A public right to a healthy global atmosphere
Despite the urgent need to address climate change, many Canadians, including lawyers, have assumed that the problem of climate change (or at least our lack of effective, collective response to it) is largely a political one.
But what if the people of the world have a legally recognized right to a healthy global atmosphere? That would mean that large scale emissions of greenhouse gases, by negatively impacting the health of the global atmosphere, are illegal in that they violate this public right. The legal recognition of such a right would raise a wide range of legal and political questions including the possibility of:
- lawsuits being filed against large-scale emitters of greenhouse gases, as is already occurring in the U.S.;
- questions about the government’s legal and political responsibility to protect the public’s right to a healthy atmosphere; and
- the courts interpreting environmental and other legislation in ways that protect the right to a healthy atmosphere.
Clearly the implications are huge – and yet there has been very little discussion of whether or not the public has such a right – until now.
The Twitter Moot Problem
The 2012 Twitter Moot assumes that the Government of Canada – seeking to understand its obligations to the public – has asked the Supreme Twitter Court of Canada to rule on whether or not there is a public right to a healthy global atmosphere. The government has the authority to make this type of request, known as a “reference,” under the Supreme Court of Canada Act.
The Twitter Moot Problem outlines the legal question - the existence of a common law public right to a healthy atmosphere - and provides background on the legal basis for the right. However, in brief, the courts could recognize the public right to a healthy atmosphere on the basis of:
- The public right to air. The public right to air is recognized in a range of cases. By extending this public right to address not only local air pollution problems, but the global climate crisis, the courts could recognize a right to a healthy global atmosphere;
- Time immemorial reliance on the global atmosphere. It goes without saying that the public has benefited from the global atmosphere, and its ability to regulate temperatures, since our beginnings as a species. In general the courts will recognize legal rights that have been exercised since “time immemorial;” and
- The nature of the global atmosphere. The global atmosphere is inherently public and incapable of ownership, and we all rely upon it for our very existence. The courts have long recognized that resources with such characteristics are inherently public.
The Twitter Moot participants should feel free to base their submissions and arguments on materials identified in the Twitter Moot Problem, as well as adding their own arguments.