FIRST IT was tobacco and asbestos, but now litigators are expected to turn their sights on a new target — those responsible for climate change, according to environmental activists.
Although not entirely convinced litigators will have a case in the Australian environment like they have in the US, lawyers argue that directors should put in place risk management techniques to make sure they address these concerns.
Climate Action Network Australia (CANA) is hoping to launch a new legal initiative in the next few weeks. Although it won’t reveal the exact details of the initiative, CANA has a history of exploring legal avenues to make those that the organisation regards as responsible for global warming accountable for their actions.
In an interview with Lawyers Weekly, Phillip Freeman of CANA said the organisation has been looking at ways that companies can be held accountable for their greenhouse emissions. Lawyers overseas have also been looking at the issue, he said, following a trend in the US whereby large corporations are subject to litigation on global greenhouse warming.
Last year CANA wrote to 145 corporations across the country, including both resource companies and their financial backers, warning them that climate change could lead to a higher risk of litigation against them.
“The purpose of the letters was to alert directors to the issues and leave it up to them to make a risk assessment,” Freeman said. “This will allow them to do their job more effectively, but they could also inform us what they were or were not going to do.”
Companies that are being progressive in this area will see benefits in their bottom line, according to Freeman, but they are also going to “stay out of trouble in terms of reputational damage and legal ramifications,” he said.
But Freehills partner Tim Power is not convinced. “I think the difference between greenhouse issues and tobacco and asbestos is the science in proving the link between the cause and the consequence of the problem,” he said.
“Science is pretty compelling but proving someone’s greenhouse emissions are creating environmental problems is very, very difficult,” Power said. Instead, companies should be addressing their greenhouse gas emissions for community-minded reasons, and there are very compelling business reasons to as well.
There are government initiatives — “some in effect now and some foreshadowed” — to encourage companies to reduce their emissions in a way that doesn’t effect their business negatively, Power said.
There are “millions of reasons why people should be investing time and money in a way that doesn’t harm their business,” he said. “But fear of being sued is not really a very good reason [to reduce emissions].”
According to Gadens Lawyers partner Kym Livesley, anyone suing companies emitting greenhouse gases will have questions of proof to face, and he agreed with Power that they will have difficulty proving a link between the cause and the consequence of the problem. But, he said, “this doesn’t mean actions can’t be brought”.
Livesley argued that “it is hard to tell whether it’s frivolous or not… but it’s been threatened and people need to be cognisant of it, though you can’t overstate it either”.
“Directors should be aware of this type of activity and put appropriate risk management techniques to make sure”, he said. “What else can you do when people threaten like this? It’s a wide canvas they throw open.”
CANA’s Freeman argues there are potential actions under different parts of the law. The idea that triggered this around the world was a mass-tort law suit in which nations that were making significant contributions to the problem would be made liable.
“This action could be brought by individuals or nations, including small island states that are battling rising sea levels and unnatural weather conditions,” Freeman said.
Although a mass-tort law suit is a “difficult and serious” undertaking, and a lot of work would have to be done on causation, “it is also manageable”, Freeman argued. There had been several of these cases in the US and one recently in Germany, he said.
According to Freeman, there is frustration with the Federal Government and its stance on climate change, as well as with particular corporations that are working closely with the Government to frustrate efforts to remedy the problem of climate change.
There are a lot of people and companies who are losing out because of this climate change, Freeman said, including Australian farmers who are facing harsher droughts.
The Pacific island of Tuvalu has threatened to bring a lawsuit against Australia and the US. There has been bleaching of the Great Barrier Reef, bushfires and drought as a result of climate change.
But Freehills partner Power argued that such claimants are facing difficult cases. “They can’t sue the US and Australian governments for allowing the greenhouse emissions, but maybe they can for a lack of action to address the greenhouse emissions.”
“They could have a legitimate case about whether government actions are enough, but the government could say they can reduce greenhouse emissions without ratifying the Kyoto protocol.”
“It is government policy in both [the US and Australia] not to ratify at the moment. Through doing so they would be signing legally binding documents, and they say this puts industries at a competitive disadvantage.”
But, if any organisations are going to become subject to litigation on greenhouse warming, according to Power, the most obvious targets will be those that are perceived to be reacting slowly and inadequately to climate change issues. “If you were going to embark on a case, you would target the perceived worst offenders… But to actually assemble the case and win it would be a tough gig.”