Subscribe now to our Digital Magazine
left arrow SUMMER 2022

The legal ramifications of the climate crisis

As ocean temperatures rise and greenhouse gas levels reach record highs, the climate crisis is currently at a crucial point. And as climate issues become more prevalent, litigation in this space means environmental lawyers have their hands full.

Since 1910, Australia’s climate has warmed by approximately 1.44 degrees Celsius, resulting in an increasing number of heatwaves and raised fire danger. Moreover, all the major long-lived greenhouse gases in the atmosphere have continued to increase and are the highest they’ve been on Earth in over 2 million years, as stated in The Bureau of Meteorology and CSIRO State of the Climate 2020 report.

Late last year, Prime Minister Scott Morrison committed to getting Australia to net zero by 2050, before receiving a “very low” rating in the Climate Change Performance Index (CCPI) and coming last in the climate policy category – as, according to the report, “the experts believe that Australia has failed to take advantage of its potential, and other countries have outpaced it”.

With the spotlight increasingly on climate change as an important issue, the legal profession has experienced a surge in climate litigation as governments and corporations are held to account and urged to make meaningful changes to benefit the planet.

According to The Briefing Paper: Climate Change Litigation – Trends, Cases, and Future Directions, released by the Law Society of NSW in November last year, Australia has the second-highest level of climate change litigation activity in the world – second only to the United States. Additionally, the UNEP Global Climate Litigation Report: 2020 Status Review revealed that the number of climate litigation cases around the world has almost doubled over the last three years.


The role of litigation

General counsel for Greenpeace Australia Pacific Katrina Bullock said that the “rapid increase in climate litigation cases” has the potential to drive positive change and reshape government decisions.

“In countries like Australia, where the federal government has refused to commit to climate targets which would limit global warming to a range that is within the temperature goals outlined in the Paris Agreement, climate litigation is often viewed as a way to compel governments and corporate actors to implement stronger climate commitments,” she said.

“Climate litigation has the ability to fundamentally reshape the way governments and corporations perceive and respond to climate risks and opportunities.”

The rise in climate-related litigation means that the legal profession is, and will continue to be, heavily impacted by the climate crisis. According to a Climate Crisis Statement released by the International Bar Association in 2020, transactional disputes relating to a low-carbon economy will begin to increase in the coming years, with lawyers called in to represent the legal interests and rights of all sides. However, lawyers will also have a unique opportunity to help “shape climate policymaking” and have a leading role in strengthening the law and supporting responsible governance, added Ms Bullock.

“We are already witnessing an increase in the amount of advisory and transactional environmental legal work in the market as new renewable projects develop and companies who were traditionally built on the back of fossil fuel extraction seek to maintain their social license and follow demand into the low carbon markets. Alternative energy practices, regulatory affairs practices and practices which provide advice regarding climate risk reporting are booming,” she said.

“Firms who continue to service the fossil fuel industry, particularly where their clients are not implementing meaningful transition plans, could see this having an impact on business with non-energy clients. Moreover, such law firms may find themselves the face of the ‘big polluter’ in very public litigations, defending their client against allegations of climate change induced human rights abuses or greenwashing.”

Degrees Celsius
The amount of Australia’s climate has warmed since 1910

“Climate litigation has the ability to fundamentally reshape the way governments and corporations perceive and respond to climate risks and opportunities”

Cover story 2nd image

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.”

Arrow 1
Climate 1

‘Use legal skills to solve this wicked problem’: The role of lawyers in climate change debates, litigation and social change

The Australian legal profession will soon be in the thick of climate change litigation that will affect most areas of practice, clients and stakeholders.


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.

Wig & Chambe
Climate 2

Climate, cyber class actions are on the rise

As class actions in Australia reach an all-time high, cyber security and climate change are both spaces that will continue to experience an increase in class action cases moving forward.


“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.”

Wig & Chambe
Torres strait islands

Australian government to face ‘landmark’ climate class action

Island communities have demanded the Australian government take action regarding the climate crisis in a landmark class action case.


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.

Wig & Chambe
Torres strait islands

EDO scores ‘significant win’ for bushfire survivors

Bushfire Survivors for Climate Action, represented by the Environmental Defenders Office, has celebrated a court ruling that will compel serious climate change action to be taken.


Cover story 3rd image

The duty of the legal profession

From the Law Council’s perspective, the most pressing issues in the near future derive from the law’s role in “supporting effective action on climate change, including the development of new opportunities and the mitigation of transition risks,” according to Dr Brasch.

“The physical consequences of climate change and mitigation and adaptation measures also have economic risks and costs. Failure to accommodate these risks and costs potentially has broader economic consequences to the Australian economy,” she said.

“Australia’s international law obligations with respect to climate change should be fully implemented domestically – including Australia’s obligations under the United Nations Framework Convention on Climate Change, the Paris Agreement, and other relevant international agreements to which Australia is a party, including human rights treaties.”

“The physical consequences of climate change and mitigation and adaptation measures also have economic risks and costs”

According to Ashurst’s report: The Energy Transition Investment: Latest trends across the G20, released in November last year, almost 70 per cent of respondents said their organisation had already committed to a net zero target, with a further 28 per cent having one under development.

But as more organisations commit to net zero, courts will be under increasing pressure to “achieve climate justice”, said Ms Johnson.

“There is growing pressure on corporations to respond to climate risks, and it’s clear that corporations and consumer law will rapidly take up climate change issues. This year, EDO filed the first corporations and consumer law case against a major gas supplier, Santos, on behalf of the Australasian Centre for Corporate and Social Responsibility. Our client claims that Santos has engaged in misleading and deceptive conduct arising from its claims that gas is a ‘clean’ fuel, and that it has a credible pathway to net zero emissions by 2040,” she said.

“We can expect that in the near future, litigants will be looking behind the corporate veil and will be seeking to hold directors personally liable for failure to properly manage and disclose climate risk.”

However, despite the growing number of climate change-related cases in the Australian court system, gaps and uncertainties in the law still exist. Dr Brasch said that whilst “Australia’s domestic regulatory framework has been adapting to address the physical and transition risks of climate change,” there is still more work to be done in this space.

“These gaps and uncertainties have been addressed in different ways, including through regulatory guidance, litigation before the courts, and in some cases, royal commissions,” she said.

“While these approaches will remain important going forward, the next phase of development of Australia’s regulatory response to the physical and transition risks posed by climate change must offer long-term solutions with higher levels of ambition and predictability, including to enable government, business and civil society across all sectors of Australia’s economy to best manage the physical and transition risks posed by climate change.”

As corporations and governments are continually being held accountable for inaction surrounding climate change, Ms Bullock added that the Australian government needs to urgently implement policies to ensure a significant emissions reduction by 2030.

“Australia’s emissions reduction target must be at least 74 per cent below 2005 levels by 2030, with net-zero emissions reached by 2035. Analysis conducted by the Climate Targets Panel indicates that this is the target that is needed to comply with the goals of the Paris Agreement and limit the global average temperature rise to below 1.5 degrees above pre industrial levels,” she explained.

“This is the target that is needed to ensure a safe and healthy planet for future generations. The Morrison government’s current commitment is grossly inadequate, at 26-28 per cent below 2005 levels by 2030, and net zero emissions by 2050.”

However, the legal profession also has a critical part to play in these cases; as lawyers advise clients on the legal implications of climate change, they should be aware of the “unfolding legal implications of climate change” as well as “informed, skilled and ready to assist clients on climate change-related legal matters”, argued Dr Brasch.

“Legal professional peak bodies, including the Law Council, will also have an important part to play in promoting and defending the rule of law in the public interest and furthering the betterment of the law in the public interest on climate change issues,” she said.

“Importantly, this role will include ensuring that access to justice is readily available to Australians in need in the climate change context. While legal assistance bodies and pro bono service providers are already adapting to new legal demands linked to the physical risks of climate change – such as lost dwellings or livelihoods due to bushfires, floods, and droughts – they are doing so within an already strained, underfunded system.”

Likewise, Ms Kwan said that those working in environmental law need to continue to educate themselves on emerging and evolving climate change issues.

“As lawyers, we need to stay abreast of the developments in this evolving space and, in the case of greenwashing allegations and corporate governance, advise our clients to carefully review any disclosures that are made in relation to climate change commitments, as they will need to demonstrate they have reasonable grounds to support any representations contained in those disclosures, at the time which those disclosures were made,” she said.

“The question likely to be put to our clients, including directors and boards is what did you know, when did you know it and what did you do about it.”

Furthermore, the choice to refuse to implement or meet climate change and net zero goals in the next decade is no longer a viable one.

“As the world transitions out of fossil fuels to a zero-carbon economy, those who fail to keep up will be left exposed to liability for climate harm and their own failure to properly manage climate risks. It is clear that there are already a number of claims being formulated and tested around the world against those corporations, governments and individuals who are slow to act,” Ms Johnson added.

“In order to minimise the risk of liability, they must grasp the seriousness of the risks posed by their own actions or inactions. It is no longer reasonable to continue business as usual, as though the climate crisis and global transition will not eventuate. We are already in the critical decade. Change is coming whether we like it or not.”

Wig & Chambe

Climate 3

Majority of organisations working towards net zero

The vast majority of organisations have a strategic goal to move towards net zero emissions, a new report has revealed.


Got something to say about the digital magazine?