Josephine V. Yam

Do Courts Take Judicial Notice of Climate Change?

At the recent 2015 Canadian Bar Association Symposium on “Environment in the Courtroom” in Calgary, I delivered a presentation on the topic “Judicial Notice of Climate Change”.  The presentation focused on the question of whether or not courts have accepted climate change as a scientific fact so that no further proof of its existence or cause would be required in courtrooms.

This question is quite interesting on many fronts. In the arena of public opinion, as reported in a 
2014 Forum Poll survey, while 81% of Canadians believe in climate change, there are still many who deny its existence.  According to the survey, climate denial generally emanated from the following groups: Generation X (18%), males (17%), midā€income groups (18%), Atlantic Canada (19%), Alberta (20%), Conservative voters (29%), least educated (17%), and Evangelical Christians (32%).

In the arena of politics, there are some very high-profile politicians who also deny the existence of climate change. A couple of months ago, 
The Washington Post reported that U.S. Senate James Inhofe, who is Chair of the Environmental & Public Works Committee, went on the Senate floor to bring his “proof” that climate change is the “greatest hoax ever perpetrated on the American people”. On the palm of his hand was his piece of evidence: a perfectly round snowball which he later tossed out to an unsuspecting Senate colleague.

Meanwhile, in the academic arena, there are also some very prominent scientists who still deny that climate change is caused by human activities.  The 
New York Times recently reported that Willie Soon, a scientist at the Harvard-Smithsonian Centre for Astrophysics in Boston, claimed that the variations in the sun’s energy are the cause of climate change and that greenhouse gases cause little risk to humanity. Through the Freedom of Information Act, documents revealed that he received $1.2M from fossil fuel companies for his scientific papers. The article noted that some environmental groups deemed this revelation as clear evidence of “the continuation of a long-term campaign by specific fossil-fuel companies and interests to undermine the scientific consensus on climate change”.

While many public debates continue to rage on whether or not climate change really exists, those debates are interestingly not taking place in the courtroom. As climate change science has developed, courts have increasingly taken judicial notice of it. What is judicial notice? 
Chief Justice McLachlin in R. v Find,  (2001 SCC 32)  explained that “judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute”. Thus, whenever a fact is judicially noticed, it is not subject to the ordinary procedural processes for testing evidence such as oaths and cross-examination.

So you may ask, where can the scientific consensus on climate change be found? It is found within the confines of the reports created by the 
United Nations-endorsed Intergovernmental Panel on Climate Change (IPCC). These reports provide rigorous and balanced scientific information to decision-makers. They are written by hundreds of leading scientists and reviewed by thousands of experts. They provide full scientific, technical and socio-economic assessments on climate change. And what have these reports concluded? That warming of the climate is undeniably happening, that human-caused greenhouse gas emissions are likely causing the climate to warm, and that adverse climate-related impacts are presently occurring and are expected to increase in the future unless significant reductions of greenhouse gas emissions are achieved.

In the landmark case for judicial notice of climate science,  the 
U.S. Supreme Court in Massachusetts vs EPA (2007) stated that: “[a] well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere.  Respected scientists believe the two trends are related.” It also stated that “[t]he harms associated with climate change are serious and well recognized”.

Indeed, U.S. courts have heavily relied on IPCC reports because they have various indicia of reliability favoured by the U.S. laws of evidence. They are also backed by highly credentialed organizations and scientists. An American Bar Association article noted that in fact, no judge, except in one dissent, has expressed skepticism about the science underlying climate change. In a survey of the more than 400 climate change litigation cases that have been launched in the U.S., it was noted that the debate on climate change in courts is 
neither based on its existence nor its cause. Rather the debate is based on its detrimental impacts and to whom those impacts can be attributed.

In Canada, the court in 
Syncrude vs Canada (2014 FC 776) likewise took judicial notice of climate change. As Justice Zinn declared:  “The evil of global climate change and the apprehension of harm resulting from the enabling of climate change through the combustion of fossil fuels has been widely discussed and debated by leaders on the international stage.” Thus, he noted that “[c]ontrary to Syncrude’s submission, this is a real, measured evil, and the harm has been well documented”.

Nevertheless, the success of any climate change litigation will turn on the factual basis that is established by the plaintiffs. Indeed, despite the scientific consensus that greenhouse gas emissions cause climate change, it is difficult to prove the contribution of specific defendants to the problem in a specific location. It cannot be denied however that climate change litigation performs several functions: to keep the pressure on fossil fuel companies and other large emitters, to keep the issue live in the public mind, and to send a strong message to the legislature that comprehensive climate legislation is needed because current statutes are inadequate to address it.

At the end of the day, while courts have taken judicial notice of climate change, the future of climate change litigation is less certain. This is because it hinges on the strong political will and ambition of governments to establish, implement and strongly enforce climate change legislation.