Share this Story : Financial Post Copy Link Email X Reddit Pinterest LinkedIn Tumblr

Opinion: Will our courts soon import Dutch emissions disease?

The Netherlands is having to reduce its overall emissions sharply to alleviate climate effects on the Caribbean island of Bonaire

You can save this article by registering for free here. Or sign-in if you have an account.

Bonaire is a small island off the coast of Venezuela that most of us couldn’t find on a map. Yet a recent Dutch courtroom drama about sea level rise and hurricanes facing Bonaire, a “special municipality” of the Netherlands, could serve as the “Bonaire blueprint” for Canadian courts. If so, that could have big impacts on Canada’s energy prices, inflation and employment.

Subscribe now to read the latest news in your city and across Canada.

Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman, and others.

Daily content from Financial Times, the world's leading global business publication.

Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.

National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.

Daily puzzles, including the New York Times Crossword.

Subscribe now to read the latest news in your city and across Canada.

Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman and others.

Daily content from Financial Times, the world's leading global business publication.

Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.

National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.

Daily puzzles, including the New York Times Crossword.

Create an account or sign in to continue with your reading experience.

Access articles from across Canada with one account.

Share your thoughts and join the conversation in the comments.

Enjoy additional articles per month.

Get email updates from your favourite authors.

Create an account or sign in to continue with your reading experience.

Access articles from across Canada with one account

Share your thoughts and join the conversation in the comments

Enjoy additional articles per month

Get email updates from your favourite authors

Sign In or Create an Account

How can a Dutch legal decision affect Canada? Canadian courts often review the judicial decisions of other countries, while Canadian litigants now routinely cite European decisions in trying to expand Charter rights into climate rights. In a recent controversial Canadian climate case, Mathur v. Ontario, the judge explicitly cited a Dutch decision that she said she found “persuasive.”

Get the latest headlines, breaking news and columns.

There was an error, please provide a valid email address.

By signing up you consent to receive the above newsletter from Postmedia Network Inc.

A welcome email is on its way. If you don't see it, please check your junk folder.

The next issue of Top Stories will soon be in your inbox.

We encountered an issue signing you up. Please try again

Interested in more newsletters? Browse here.

That decision ordered the Dutch government to reduce CO2 emissions in the Netherlands —which accounts for a tiny 0.35 per cent of global CO2 emissions — in order to reduce the effects of climate change by the year 2100 on an island 8,000 km away. The court held: “In the context of climate change, it is … up to the … state to argue (and, if necessary, prove) that there is no causal link between the conduct specifically complained of and the consequences known to affect individuals as a result of climate change.”

Because 0.35 per cent is a tiny bit greater than zero, the government cannot prove no causal link. (How would it prove a negative in any case?) It did argue that its emissions in Europe don’t matter to the climate in Bonaire, but the court decided that although this trivial level of CO2 emissions cannot make a measurable difference that doesn’t matter because it is not zero. That is effectively saying: It doesn’t matter that it doesn’t matter in the physical world, it matters in the legal world. The decision creates a wide gulf between reality and the law.

Greenpeace, which represented Bonaire before the court, asked it, perfectly reasonably, to consider two remedies separately. First, ordering the Netherlands to help Bonaire adapt to rising sea levels (using dikes, for instance, with which the Netherlands has extensive experience). And, second, mitigating the projected impacts of climate change by ordering a more rapid reduction in CO2 emissions than currently planned.

The no-more-pipelines MOU

The enviro-vigilantes are coming

Advertisement 1Story continues belowThis advertisement has not loaded yet, but your article continues below.document.addEventListener(`DOMContentLoaded`,function(){let template=document.getElementById(`oop-ad-template`);if(template&&!template.dataset.adInjected){let clone=template.content.cloneNode(!0);template.replaceWith(clone),template.parentElement&&(template.parentElement.dataset.adInjected=`true`)}});

The court rejected Greenpeace’s separation of the two issues, however, and treated them as one. It mandated Dutch help with Bonaire’s adaptation but also ordered the Netherlands to reduce its 0.35 per cent of global CO2 emissions to approximately 0.23 per cent, even though moving the global needle by 12 one-hundredths of one per cent would involve great cost. This is a rounding error presented as a legally required national policy. How much it will reduce the effects of global climate change on Bonaire the court didn’t say.

Does a butterfly flapping its wings in Amsterdam really cause a hurricane on Bonaire? The court apparently thought so.

Chinese cars can’t cross from Canada to U.S., Trump’s envoy says Autos

Chinese cars can’t cross from Canada to U.S., Trump’s envoy says

Suncor reveals expansion plans as key oilsands mine enters its last decade Energy

Suncor reveals expansion plans as key oilsands mine enters its last decade

Advertisement 2Story continues belowThis advertisement has not loaded yet, but your article continues below.document.addEventListener(`DOMContentLoaded`,function(){let template=document.getElementById(`oop-ad-template`);if(template&&!template.dataset.adInjected){let clone=template.content.cloneNode(!0);template.replaceWith(clone),template.parentElement&&(template.parentElement.dataset.adInjected=`true`)}});

Old Age Security reform is a good idea; arbitrary clawbacks are not Personal Finance

Old Age Security reform is a good idea; arbitrary clawbacks are not

Snowbirds moving back home drives high demand for cottage properties Real Estate

Snowbirds moving back home drives high demand for cottage properties

Canada's economy is on a 'rollercoaster' that the Bank of Canada will have to ride, economists say Economy

Canada's economy is on a 'rollercoaster' that the Bank of Canada will have to ride, economists say

The principle of proportionality requires that remedies should be no more than necessary to address the harm. If the harm is “Bonaire will flood” yet 99.65 per cent of the cause lies outside the defendant’s control, an order for it to spend tens of billions of euros reducing only a fraction of its 0.35 per cent influence is grossly disproportionate.

The Bonaire blueprint invites Canadian judges to step out of the world of reality and into the world of symbolism. It suggests that a court should order mitigation, not because it works, but because it sets what the court considers a moral example.

If Canadian judges do follow the Dutch court, and it’s hard to believe they won’t be tempted to, they won’t just be adopting Dutch legal philosophy, they will be importing Dutch energy prices, too. At the moment, the average Dutch household pays approximately 37 cents Canadian per kWh for electricity. Our national average remains closer to 16 cents per kWh, meaning Dutch electricity already costs more than double ours. The disparity is also seen at the pump. While Canadians have been shocked to see regular gas hitting $2.00 per litre in many cities this wartime spring, Dutch drivers are paying C$3.62 or so per litre. Moving to the Dutch legal ideal would mean nearly doubling our current pain at the pump and seeing home-heating and power bills skyrocket.

These cases are, at heart, political questions masquerading as legal ones. They turn on policy determinations about how, whether and to what extent the federal or provincial government should prioritize GHG emissions over other urgent priorities. The elected branches of government should be deciding that. When a court usurps this role it is no longer adjudicating, it is practicing social engineering. That’s not part of the judicial job description, although some judges seem not to know that.

Andrew Roman is a retired litigation lawyer.

Share this Story : Financial Post Copy Link Email X Reddit Pinterest LinkedIn Tumblr

Postmedia is committed to maintaining a lively but civil forum for discussion. Please keep comments relevant and respectful. Comments may take up to an hour to appear on the site. You will receive an email if there is a reply to your comment, an update to a thread you follow or if a user you follow comments. Visit our Community Guidelines for more information.

© Financial Post