Waging a legal battle on climate change

Around the world, the courts are increasingly being used as a battleground in the fight against climate change. MLS News spoke with experts about what this means for business, government and the legal community.

By Kate Stanton.

In February, the NSW Land and Environment Court ruled against a proposal to build the Rocky Hill open-cut coal mine in Gloucester, a farming community in rural NSW. The court cited the mine’s impact on the social and environmental welfare of the town as one reason for rejecting the proposal. In an Australian first, Chief Judge Brian Preston also recognised the country’s obligations under the Paris Climate Agreement. It was a landmark decision, one that signalled how Australian courts could start approaching climate change, says Jacqueline Peel, a professor of environmental law at Melbourne Law School. “The court talked a lot about the impacts of the mine on climate change, not just for the local environment but in the broader global context,” Peel says.

The people bringing the case argued that you had to think about how this coal mine would contribute to greenhouse gas emissions overall.

The Rocky Hill mine decision is part of a growing, worldwide movement to tackle climate change through the justice system. Many environmental activists see litigation as a viable path – in addition to public protest and lobbying politicians – to creating change where governments have been slow to act. Brendan Sydes (BSc 1993, LLB(Hons) 1993, MEnv 2006), CEO of Environmental Justice Australia, says that in the absence of major policy developments, climate change litigation pushes courts to develop a jurisprudence around environmental law. “I think we really need solutions at all levels of government, but legal action has a really important role to play in continuing to raise those demands and force that change,” he says.

There is a sense that the political system hasn’t responded adequately and is not moving fast enough on these issues.

In the US, which has a history of legal challenges that initiate sweeping changes on issues such as school segregation and marriage equality, 21 young people have sued the Federal Government over policies that contribute to global warming. They argue that failing to act on climate change is violating their civil rights and the rights of future generations.

Sydes says such cases, which pit young people or other citizens against government or big business, can play a role in making the injustices of global warming that will be suffered by young people clear – even if they lose.“

The idea in some of the ‘youth versus government’ cases in the US is to not only ensure a credible legal case and to try and develop new legal doctrine around the public trust concept, but also to use … that case to draw attention to the issue,” he says.

The Sabin Center for Climate Change Law at Columbia University in New York, which tracks climate change claims, has logged more than 1000 climate cases around the world. In California, crab fishermen are suing oil and gas companies for causing climate-induced damage to marine areas that has wreaked havoc on their industry.

Some climate cases have been successful. In the famous Urgenda case in the Netherlands, nearly 900 people won their legal fight against the Dutch Government, forcing it to increase the ambition of its target for reducing greenhouse gas emissions.

In some ways, Australia has been slower to develop similar climate change litigation strategies, in part because the Constitution does not guarantee civil rights in the way it does in the US, Sydes says.

It’s not fertile ground for developing these sorts of legal strategies, but I think you can say with confidence that there will be attempts to pursue climate litigation against the Australian Government in the not-too-distant future.

Peel says it might be hard for an environmental group challenging a coal mine to show it has any financial interest in the outcome.

“Often, cases get stopped even before they get very far because litigants can’t establish standing.”

Litigation can be a huge drain financially, especially in Australia, where claimants can be held responsible for the other side’s legal costs if they lose. In 2016, for example, the Australian Conservation Foundation was ordered to pay legal costs to the Adani company, following the group’s unsuccessful bid to stop the Adani coal mine project in Queensland.

“If the other side has high-paid lawyers, those costs can mount very quickly, often well beyond the scope of communities or environmental groups to pay,” Peel says.

Australia also lacks federal laws that control emissions; there is no carbon price and no law that requires companies to limit their emissions.

“At the national level, there are not good legal hooks on which to hang your case,” says Peel.

“People have therefore become creative and tried to bring cases in a variety of ways.

”Activists have also begun to target corporations’ bottom lines. They can use corporate law to argue that companies have to disclose business risks, such as those caused by climate change, to their customers and shareholders.

In 2017, Sydes’ legal centre, Environmental Justice Australia, filed court proceedings against the Commonwealth Bank, prompting the company to begin disclosing climate risk in its annual reports.

The legal centre has also taken up the case of Mark McVeigh, a 23-year old suing his superannuation fund, REST, arguing that it failed to protect his investments from the impact of climate change.

Peel says this form of climate change litigation is gaining traction, particularly since the Paris Climate Agreement. Energy companies are beginning to see climate change as a threat to their bottom line, whether it’s through wasted investments or threat from litigation.

“There’s been a shift in the business community to understand that climate change might cause material financial risks for their business,” she says.

As a result of cases like the REST case and the Rocky Hill case, it’s clear that the business community and those who advise the business community, such as commercial lawyers, are beginning to take climate change litigation more seriously.

In March, the Reserve Bank’s Deputy Governor, Guy Debelle, said climate change could begin to affect financial stability, warning that “companies that generate significant pollution might face reputational damage or legal liability from their activities”.

Sydes says that he hopes the Rocky Hill case, and other lawsuits, send a message to the legal community about the need to come to terms with what climate change means for our legal system.

“I don’t think that lawyers, the legal academic community or the courts really fully appreciate the significance of the challenge from climate change, and just what it might mean in terms of a transformation of our legal system,” he says.

“Courts need to be grappling with these issues.”

Banner image: Residents of Gloucester celebrate after winning a case in the Land and Environment Court in Sydney against the proposed Rocky Hill open-cut coal mine in February this year. Image credit: Janie Barrett, Fairfax Media.

This article originally appeared in MLS News, Issue 21, June 2019