New skils needed

Due to these changing demands in regards to climate litigation, the legal profession will evolve as specialists, with climate-related legal knowledge and skills becoming progressively more important. Lawyers in this space will also need to “be alive to the unfolding legal implications of climate change and its consequences”, something which Law Council of Australia president Dr Jacoba Brasch QC said was crucial moving forward.

“A broad spectrum of Australian individuals, businesses, community sector organisations and government agencies face new risks, liabilities and challenges in light of these physical and transition risks of climate change, and increasingly, are seeking legal advice to navigate them.

“Climate change litigation, globally and domestically, is raising novel causes of action across multiple areas such as environment and planning, administrative, corporations, tort and negligence, consumer, contract, insurance and human rights law. With the proliferation of such litigation, some bodies have described climate change as presenting ‘litigation risk’, as well as physical and transition risk,” she said.

“Environmental lawyers, and indeed lawyers in a wide range of practice areas, are already being supported by shifts in the content of legal education and professional skills development by universities and continuing professional development providers. It will be important to ensure that current and future generations of Australian lawyers are well-equipped to meet the challenge.”

Climate litigation will also take many forms – something that organisations like the Environmental Defenders Office have seen in excess in recent years. EDO director of legal strategy Elaine Johnson warned that the “explosion” of climate litigation would only continue as the climate crisis progresses.

“We have known for a long time that climate change poses existential threats to all aspects of our environment, which supports our lives and livelihoods. Yet decades of modelling, analysis and negotiations have failed to ensure that global temperature rise will be limited to the Paris Agreement goal of 1.5 degrees Celsius.

“Litigation is often a tool of last resort, and it is no different in the case of climate change. We are now entering the last critical decade of climate action. Without dramatic and urgent reductions in emissions by 2030, our climate will be on a trajectory towards catastrophic and irreversible changes in the Earth’s systems and processes. As we start to see the early impacts of climate change take hold, such as the horrific bushfires of 2019/2020, it is inevitable that the issue will be taken up in the courts,” she said.

“As climate change, and climate risks, begin to pervade every aspect of our society, so too climate litigation will follow. That means that we’re seeing more cases being filed against corporations and governments directly for a range of climate-related risks and harms. We’re seeing torts-based claims brought by cities and states against carbon majors in the United States, human rights claims brought by individuals against corporations and governments for climate harm, and corporations and consumer law claims brought by shareholders against companies that fail to properly disclose climate-related business risks.”

Evolving advocacy

In addition, activists have begun to use the courts as a forum for influencing decision-making and seeking policy change. According to Edwina Kwan, King & Wood Mallesons international arbitration and climate law partner, “bringing complaints or filing disputes including class actions” is just a small part of this.

“The perceived lack of guidance by governments and regulators and the willingness of courts in particular in Australia to make decisions regarding these issues has increased the willingness of claimants to bring these climate change cases to force behavioural change. An increasing number of these claims are successful,” she said.

“The growing positive judicial reception of climate change related legal arguments suggests that where decision-makers do not consider climate change risks or impacts, they run an increasing risk of court intervention. The potential for judicial precedents which may have a transnational effect is likely to continue to motivate strategic litigation in other jurisdictions.”

In October last year, global law firm King & Wood Mallesons’ annual The Review: Class Actions in Australia 2020/2021 report revealed a record number of class action cases over the 2020-2021 financial year. With climate change already the second-most active jurisdiction globally, Ms Kwan said recent successful representative actions brought by youth litigants questioning government and business decision-makers’ consideration of climate risk have only reinforced the trend.

“The recent increase in climate change class actions reflects an emerging global trend of key decision-makers around the world being challenged and having claims brought by climate change activists,” she said.

“Globally, a significant number of these actions are being brought by children and youths, not seeking financial damages, but to compel behavioural change from government and businesses to act on the issue of climate change.”

This was seen in action during the Global Week for the Future Campaign in September 2019; 4,500 strikes and protests took place across 150 countries. This was the culmination of the school strike for climate movement, a “youth-led political advocacy and campaigning activity accompanied by several climate change cases with children and young people as the lead litigants,” as stated in The Law Society Climate Change Briefing Paper.

“Another trend is that litigants are increasingly interconnected and therefore there is likely to be related interest groups and knowledge sharing between those groups,” Ms Kwan added.

A recent case that represents this trend is the Torres Strait Islander community class action against the Commonwealth of Australia, challenging Australia’s failure to cut emissions and asserting that the government’s inaction will force their communities to migrate.

Torres Strait Islander communities are on the front line of the climate crisis and face an existential challenge due to rising sea levels driven by the burning of coal, oil and gas. If global temperatures rise by more than 1.5 degrees, then many islands in Gudamalulgal will become uninhabitable – meaning that Torres Strait Islander people would become Australia’s first climate refugees.

“The applicants are seeking an order requiring the federal government to reduce greenhouse gas emissions and prevent the inundation of islands in the Torres Strait through the implementation of necessary measures to protect their land and marine environment, cultural and customary rights,” Ms Kwan explained.

As the number of climate-related class action cases surge, it’s no surprise that the industry has seen an increasing number of other climate change litigation, via a number of other significant cases.

Greenpeace Australia Pacific made headlines last year as they went head-to-head in Federal Court against AGL, after outing the energy giant as “Australia’s biggest climate polluter” and accusing the company of “greenwashing” its image. This followed the release of Greenpeace’s Hero to zero: Uncovering the truth of corporate Australia’s climate action claims report, which pointed out that despite pledging to be carbon-neutral by 2050, AGL had not taken any meaningful steps towards climate change.

Starting in 2008, the ACCC has brought proceedings against a number of companies alleged to have made misleading environmental claims, including GM Holden, Prime Carbon, and Volkswagen, according to The Law Society Climate Change Briefing Paper. ASIC also made greenwashing a priority issue in its Corporate Plan 2020-24 and committed to “conduct[ing] surveillance to assess the extent to which product issuers are engaging in ‘greenwashing’ that results in consumer harms”.

Corporations have, and will continue to be, held to account, according to Ms Bullock, who pointed out a number of notable examples.

“In ACCR v Santos, the Australasian Centre for Corporate Responsibility is suing Santos over its claims that natural gas is ‘clean fuel’ and that it has a credible pathway to net zero emissions by 2040. In Abrahams v Commonwealth Bank of Australia, the court allowed long-term shareholders in the Commonwealth Bank of Australia to access internal confidential company documents to allow the shareholders to ascertain whether the bank has complied with its internal climate policies,” she said.

“Governments themselves are also seeking climate redress. The government of Vanuatu has announced its intention to seek an advisory opinion from the International Court of Justice to clarify the legal duties of large emitters of greenhouse gases with respect to present and future generations. Such an opinion would carry great legal and moral authority, and likely influence the decisions of domestic courts around the world.”

Another significant case worth noting is the Rocky Hill judgment delivered by the Chief Judge of the NSW Land and Environment Court in 2019, which was run by the EDO and described as “pivotal” by Ms Johnson.

“It was the first time that a court refused a coal mine on grounds which included climate impacts. The case was important because it established a nexus between the exploitation of fossil fuels here in Australia, the cumulative impacts from the emissions that would arise from the use of the coal product overseas, and the consequential climate impacts that would be felt locally. That decision was not appealed, and later that year, the massive Bylong Valley coal mine was refused on grounds which included climate change. It’s now unlikely that we would see a new greenfield coal mine being proposed or built in NSW,” she said.

“In August this year, EDO clients the Bushfire Survivors for Climate Action achieved a ground-breaking outcome when they were successful in obtaining orders from the NSW Land and Environment Court compelling the Environment Protection Authority to develop policies, objectives and guidelines to ensure environment protection from the impacts of climate change. It was the first time that an Australian court has ordered a government to take meaningful action on climate change.”

Unsurprisingly, the Australian Climate Roundtable stated in 2020 that climate change was increasingly having “a real and significant impact on the economy and community” and emphasised its support for the core Paris Agreement target – which Australia is not yet on target to meet.