assigned readings, including recent leading climate lawsuit pleadings and decisions, in preparation for participation in a series of virtual classes designed to facilitate understanding and critical analysis of the foundational aspects of climate litigation, including science-policy interface, causes of action including not only common law but those that can be derived from constitutional, environmental and international human rights principles, the substance of key arguments made by plaintiffs and defendants in recent climate cases, obstacles to successful pro-climate litigation and the most critical law and policy reforms required and techniques for implementing such reforms. Some parts of these sessions will be co-led by clinical students already experienced in these topics from participation in the clinic’s Fall 2020 term, and we will also invite guest speakers during this part of the course, including (subject to availability), counsel for leading climate litigation cases in Canada and abroad and experts on human rights and the environment.
During the rest of the term, equipped with the information and understandings from the theory and critical analysis component, clinic students will be involved in current or emerging climate policy and litigation projects/issues/initiatives as approved by the instructors.
Some examples of practical issues students may work on:
- Briefing memos or reports on potential legal cases brought against public bodies who have licensed resource extraction or infrastructure development which will significantly contribute to climate change (e.g. coal mines, oil drilling, pipelines, fracking etc.) without considering or giving sufficient weight to their climate impacts. Students will consider both procedural and substantive bases for seeking judicial remedies that would require such assessments and policy considerations to be carried out in a transparent manner prior to a final decision that could either halt the project or allow its construction to proceed. Students will consider in their memo, for example, such issues as whether the carbon emissions associated with the project as well as its Scope 3 (downstream) emissions would be consistent or inconsistent with Canada’s commitments to reduce its own national GHG emissions, violate Canadians’ human/constitutional rights and/or be inconsistent with the government’s international legal commitments to reduce GHG emissions.
- Briefing memos or reports on potential legal cases brought against carbon majors who are significantly responsible for climate change due to their contribution to a large proportion of global greenhouse gas emissions. Claimants may include individuals or sub-national governments like municipalities or provinces. Legal grounds may include torts, national and international norms on business and human rights, disclosures obligations for corporate directors, etc.
- Briefing memos and possible meetings to assist the business community, pension funds as well as corporate directors and officers appreciate the need and methods that can be used by these enterprises to avoid legal, financial and reputational risks to which these sectors will be increasingly exposed in the absence of pro-active due diligence strategies and commitments in their business plans.
- Advancing knowledge about the reforms identified in the International Bar Association/IBA Climate Change Model Statute, so that ENGOs, the private bar, Bar Associations, governments and the Judiciary appreciate the hurdles to climate cases being initiated or moving past the court house door, why it would be appropriate to lower or eliminate these hurdles, how the Model Statute could explain and illustrate the reforms required, and the urgent need for this to occur. Potential components of this project include clinic students organizing a virtual half-day workshop involving law students and interested faculty at other Canadian, U.S. and possibly European law schools, as well as members of local bar associations, and any interested local judiciary and human rights tribunal members, to become familiar with the needs, challenges and reforms referenced in the Model Statute and to discuss strategies for having some of these reforms proposed and adopted, with the support of local Bar Associations, law firms, local law school faculties/students at a national or sub-national level (e.g. Canadian provinces or US states) through changes to rules of court, regulations under acts governing the courts, or by judges when a pertinent case came before them.
- Help organize Canada’s first Youth Climate Court, an educational and mobilization tool to get Canadian Youth engaged with city or provincial stakeholders on the role of citizens, law and courts in addressing the climate crisis. Note that in this project the process is as important as the content. Besides the legal skills you will be also working on your skills in outreach, advocacy, networking, legal education, mobilization and communication.
- Depending on need and timing, assisting counsel in on-going Canadian or international public interest climate litigation cases.
All 2L and 3L students are eligible. Ideally students should be enrolled in - or have taken - Environmental Law, International Environmental Law or an equivalent course through the Canadian or American Dual JD program. Students will be notified by email of application details and apply for TELP here.
3 credits for the Fall 2020 term and 3 credits for the Winter 2021 term (if the special clinical project is extended). Students will be evaluated on a numerical grade basis. Students are assessed on the basis of participation in the academic component and virtual project meetings, self-reflection exercises, and project memos/legal briefings.