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Snapshot

  • In November 2021, at the 26th Conference of the Parties to the UN Climate Change Convention, Australia’s failure to join the Glasgow pledges to cut methane emissions and phase out coal, failure to submit a stronger target while other countries revised theirs, and failure to redirect fossil fuel subsidies, were generally viewed as undermining its efforts to cooperate.
  • Meanwhile, in domestic courtrooms around the world, a question is brewing, and it was one of the hottest legal topics this year: when domestic governance is weak, what role do local courts play in addressing the climate crisis?
  • Two recent and noteworthy Australian cases, Bushfire Survivors for Climate Action Inc v Environment Protection Authority and Sharma v Minister for the Environment, show the interplay between the separation of powers in limiting courts’ reach vis-à-vis the executive, and the rule of law requiring government actors to be held accountable to their legal obligations.

All eyes were on Glasgow last month, where Prime Minister Scott Morrison presented Australia’s new net-zero by mid-century commitment at the 26th Conference of the Parties to the UN Climate Change Convention. The commitment supplements Australia’s pledge to reduce emissions, economy-wide, by 26-28% below 2005 levels by 2030 under the Paris Agreement. The Paris Agreement is the accord presently in force under the United Nations Framework Convention on Climate Change.

Unlike its main predecessor, the Kyoto Protocol, the Paris Agreement allows parties to choose their own ‘level of ambition.’ Collectively, the goal is to limit global average temperature rise to 1.5-2°C above preindustrial levels. But the Paris Agreement is not prescriptive in how this should be achieved between nations. Accordingly, Australia has no binding obligation to mitigate emissions to a specific level. Rather, it self-determines what is ‘fair in light of national circumstances.’ This means it can choose both a level of ambition and an equity paradigm in support of that ambition.

From a legal perspective, this is more or less as permissive as it sounds, notwithstanding an inbuilt ratchet mechanism which requires countries to set progressively stronger targets over time. However, the Paris Agreement’s modus operandi is political pressure. Public call-out by national leaders, carbon border adjustment taxes, and exclusion from multi-party coalitions are how laggards are deterred.

Australia’s failure to join the Glasgow pledges to cut methane emissions and phase out coal, failure to submit a stronger target while other countries revised theirs, and failure to redirect fossil fuel subsidies, were generally viewed as undermining its efforts to cooperate.

When leadership lags

Meanwhile, in domestic courtrooms around the world, a question is brewing, and it was one of the hottest legal topics this year: when domestic governance is weak, what role do local courts play in addressing the climate crisis?

Australia is, in many ways, a prime place to test this question. It is highly vulnerable both to the physical impacts of climate change, including phenomena such as extreme weather events and ocean acidification, and to the ‘transition impacts’ – those adverse impacts that will manifest as a result of the global economic and social transition to a low-emissions future, particularly if the domestic economy does not strategically decouple from fossil fuels. Additionally, Australia has never maintained a national climate law to centralise the implementation of economy-wide mitigation. Attributable to this combination of factors, and the now widely-held view that domestic policies are inadequate, Australia is second only to the US in terms of the number of climate-related legal cases brought in one country so far.

In this article I briefly highlight two recent, noteworthy Australian cases. Each case shows the interplay between the separation of powers in limiting courts’ reach vis-à-vis the executive, and the rule of law requiring government actors to be held accountable to their legal obligations. The cases also demonstrate that climate change is a domestic issue regardless of Australia’s international pledges or how they are perceived; one which would likely call for domestic action even if there were no global framework such as the Paris Agreement.

Bushfire Survivors

In Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 (‘Bushfure Survivors’), the Land and Environment Court issued the NSW Environment Protection Authority (‘EPA’) with a mandamus to compel it to perform a public duty to develop instruments to ensure the protection of the environment from climate change. The duty arises out of s 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW), which requires the EPA to ‘develop environmental quality objectives, guidelines and policies to ensure environment protection’. In the case, the Court heard evidence from former Australian Chief Scientist, Professor Penny Sackett, that climate change is the greatest present threat to the environment and people of NSW, and reasoned that the EPA cannot ensure environment protection if it does not address the environment’s greatest threat.

In interpreting s 9(1)(a), Chief Justice Preston recognised that threats to the environment change over time, finding that the law has flexibility to accommodate such change, and that the EPA must be attuned to the threats that ‘prevail and are pressing’ (at [66]). What was sufficient under the s 9(1)(a) duty to protect the environment from the ‘pollutants of yesteryear’ will not necessarily be sufficient today (at [67]). The EPA was neither required to guarantee environment protection (the provision was interpreted as establishing an evaluate standard or norm in accordance with which instruments need to be developed (at [38])), nor to align its instruments with a particular global temperature pathway (the duty was not so specific, and it was not for the Court to determine legitimate policy options (at [97])).

From over 400 documents submitted by the EPA as potentially discharging its duty, Preston CJ found that none were adequately directed toward climate change, observing the general and ‘trite’ way in which climate change was addressed (at [136]), where it was addressed at all. This led to a conclusion that the duty remained unperformed (at [142]).

The case was brought by a group of people, including landowners and firefighters, affected by bushfire. Their role as applicant in the case highlights the links between the regulation of carbon pollution, climate change, bushfire risk, and the lives and livelihoods of those affected by fire. Bushfire Survivors is the first successful action-forcing case of its kind in Australia.

Sharma

Sharma v Minister for the Environment [2021] FCA 560 was the first court decision anywhere in the world to find a common law duty of care to protect people against climate-related impacts, owed by a member of the executive government in the performance of their functions under statute.

Australia’s federal Environment Minister, currently Sussan Ley, is required under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to determine whether to approve or reject major project proposals, including new coal mines, that are likely to have a significant impact on protected aspects of the environment (ss 130; 133). Upon hearing an application for an injunction preventing the approval of a particular coal mine, brought by a group of children representing all children under 18 and resident in Australia at the commencement of proceedings, the Federal Court found the novel, tort-based duty in May. The duty obliges the Minister to take reasonable care in the exercise of her approval powers to avoid causing personal injury or death to Australian children arising from carbon dioxide emissions (Sharma v Minister for the Environment (No 2) [2021] FCA 774). Justice Bromberg did not grant the injunction, unwilling to pre-determine the Minister’s decision.

The Minister’s appeal was heard in late October by the Full Federal Court. Counsel for the respondents (the children) noted that the appeal was not about political questions such as how to respond to climate change, ameliorate its effects, or manage its impacts, and that their arguments did not rely on the Paris Agreement. ‘What national governments agree, and what policies they adopt, does not concern the common law, and formed no part of the respondents’ case’, they submitted (respondents’ submissions at [15]). Instead, pointing to a spectrum of possible future worlds described for the Court by the expert evidence of Emeritus Professor Will Steffen, the respondents argued that in the last few decades of this century, Australian children will live in conditions in which each is more likely to suffer personal injury or death directly caused by heat and fire or smoke, and to which the carbon presently captured and stored in the coal project in question in the case will, on being burned, become a necessary cause of the concentration that causes those harms, whatever future world eventuates (at [10]-[11]).

The Minister submitted, inter alia, that the duty interferes with the exercise of the approval power such that it cannot be regarded as sitting harmoniously with the statute and is therefore incoherent (appellant’s submissions in reply at [4]). She also submitted that the Court should adopt the opinion of the NZ Court of Appeal in Smith v Fonterra Co-Operative Group Ltd [2021] NSCA 552 (‘Smith’) that climate change cannot be appropriately or adequately addressed by common law tort claims (appellant’s supplementary submissions).

The respondents reasoned that ‘[i]mposing duties on those whose conduct causes harm to others has always been the method of the common law, and an institutional responsibility of the judiciary’ (respondents’ submissions at [13]). They sought to distinguish Smith on several grounds including that NZ has a comprehensive legislative framework to address climate change whereas Australia does not, and that the duty in Smith would have applied to all private companies and individuals (had it not been struck out) rather than one minister (respondents’ supplementary submissions).

At the time of writing, the Full Federal Court’s judgment has not been delivered.

Next steps

NSW Environment and Energy Minister, Matt Kean, has stated the EPA will not appeal the finding in Bushfire Survivors. Instead, it accepts the decision and will focus on giving it full effect. This means the EPA will begin directly addressing greenhouse gas emissions. It is likely this will influence other state-level EPAs around the country, and could serve as a warning signal for any government authority that is required by statute to protect the environment.

Indeed, shortly after the decision was handed down in the Land and Environment Court, Environment Victoria brought proceedings against the Victorian EPA as well as the operators of Victoria’s remaining coal power stations in the Victorian Supreme Court. Environment Victoria is alleging that decisions made by the EPA regarding the power stations’ licenses were not made in accordance with the law. This case will be the first test case of Victoria’s Climate Change Act 2017.

Meanwhile, Ley has already approved the coal mine that was the subject of the decision in Sharma, despite the duty. In her reasons for decision, she relied on (1) the market substitution argument, aka ‘drug dealer’s defence’ (if we don’t mine the coal, someone else will), and (2) the ‘not our problem’ argument (emissions count toward the country burning not the country mining). The market substitution argument, now well-worn in Australia, posits that the children will not be affected in a net way by Australia mining new coal. The not our problem argument, also often drawn upon, is more relevant to international emissions reporting and accounting than it is to the question of whether actions in Australia unlock a chain of causation that contributes to global climate change, since that question does not depend on who reports the emissions.

Looking ahead to 2022

Undoubtedly, we can expect to see more climate change cases brought in our courtrooms next year and in years to come, as the bounds of the existing law are further tested, and as new climate policies are created and legislated.

Two suits to watch, both initiated in recent weeks, are Pabai Pabai and Guy Paul Kabai v Commonwealth of Australia (Federal Court), and Nature Conservation Council of NSW Inc v Minister for Water, Property and Housing & Anor (NSW Land and Environment Court). In the former, First Nations leaders from the Gudamalulgal Nation of the Torres Strait Islands are complaining of the threat of sea level rise to their culture and their home. They are arguing that the Commonwealth Government owes them a duty of care to protect against this harm by reducing emissions and by implementing necessary measures to protect the environment. In the latter, the Nature Conservation Council of NSW is challenging a water-sharing plan for the Murray-Darling Basin, alleging NSW state ministers failed adequately to consider climate change when making the plan.

Characterised by chains of causation, multiple actors, cumulative impacts, and diffuse downstream effects, climate change is a complex problem. Clearly, it will be one of the foremost legal challenges of the decade.

Further reading: Laura Schuijers and Margaret A Young, ‘Climate Change Litigation in Australia: Law and Practice in the Sunburnt Country’ in Climate Litigation: Global Perspectives (Brill, 2021).

 


Dr Laura Schuijers is a research fellow and lecturer at the University of Melbourne. She will join the University of Sydney’s law faculty in January.