Do municipalities have a duty to adapt to climate change?

As extreme weather events linked to climate change hit Canadian municipalities increasingly hard, what is happening to the risk of municipal governments being sued for the resulting damage? The case law has not changed yet, but the steady accumulation of damning facts is preparing the groundwork for huge claims in the future.

Climate change impacts on municipalities

In 2013, severe weather insured losses reached an all-time high of $3.2 billion, primarily due to ice storms in Ontario and the Maritimes and flooding in Alberta. This followed four years of natural disaster losses that exceeded $1 billion.¹

This spring’s powerful report from the Intergovernmental Panel on Climate Change (IPCC) concluded with “medium confidence, based on high agreement and medium evidence” that:

Climate change will have profound impacts on a broad spectrum of infrastructure systems (water and energy supply, sanitation and drainage, transport and telecommunication), services (including health care and emergency services), the built environment and ecosystem services. These interact with other social, economic and environmental stressors exacerbating and compounding risks to individual and household well-being … ²

In North America specifically:

Projected increases in flooding … may affect sectors ranging from agriculture and livestock in southern tropical Mexico … to urban and water infrastructure … Floods could begin earlier, have earlier peaks and longer durations (e.g., southern Quebec basin). Urbanization can compound the impacts of increased flooding due to climate change, particularly in the absence of flood management infrastructure that takes climate change into account … [One study’s authors] estimate that annual riverine flood losses in the USA could increase from approximately $2 billion now to $7-$19 billion annually by 2100 depending upon emission scenario and economic growth rate.³

The report also finds strong evidence that adaptation measures such as “[r]educing basic service deficits and building resilient infrastructure systems” can significantly reduce these risks.⁴ If so, are municipalities vulnerable to lawsuits if they don’t pursue such adaptation measures?

Is there a duty to adapt?

In general, tort law applies to municipalities in the same way that it applies to any ordinary corporation. Typical torts claimed against municipalities include nuisance, negligence, and failure to warn.

Municipalities in Canada have considerable protection against private lawsuits for nuisance arising from the operation of their water and sewage works. In addition to the traditional defence of statutory authority, most provinces adopted a defence of statutory immunity. This means that municipalities can rarely be successfully sued in nuisance because of a backup in a storm or sanitary sewer.

However, these statutory immunity provisions are not iron clad, and courts tend to look for ways around them. In particular, statutory immunities do not help where a municipality has been negligent. Courts are much quicker to find municipalities negligent than they are to impose similar liability on senior governments.

To succeed in a claim of negligence against a municipality, a plaintiff must prove:

• the municipality owed that plaintiff a duty of care;
• the municipality breached that duty of care, by failing to meet the requisite standard of care;
• the breach caused damage to the plaintiff; and
• the damage was reasonably foreseeable, i.e., not “too remote.”

So, what happens if:

• a municipality knows that particular parts of its infrastructure are so inadequate, or so inadequately maintained, that they make specific private properties particularly vulnerable to damage from severe weather;
• the municipality could readily reduce the risk, e.g., by changing how it maintains or operates its existing infrastructure;
• the municipality does nothing; and
• the damage happens?

The steady growth of scientific evidence about the increasing risk of extreme weather, and the increasing frequency of such weather, should make it easier for plaintiffs to prove that their damage was “reasonably foreseeable.” It should also increase the standard of care.
In these circumstances, the owners and occupants of the specific private properties that are known to be particularly vulnerable could have a strong claim against the municipality for negligence.  MW

1    Insurance Bureau of Canada, “Canada inundated by severe weather in 2013: Insurance companies pay out record-breaking $3.2 billion to policyholders” 20 January 2014 .
2    Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts, Adaptation, and Vulnerability, Vol. 1 Global and Sectoral Aspects, Chapter 8: Urban Areas, at p. 3, .
3    Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts, Adaptation, and Vulnerability, Vol. 2 Regional Aspect, Part 26.3.2.3. Flooding .
4    Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts, Adaptation, and Vulnerability, Vol. 1 Global and Sectoral Aspects, Chapter 8: Urban Areas, at p. 3, .

by DIANNE SAXE and MEREDITH JAMES

as published in Municipal World, July 2014