For immediate release:
June 29th, 2020
Court Hearing available live via Zoom:
- BC Court of Appeal Hearing: July 7th, 2020: R v David Anthony Gooderham (CA45950) and Jennifer Nathan (CA45953)
- Zoom Access: scroll to PUBLIC LINK TO VIDEO CONFERENCE APPEALS – check: Weekly Hearing List
- Time: 10:00 a.m. Pacific Standard Time
- Website and all legal documents: https://dagooderham.com/legalaction/
- Contact for background or appellant interviews: Lawrence Reason: 604-524-5680 or email: firstname.lastname@example.org
Trans Mountain Pipeline and the Imminent Peril of Global Warming:
BC Court Case moves step closer to first-in-Canada
‘climate necessity’ defence
Vancouver, B.C. – Scientific evidence concerning the expansion of Canada’s oil sands and the imminent peril of rising global carbon emissions compelled retired civil litigation lawyer David Gooderham to take a drastic step, given his lifelong career in law. He was arrested in August 2018 for blocking access to the Trans Mountain Pipeline Project’s Westridge Marine Terminal work site, and now faces a 28-day jail sentence for disobeying a court injunction.
As a science educator immersed in the reports and writing of climate scientiststhrough the course of her teaching career, Jennifer Nathan felt compelled by the available evidence to take similar action. She was arrested in March 2018 for blocking access at the Trans Mountain Pipeline Burnaby terminal worksite.
Both Gooderham and Nathan concluded they had no legal alternative to preventing or halting, in the public interest, a project that directly adds to and profoundly aggravates accumulating levels of CO2 in the atmosphere, which by 2030 will be irreversible unless the world’s major economies stop massive fossil fuel burning. Federal approval of the government-owned Trans Mountain pipeline project expanding oil sands production 25% over the next 20 years is ‘the greatest roadblock to any contribution Canada could make to move the world away from catastrophic climate tipping points,” Nathan stated in her affidavit.
On July 7th, 2020, in the BC Court of Appeal before a panel of three judges, Gooderham and Nathan will seek to advance their case for a trial to proceed on the basis of a defence of necessity where there is a clear and imminent peril – an argument that rests on the notion that an act of civil disobedience can be necessary to avoid the greater harm of catastrophic climate change, and that encourages a fact-based assessment of the nature and magnitude of the climate peril and its imminence. The climate necessity defence has been used in 31 cases in the United States, 1 in Switzerland, 1 in France, and 3 in the United Kingdom. Gooderham and Nathan’s case is listed in the Climate Defence Project’s database as the sole case currently unfolding in Canada. A climate necessity defence has never succeeded in a Canadian case involving environmental protests, and is being watched both nationally and internationally.
The July 7th appeal arises after BC Supreme Court Justice Kenneth Affleck on January 17th, 2019 rejected their application at a pre-trial hearing to use the necessity defence at trial. He asserted in his ruling, without evidence, that there is “a contingency” that adaptive societal measures may be taken and that imminent peril is “foreseeable or likely” rather than “virtually certain.” Gooderham and Nathan were convicted at a trial on March 11th, 2019, after which they filed their Notice of Appeal to overturn Affleck’s decision.
The two appellants contend there was no study, report or opinion in their 119-page Outline of Proposed Evidence to be called at trial that suggests ‘adaptive social measures’ on a global scale could cut the annual level of global emissions 25% or as much as 50% below the current level by 2030 to avert climate catastrophe. Such an assertion would require expert evidence from energy economists and others who can assess the viability of policies and technological transformations that might achieve the required cuts. They will argue at appeal the narrow question at stake was to determine whether their subjective beliefs concerning an imminent peril were reasonable, taking into account their Outline of Proposed Evidence, and to allow them to proceed to trial.
If their upcoming appeal on July 7th is successful, Gooderham and Nathan would be permitted to present evidence based on their Outline and to call expert witnesses at trial – including climate scientists and energy economists – to address the full implications of building the Trans Mountain pipeline. As Gooderham, who will be addressing the court on his own and Nathan’s behalf, proposes to show, evidence about greenhouse gas emissions and climate science was excluded from every stage of the three-year public approval process before the Trans Mountain Pipeline Project was given final approval by the federal government on Nov. 29, 2016. The issue of how Canada can reconcile policies to grow oil output with its commitments to meet emissions targets to avoid catastrophic climate change has never been fully explored in a public forum.
After six years of writing submissions, reviewing studies, and engaging in inquiries, public processes, and government hearings – all of which failed to offer any realistic prospect of contributing to a reconsideration of the decision to continue expansion of oil sands production – Gooderham is convinced: “There is no avenue for consideration of this evidence other than bringing the issues before the court.”
The appellants seek at trial to introduce evidence, from experts and key reports, concerning Canada’s current and projected oil sands emissions, the role of technology in reducing emissions, mitigation scenarios, the significance of Canada’s commitments for the global emissions gap, evidence about the consequences of climate change, and more. They will, for example:
- introduce evidence to show that within the next decade, there are no policy measures or technological solutions that offer any realistic prospect that Canada’s projected oil sands emissions growth can be avoided, if we proceed with plans to increase bitumen production from 2.5 million barrels per day in 2015 to about 4.2 million barrels per day by 2030.
- show that even if all countries in the world, including Canada, were to fully implement all the commitments already made under the Paris Agreement of 2015 to reduce their own national emissions by 2030, the surface of the earth by 2030 will still be irrevocably committed to warming that will far exceed the promised 2 degrees Celsius threshold.
- call evidence showing the oil and gas sector, Canada’s largest emitting sector at 26% of the national total, will be unable to contribute any share of the country’s needed reductions (from the projected 722 million tonnes in 2020 to 513 million tonnes in 2030: a reduction of 200 million tonnes), because production will still be increasing.
- present evidence showing if oil sands production continues to expand to 2030 as currently projected, emissions in Canada’s other four main economic sectors would have to be reduced by about 50% to comply with commitments under the Paris agreement – and no government assessment or inquiry process has shown that is feasible.
For Gooderham, the ultimate goal is “to open the public discourse on a subject that has largely been treated with silence. It is useful and sobering to keep in mind that whatever happens, it will not be the experts who will make the decisions. It will be the elected politicians. My approach is that we should have access to the same information they have, so that we can test the soundness of the decisions they are making that will largely determine the outcome of Canada’s carbon reduction efforts to 2030.”
For Nathan the issue is urgent. “The approval of the Trans Mountain pipeline to facilitate growth of the single largest source of emissions in Canada was a clear choice to knowingly continue on a pathway of doing willful damage just a little while longer. We don’t have a little while longer.”
The B.C. Court of Appeal hearing is being made available to livestream July 7th at 10:00 a.m. Pacific Standard Time. Check the B.C. Court of Appeal PUBLIC LINK TO VIDEO CONFERENCE APPEALS – Weekly Hearing List for CA45950. All legal documents available here.