No leave for Friends of the Earth

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The Supreme Court of Canada has dismissed an application for leave to appeal last year’s Federal Court of Appeal’s decision in Friends of the Earth Canada v. Ministry of the Environment. Friends of the Earth (FOTE) had launched the suit to force Ottawa to comply with the Kyoto Protocol Implementation Act, which requires the federal government to take concrete action to meet its international commitments to fight climate change.

It’s hard to disagree with FOTE’s contention that the government is, in this case, disregarding the will of Parliament. But the Federal Court of Appeal ruled that the law itself wasn’t justiciable – in other words, it has no adequate resolution to offer for the dispute.

A word about appeal applications before the Supreme Court: Only those which raise questions of national importance are granted. Admittedly, climate change seems as good a candidate as any in this regard. So why did the Court refuse to grant leave? It’s always a bit of a mystery. One of the top court’s privileges is that it need not give its reasons.

Now, it has sided with environmentalists in the past — not least of which was upholding right to launch environmental class action lawsuits — but one gets the feeling it was mindful to show deference to the executive branch of government (which, as it happens, has not always shown deference to the legislative branch). But at the end of the day, the Supreme Court likely drew the same conclusion as the the lower courts. The law simply isn’t enforceable, which means the law was poorly designed to begin with.