Trans Mountain Appeal

Jennifer Nathan

Help Address Climate Change in the Courts

This case raises serious questions about climate change and carbon emissions, and about ethics and disobeying the law. If we continue on the present emissions path, by the time children now about two or three years old complete high school, the concentration of carbon dioxide and other greenhouse gases in the atmosphere will exceed 450 parts per million CO2eq, bequeathing to them a dire future.

There are times when we must disobey the law. If we are lucky, we may live our entire lives without being confronted by such a time.

Sentencing Statement, David Gooderham, March 11, 2019


Shortly after signing the Paris Agreement in December 2015, the Government of Canada approved the Trans Mountain Pipeline expansion, a project that will increase bitumen shipping capacity by 590,000 barrels per day – enough to move 25% of Canada’s planned future expansion of oil sands production to 2040.  The impact of that future expansion on climate was not considered in the National Energy Board’s environmental approval process, and was not accounted for in the government’s upstream emissions assessment. A third process, the Federal Government’s Ministerial Panel Report, concluded that the question of whether this expansion of oil sands production can be reconciled with our emissions reduction commitments under the Paris Agreement had not been answered.  
A legal process that concludes, without evidence, that Canada can continue to expand the fossil fuel economy and still meet our emissions reduction targets is not a legitimate process.

Nobody knew this better than retired civil litigation lawyer David Gooderham. He had read the reports generated during the approval process, starting back in 2013, documenting the emissions numbers from the Canadian government’s own reports, examining our international agreements, and preparing written submissions to government panels, raising his concern. When the approval of the Trans Mountain project occurred in November 2016 without any assessment of the emissions implications, he knew our government had refused to delve into climate change and was embarking us on a recklessly destructive path. 

This so concerned Gooderham that he decided to develop a legal challenge, to compel the Canadian legal system to examine the emissions and climate implications of this project, which is premised on plans by government and industry that Canada will continue to grow oil output for another twenty years.

He took direct action on Burnaby Mountain to block the construction of the Trans Mountain expansion, expecting arrest. This was not done on a whim, but after carefully preparing a written Outline of Proposed Evidence to show the court the dire threat climate change imposes and the severe consequences of further emissions growth. 

He was joined in court by retired science teacher Jennifer Nathan who shared his concerns about the mounting scientific evidence and lack of government action in the ever decreasing time frame for limiting warming to below 2°C.

In our legal case, we are relying on the common law defence of necessity, which holds that, in a situation where there is  "a clear and imminent peril", conduct disobeying the law undertaken by a citizen to avoid the peril (in this situation direct action to halt or delay the construction of the Trans Mountain pipeline expansion) can be excused from criminal liability. But to succeed in that defence, we have to prove the existence of an imminent peril.


The evidence cited in our court application shows that even if all of the countries in the world (including Canada) were to fully implement all the commitments they have already made under the Paris Agreement to reduce their own national emissions by 2030 (referred to as their Nationally Determined Contributions or “NDCs”), the surface of the earth by 2030 will be irrevocably committed to warming that will far exceed the promised 2°C threshold. Our summary of expert evidence explains the crucial importance of what happens in the next twelve years:

Looking beyond 2030, it is clear that if the emissions gap is not closed by 2030, it is extremely unlikely that the goal of keeping warming to well below 2°C can still be reached. Even if the current NDCs are fully implemented, the carbon budget for limiting global warming to below 2°C will be about 80% depleted by 2030. Given currently available carbon budget estimates, the available carbon budget for 1.5°C warming will already be well depleted by 2030.

—   UN Emissions Gap Report 2017, Executive Summary, p. xiv (emphasis added), cited in Part 17 of our Outline of Proposed Evidence, at paragraph 17.24

The available expert evidence clearly shows the length of time remaining to avoid the most serious outcome (i.e., just twelve more years, to 2030), and it clearly defines the size of the emissions “gap” that would have to be closed within that time period, in order to keep warming within the 1.5°C limit, if we can, or to well below 2°C limit, as we hope to do.

The emissions “gap” is the difference between the expected level of global emissions by 2030 if we continue on the present path, and the reduced levels needed to meet our climate goals.  This graph published in the UN Emissions Gap Report 2018 describes the massive scale of cuts needed by 2030 to keep within these crucial limits. 

The window of opportunity to achieve those goals, if they can be achieved, is brief and unforgiving. Unprecedented cuts in the annual level of emissions would have to start on a global scale by 2020, and be repeated every year through the next decade. In the absence of deep cuts in the annual level of global emissions within that timeframe, by 2030 the atmospheric concentration level will have exceeded 450 ppm CO2eq, which commits us to warming above 2°C.

The evidence we seek to put before the court will prove that in order to achieve the needed cuts over the next twelve years, oil consumption worldwide (which generates 34% of CO2emissions) must “peak” and start to decline by 2020. Unfortunately, the evidence also shows that Canada, and the other six leading oil suppliers to the world market, are all committed to increase their oil production to at least 2040.     

At a two-day court hearing on December 3-4, 2018, the judge refused to allow us to even call evidence to prove our case. In written Reasons for Judgment, released six weeks later, he rejected our right to bring evidence forward to prove the necessity defence:

On the evidence the applicants seek to offer, rising temperatures, to a level that is catastrophic to life, is a process that has been happening over many decades. Despite a historical lack of initiative to curb emissions over these same decades, adaptive societal measures may be taken to prevent such a dire outcome. Whether government, private industry, and citizens take these measures is a contingencythat takes these changes outside of “virtual certainty” and into the realm of “foreseeable or likely”(Latimer, at para. 29). Thus, it cannot be said that the objective element of the modified objective test is satisfied.

— Reason for Judgment, para. 55, p. 3–31

The judge has decided that there “is a contingency” that the serious impacts caused by climate change can be averted. He says “adaptive societal measures” may be taken in future to prevent a catastrophic outcome. A contingency, of course, is a possibility, but not a certainty.

Because the judge finds such a contingency exists, the peril is merely “foreseeable or likely” - but not “virtually certain”. 

For that reason, the judge has decided that we are not facing an “imminent peril.”

Gooderham and Nathan have been found guilty of criminal contempt of court and while Nathan faces 150 hours of community service, Gooderham faces 28 days in jail. 

The Appeal

We launched an appeal of judge’s decision on March 11, 2019.  We are asking the B.C. Court of Appeal to overturn this decision, and allow us to call expert evidence about climate science and the fateful implications of continuing to expand Canada’s oil sands production to 2040, at a full trial.

The appeal is expensive. We have already spent a little more than $25,000 of our own money on the first stage of this litigation, in the preparation of application and the hearing December 3-4, 2018, and the steps taken up to filing the appeal on March 11. We expect that the legal costs of the appeal stage will be about another $25,000, and for that reason we are asking for your help.  Join us in bringing the defining issue of our time to the one place where the facts matter!

Legal documents can be found here: