AS THE Australian public decides it cares about the environment, and the issue gains prominence in Australian newspapers, environment lawyers are being forced to stay ahead of a “staggering” volume of policy change and case law, a leading lawyer has revealed.
Prime Minister John Howard’s recent appointment of high profile Malcolm Turnbull to take on the environment portfolio in the lead up to the election was a significant move, and reveals the extent to which governments and oppositions are still developing their environmental policies, Clayton Utz partner Nick Thomas told Lawyers Weekly.
For environment lawyers such as Thomas, being aware of where the ever changing policy on the environment is heading and what is happening in the law is becoming a huge challenge.
“As public interest in environmental issues develops, and as some of these big issues we are now facing become more prominent, governments are looking to establish their positions on those issues. A great example is climate change. Governments are still refining their positions. And of course water shortages — governments are still positioning themselves on water policy,” said Thomas.
As public interest in the environment soars, so does litigation in the area. Attributing part of the public’s interest to the fact that the environment affects them and the way people live, Thomas added that water shortages and climate change make the front pages of papers routinely at the moment.
But many laws also give the public the right to sue for a breach of environmental law, Thomas said. This has significant ramification on the work that lawyers do, as the public can become more involved in the actual operation of environmental law and policy. “That is a source of a huge amount of environmental litigation,” he said.
“If there is a breach of environmental legislation, then it is not only the people who are directly involved who would have a standing to sue, but any member of the community. So an environmental interest group, or somebody who lives miles away, or even a competitor, would have the right to sue to enforce the environmental law.
“That degree of public participation keeps environmental law in the spotlight, if nothing else. Everyone can get involved in its enforcement,” Thomas said.
Also affecting the tide of work for environment lawyers is the increased use of criminal law. Noting “there are few things more significant in the legal world than criminal sanctions”, Thomas said environment law comes with a “criminal punch”.
For the corporate world, director and manager liability is now a considerable concern, as both can be deemed liable for acts committed by the corporations that employ them. “A lot of environment laws are backed with criminal sanctions and that makes them very serious laws indeed, particularly when you are talking about huge maximum penalties,” Thomas said.
Lawyers will be forced to track various policies as they change, as well as understand where governments are heading on issues, more than they have had to in the past. “In some areas, environmental law seems to change almost on a daily basis,” he said.
“The amount of legislation that was passed last year and the volume of case law is quite staggering. I can think of several situations recently in which I have been advising a client on a particular issue and a court decision has been handed down — I have been aware of that decision in the morning and I have been advising a client on that decision later in the day. So the importance of being right up-to-date can’t be underestimated.”