03/12/2018

'New Weapon': Courts Offer Hope For Driving Serious Climate Action

Fairfax - Peter Hannam

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.
Chasing firefighters: How long before legal action takes the lead on climate action?Credit:QFES Media
"The truth is there's a huge number of people about to litigate," said Martijn Wilder, a partner at Baker McKenzie and an author featured in a special issue of The Australian Law Journal devoted to climate change and the law. "What we see all of a sudden is that people are realising litigation is a new weapon."
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 meeting also comes days after the World Meteorological Organisation released its state of the global climate report warning the planet was on an emissions trajectory that would lift temperatures as much as five degrees by 2100 versus pre-industrial times.
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”.
Sydney's 'one-in-a-100 year' rain event this week left a damage bill of at least $10 million. Credit: Nick Moir
Going Dutch
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.”

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The Climate Apocalypse Is Now, And It’s Happening To You

Wired - 

David Paul Morris/Bloomberg
What people say they know about climate change is a roller coaster of human ignorance—wait, everyone knows that but no one knows that? It’s striking to learn (according to Yale’s climate survey program) that 74 percent of women and 70 percent of men believe climate change will harm future generations of humans, but just 48 and 42 percent, respectively, think it’s harming them personally.
It is, of course, in lots of ways. Yet fewer than half of Americans think climate change is a right-here, right-now problem. So it’s critical that a new report on the impact of climate change is about the present as much as the future. The topline results: 157 million more people experienced a heat wave in 2016 than in 2000—12.3 million Americans. That heat and the injuries that can come from it cost the world 153 billion hours of labor—1.1 billion in the US. The geographic range of the mosquitoes that carry dengue fever, Zika, malaria, and chikungunya is spreading. So is the range of the bacterium that causes cholera. Global crop yield is going down.
You’re like, old news! But you might be thinking of last week’s apocalyptic climate-is-broken report. That was volume 2 of the fourth National Climate Assessment. Today’s red alert is the 2018 Lancet Countdown, a British medical journal’s annual accounting of how climate change affects public health.
Some confusion here would be understandable. What both reports have in common (along with the Intergovernmental Panel on Climate Change’s October report on a 1.5-degree planetary temperature increase) is immediacy. These reports are designed to show climate change happening now, today—and to actually spur people to do something about it. How? Show them how climate change affects them personally, and describe those effects in ways that transcend their politics. Global warming is causing “present-day changes,” the Lancet report says. On a telephone briefing for reporters, Renee Salas, director of emergency medicine at Massachusetts General Hospital and the lead author of the report’s US chapter, described seeing more patients with asthma attacks and heat stress. “Viewing climate change as a public health emergency is literally second nature,” Salas said.
Still, these reports tackle immediacy with different strategies. The Lancet Countdown focuses on health. For NCA4, the approach was a little more subtle. Its hundreds of authors started by considering their audience. The 1990 Global Change Research Act says these quadrennial reports are specifically for the president and congress. Climate change affects the American southwest very differently than the northeast, so breaking regional effects into chapters makes that data more useful for people in congress, who can see specific effects on their districts. (NCA isn’t the only research that does this; you can drill down as far as county-by-county economic effects, if you’re into it.)
Breaking out climate impacts by region and by sector gives the report a potentially wider impact. “The idea is that risks are most salient if they apply to you,” says Robert Lempert, a principal researcher at RAND and an author of the report. “We very much intended it to speak to, call them decision-makers, on many levels—not just the federal government.” Lempert says they were thinking of water management agencies, land managers: the people who write the guidances.
Over the 20 years of the NCA’s life, science has gotten better. So has the thinking about how to tell people about that science in ways they can understand it. Talking about tens of thousands of deaths and tens of billions of dollars can help with that. “Over the last 20 years of doing this, we’ve gotten better at thinking about the economic costs,” says John Furlow, a development and aid expert at Columbia University’s International Research Institute for Climate and Society and an author of NCA4. “And we have more examples.”
Pretty much everyone (even oil companies, but not the president) now understands that burning fossil fuels sends gases into the atmosphere and increases global temperatures. In recent years, climate science has gotten better at attribution, at figuring out more precisely how much of a hurricane, wildfire, or drought was caused by that warming and those gases. “We can see impacts on things that people care about, and that’s leading us to shorter timescales and more concrete examples,” Furlow says. “The science enables us to attribute some things more or less to climate than just to ongoing trends, and to parse the way those things interact.”
The Lancet report attempts much the same kind of grounding in individual experience. Carbon dioxide counts in parts-per-million and error margins on global circulation models aren’t the most intuitive ways to talk about the end of the world. Abstract numbers and distant-future scenarios don’t cut it. “Today’s babies, by adulthood, will live on a planet without an Arctic. Prevalence of heatstroke and extreme weather will have redefined global labour and production beyond recognition,” as an editorial accompanying the report puts it. “Multiple cities will be uninhabitable and migration patterns will be far beyond those levels already creating pressure worldwide.” Cats and dogs living together; mass hysteria. Your planet’s on fire, kids.
But how all this immediacy and personalization will actually work might depend on how immediate the issue is, and who the person is. “Most of the mitigation decisions are taken at the federal and state level. Or in principle they are; maybe not at the moment at the federal level,” says Robert Kopp, director of the Institute of Earth, Ocean, and Atmospheric Scientists at Rutgers University and another author of the National Climate Assessment. “But the adaptation decisions are taken at all levels, perhaps more at the local level than anywhere else.”
The Lancet report is full of straightforward policy recommendations, like “cut carbon emissions, dummies.” By law, the NCA can’t do that. “We were perhaps a little more conscientious about that this time, because we didn’t want there to be anything in there that would cause the administration to try to kill the report,” Furlow says. “Given the administration’s history on climate—calling it a hoax and everything—I think there was concern we might have trouble getting it out the way it was written.” (That doesn’t seem to have been the case; all the authors I’ve talked to say that the executive branch didn’t interfere with its contents.)
But the NCA can (and does) tailor its analyses to the people who might best put them into effect. Lempert’s chapter on adaptation, for example, leverages the basic assumptions of a civil engineer. “In some sense the structure of the chapter is to try and get them to do things,” he says. Past climate no longer predicts the present or the future—that idea is what scientists call stationarity, and it’s pretty much dead. The planet’s past performance is no longer a predictor of future results. So if engineers have been making infrastructure assumptions (sea wall height, 100-year flood levels, days of the year above a certain temperature), well, they should probably not do that. How they feel about climate change as a political issue doesn’t matter. “Even in the red parts of Florida, people will vote for bond issues to raise the water treatment plants, and let’s not talk about why,” Lempert says.
Engineers won’t be these reports’ only users. Consider lawyers. The NCA is, after all, a government report acknowledging the damage caused by climate change. So it might be evidence in lawsuits against climate emitters. “We used the last assessment for that purpose and this is even stronger,” says Steve Berman, managing partner at Hagens Berman Sobol Shapiro, a firm involved in a few of those lawsuits. “It also takes away a lot of the oil industry argument that this science is still nascent, and that no one is really certain there will be all of these impacts.”
Those lawsuits happened because cities, states, and environmental groups didn’t feel like they were getting results from the executive or legislative branches. So far, the executive seems to be disregarding NCA4. But in January the Democrats take over the House of Representatives, and some of them have been agitating for climate action. “This is a powerful piece of artillery for any legislator who is interested in advocating for action,” says Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School. The report might also make it harder for the Trump Administration to weaken EPA rules on carbon dioxide. The EPA under President Obama determined that carbon dioxide was a harmful pollutant that should be regulated under the Clean Air Act, and the NCA reaffirms that conclusion.
None of those things necessarily change any minds. They might not move the needles on the Yale climate survey. But maybe they don’t have to. As the New Yorker writer Osita Nwanevu argued recently on Twitter, denialism isn’t a commonly held position. The real problem is an absence of climate policy. Ideally, the constructions of the IPCC reports, the National Climate Assessment, and the Lancet Countdown won’t just make a policy more obvious, but help clear a path to a policy going into effect. The clock’s ticking.

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It Should Not Be Up To Australia's Schoolchildren To Stop Adani

Fairfax - Ebony Bennett*

The Coalition government under Scott Morrison appears to have forgotten the first rule of holes: when you’re in one, stop digging. It’s far too early to describe the Morrison government as terminal; the six months or so till a mooted May federal election is a long time in politics. But the government seems content to write off the message from Liberal voters in Wentworth and Victoria, particularly on climate change, because they do not represent its ‘base’. God only knows where the Liberal base is if it isn’t located in blue ribbon Liberal seats, but who are we to argue?
Coalition government policies under John Howard, Tony Abbott, Malcolm Turnbull and now Scott Morrison have failed to reduce Australia’s greenhouse gas emissions. Australia’s emissions are rising when they should be falling. Worse, the Morrison government appears determined to back policies and projects that will increase emissions and fuel global warming.
There were 114 fires burning across Queensland on Friday. Credit: QFES Media



It was sickening to watch the Minister for Resources and Northern Australia Matt Canavan welcome Adani’s announcement that it was ready to start construction of its mega coal mine before Christmas, at the same time as bushfires raged across Queensland during an unprecedented heatwave.
Mining and burning coal is a major cause of the greenhouse gas pollution that is heating the atmosphere, cooking the Great Barrier Reef and intensifying the extreme weather conditions Queensland is currently experiencing.
For the first time in Queensland’s history, the state’s fire danger warning was raised to ‘catastrophic’, the new category of fire danger that had to be invented following the Black Saturday fires of 2009. It is only five years since the Bureau of Meteorology had to add new colours – deep purple and pink – to indicate temperatures beyond its 50-degree cap. Australia’s extreme heat and fire danger is now literally off the charts.
As far as divine signs to stop burning fossil fuels go, more than a hundred bushfires in Queensland’s tropical north rainforest country during the wet season could not be more obvious. Thousands of residents were given ‘Leave Now’ warnings, with authorities bluntly warning residents who refused to flee that they could "burn to death" and that the firestorm could create "dead man zones" which would be impossible to survive, even in a car. Even on the beach.
“I'm sure that some people have probably got very good and elaborate systems of pumps and dams and systems and they believe that I'll be OK and I know what I'm doing and I've done this before," said Fire and Emergency Services Minister Craig Crawford, who experienced Victoria’s Ash Wednesday fires firsthand as a firefighter. "Today is not one of those days. Today is different. We are expecting a firestorm."
"Australia’s extreme heat and fire danger is now literally off the charts."
Queensland residents described 20-metre-high flames fanned by "tornado-like" winds. The heatwave is set to continue. There is no rain forecast. Watching a senior minister tweet photos of bushfire devastation in Queensland while applauding Adani’s coal mine is like watching someone hand out cigarettes to cancer patients.
Is it any wonder thousands and thousands of students turned out in force across Australia on Friday for the School Strike 4 Climate? Australia’s kids are willing to sacrifice their education to stop Adani because they know it is their future at stake, it is their generation who will be forced to clean up the policy mess that ministers like Matt Canavan have left them.
But of course, it should not be up to Australia’s schoolchildren to stop Adani. The Labor party, Australia’s likely future government, should give voters a real choice at the next election and commit to stop Adani’s mine by any means available to it.
Adani’s mine is a dud project for any one of a dozen reasons. No bank would touch it, Adani has had to finance the mine itself. There won’t be many jobs in it, Adani boasts "When we ramp up the mine, everything will be autonomous from mine to port". Traditional owners do not consent to the mine on their land and are challenging Adani before a full federal court bench next year. Adani is still under investigation for potential environmental breaches in Australia and it has an appalling record of environmental destruction and prosecutions overseas, including allegations of corruption, fraud and money laundering.
The federal Environment Department found Adani probably broke the law in its environmental application by giving false evidence. Federal and Queensland governments are yet to sign off on key water plans which water scientists say are grossly inadequate to protect precious water. As Queensland burns and suffers through drought, it seems grossly unfair that Adani has been granted a license to extract 12.5 billion litres of water every year for 60 years, nearly as much as all local farmers combined, without a full environmental impact assessment, as documents obtained by Lock The Gate Alliance under Queensland's Right To Information laws showed. And the Queensland government is still offering Adani a secret royalty subsidy.
Frankly Australia’s next government should not only stop Adani, it should put a moratorium on all new coal mines. Even with a ban on new mines, Australia Institute research shows Australia's coal production would decline only gradually as existing mines reached the end of their economic lives. If Adani’s coal mine goes ahead, with flat world demand for coal, every new coal mine opened in new coal regions like the Galilee simply reduces production in existing coal regions like the Hunter Valley, Bowen Basin and Surat Basin. This will lead to the closure of some mines and layoffs in others. A moratorium on new coal mines would protect existing coal jobs. It is impossible to limit global warming while building new coal mines.
The Morrison government’s determination to use taxpayers’ money to underwrite new coal-fired power is also concerning. Just as you can’t dig yourself out of a hole, you can’t reduce electricity prices by building coal-fired power stations - the most expensive form of new energy to build. Renewable energy and battery storage are cheap and getting cheaper and renewables have been putting downwards pressure on electricity prices for years now.
But Minister for Energy Angus Taylor appears determined to invest in coal - like investing billions of taxpayers’ dollars in Video Ezy while blaming the world for streaming Netflix. Coal-fired fired power stations aren’t even that reliable and our ageing fleet increasingly fails in the heat when we need them most. The Australia Institute’s Gas and Coal Watch has tracked 109 separate breakdowns at coal-fired power stations this year: 67 at black coal plants and 42 at brown coal plants, hardly  'reliable’.
Taxpayers should be concerned the Government is gearing up to sign risky contracts for billions of dollars, possibly without the authority to do so. It is policy on the run from a government in panic mode, only it is Australian taxpayers, not the Liberal and National parties, who will be left on the hook for any liability arising from the Minister’s rushed process.
The Liberal party is perfectly entitled to keep its ‘homophobic, anti-women, climate-change deniers’ branding - as Kelly O’Dwyer so succinctly put it - if it thinks it’s onto a winner. The only danger now is that the Coalition will mire Australia in its climate policy bog as it doubles down on coal and digs itself further away from the political mainstream.

*Ebony Bennett is deputy director at The Australia Institute

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