In the not so far-off future, if your home is flooded by extreme rain or razed by an unseasonable bushfire, the first people to turn up on your property after the emergency crews could be bearing legal documents.
In Australia and around the world, crack teams of lawyers and eminent law schools are systematically exploring available legal options to sue for climate justice - or seeking to create new ones where they don't exist.
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| Chasing firefighters: How long before legal action takes the lead on climate action?Credit:QFES Media |
Describing the need to curb greenhouse gas emissions as "an existential battle", Wilder predicts people will be able to sue for the impacts of climate change and have a good chance of winning. "No doubt it's going to happen - it's inevitable," he says. "Governments have a duty of care, they have a responsibility."
Climate summit starts
Evidence of that care will be on display over the next couple of weeks from Sunday as delegates from the almost 200 nations that signed the 2015 Paris climate accord gather for a UN summit in the Polish city of Katowice.
Australia will be led by Environment Minister Melissa Price, who on Friday released the latest emissions figures showing carbon pollution continues to climb, reaching seven-year highs for the end of the financial year.
Australian emissions by quarter, 2008 to 2018 |
| Source: Department of the Environment and Energy |
The year 2018 is likely to be the fourth warmest on record - trailing only the previous trio of years.
Among the key topics of the talks will be settling on the agreed rules for the greenhouse gas cuts promised at Paris ahead of the agreement coming into force in 2020.
"I'm not expecting a train wreck at all but a lot has to be done in little time," Bill Hare, director of tracking group Climate Analytics, tells Fairfax Media from Katowice.
Also of interest will be whether countries that can claim credits for exceeding their pledges during the previous accord, the Kyoto Protocol, can use them to count for the Paris pact that runs to 2030. Australia is one of them.
But besides the bickering over national pledges, businesses, academics and activists will be
busy examining the fast developing field of climate law.
"It'll feature in the backrooms and the siderooms, for sure," Hare says. "We certainly see more and more companies engaging with this issue."
One thousand cases
And no wonder.
A flurry of legal action is under way in a host of nations, particularly the litigious United States. The UK's Grantham Research Institute on Climate Change and the Environment at the London School of Economics estimates as many as 1000 climate court cases have been tried or are under way.
The Paris Agreement itself has spawned 139 framework laws addressing mitigation (cutting emissions) and adaptation - dealing with the consequences of the climate disruptions experienced and expected in a warmer world.
But perhaps wary of nations keeping their promises - the Paris targets were deliberately non-binding legally to ensure almost all nations signed up - leading legal minds have been busy formulating an alternative use of law.
“In some ways, climate litigation is born out of a certain despair with the current political process," says Matthew Rimmer, professor of intellectual property and innovation at Queensland University of Technology, adding there has been a "great explosion of different forms".
Rimmer reels off a list of legal avenues from tort, such as public nuisance and negligence, to public trust and consumer and corporations law. He likens the process of probing to the advance of Native Title Law in Australia, where the Mabo decision "was one of many pieces of litigation going on" when it broke though and "was quite transformative”.
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| Sydney's 'one-in-a-100 year' rain event this week left a damage bill of at least $10 million. Credit: Nick Moir |
Brian Preston, the chief judge of the NSW Land and Environment Court, has helped lead global efforts to develop legal principles that could lower the barriers to successful climate litigation with or without a Paris accord.
He highlights perhaps the most famous climate lawsuit to date - the 2015 Urgenda Climate Case in which 886 Dutch citizens sued their government to roughly double emissions cuts - as revealing the pitfalls and the promise of such cases.
For one thing, governments will keep appealing, as Dutch authorities have done again in November. The fact most environmental law is based in statute now, such as protecting clean air and clean water, also limits the roll-out of similar Urgenda cases in places such as Australia, Preston says.
"That makes it more difficult, like the Lord of the Rings - to get one ring that solves it all - because it’s all going to be statute specific," he says. Australia's lack of bill of rights also curbs Urgenda's applicability here.
Preston has seen firsthand a pushback from US lawyers in the past year, in part inspired by the Trump presidency's backing of the fossil fuel industry, against development of a "model statute" for the International Bar Association.
That statute was designed to “find what the barriers are to successful litigation in various jurisdictions and then lower those barriers, but that hasn’t yet to come to light” because American lawyers blocked it, he says.
”They saw a wave of litigation, and said, 'we don’t want to encourage it',” he says, adding he was "annoyed" at the intervention after working on the model for almost three years.
Cautionary tales
Preston says the examples of tobacco and asbestos - where legal operations were later found to be harmful and subject to damage claims - offer what should be cautionary tales for fossil fuel firms. “They keep looking at what is the liability risk today but that’s not what it should be - it should be the risk in the future."
With asbestos, the court never proceeded with 100 per cent certainty but rather probability. Likewise, the fast-developing science of climate change attribution, which can ascertain the odds of an extreme weather event happening without human-induced carbon emissions.
"Attribution science is making more probable that we will have this event,” such as severe flooding or heatwaves, Preston says. “Therefore, you can get the link from greenhouse gas emissions to harm here by probabilistic reasoning."
Emma Herd, chief executive officer of the Investor Group on Climate Change, says international pressures are already nudging corporate behaviour, as the Task Force on Climate-Related Financial Disclosures.
'Obligations'
Lawsuits at home, such as against industry super fund REST, are also similarly raising the accountability stakes.
REST is facing claims it breached its trustee duties by failing to properly factor climate change-related risks into its investment decisions.
Herd recalls arguing with one director "with an engineer background" who defiantly argued that "the climate had always changed" said he "didn't believe the science".
Despite personal reservations, however, this director "nevertheless recognised the company had obligations" to identify its exposure to fossil fuel and climate risks, and to disclose them, she says.
"There's a clear market demand for increased disclosure," Herd says. "It's happening faster than people anticipated."
Tania Constable, chief executive of the Minerals Council of Australia, said her organisation "expects member companies to comply with all disclosure requirements under Australian law and international law where applicable".
"Our member companies are not only aware of this issue, but are taking action to mitigate risks," she says.
'Chill factor'
Jacqueline Peel, a professor of environmental law at Melbourne University, says "eventually governments will realise the policies they have in place are anachronistic compared to where companies are".
Barriers to Australian climate action include the fact that, unlike in the US, plaintiffs can be up for the government's legal costs as well as their own if they lose. “It’s a real chill factor on litigation,” Peel says.
Kelly O’Shanassy, chief executive of the Australian Conservation Foundation, knows that issue well, with her organisation slapped with overall costs of $230,000 for its 2015 failed challenge and appeal against the Adani coal mine in Queensland. (The mine said this week it would proceed by self-funding after banks baulked.)
“Even big not-for-profit organisations like ACF struggle to mount public interest cases as they often push the boundaries of the financial risk a responsible board can tolerate," O'Shanassy says.
ACT takes advice
Among Australian jurisdictions, Victoria has the most detailed climate change legislation after passing an act last year that locks in a goal of net zero emissions by 2050 and requires five-yearly reviews of progress.
The ACT, meanwhile, wants to examine ways it can lower barriers to climate litigation that could involving the territory undertaking lawsuits of its own for damages and other remedies. (See more detail here.)
"I've asked my department about what options are available," Shane Rattenbury, climate minister in the Labor-Greens government, says.
He's particularly angered by the way fossil fuel companies, such as Exxon in the US, have been revealed to have behaved. "They knew about climate change all along, they buried the science, they fought hard to prevent it being released, and they kept selling their health-damaging products," he says.
Exxon has been involved in a number of legal actions, including a case brought by New York’s attorney-general in October, which claims the company defrauded shareholders by downplaying the risks of climate change to its business, the New York Times has reported.
Melbourne University's Peel, meanwhile, says it's notable that a significant proportion of recent cases has been brought by young people, whether by children in the US or a law student in New Zealand.
In echoes of the mass protests of students this week demanding governments lift their climate game, the actions suggest "they can see pretty clearly that it’s their future" on the line, she says.
“Litigation has the appeal of action and fighting for their rights," Peel says. "These ideas motivate them a lot.”
Links
- The Australian Law Journal Special Issue: Climate Change and the Law
- Global trends in climate change legislation and litigation: 2018 snapshot
- Climate Change Litigation Databases
- First ever EU-wide climate court case asks for more ambition in cutting emissions
- The Urgenda Climate Case Against The Dutch Government
- ACT seeks climate litigation advice as court action gathers momentum
- Task Force on Climate-related Financial Disclosures
- Super fund alleged to have breached duties over climate change risk
- Temperatures on track for 5-degree rise by 2100 after another hot year
- 24th Conference of the Parties to the United Nations Framework Convention on Climate Change
- ACT seeks climate litigation advice as court action gathers momentum
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