28/07/2021

(AU ABC) Human Rights Issue Or 'Green Lawfare'? Citizens Take To The Courts To Fight Climate Change

ABC Radio National - Antony Funnell, Future Tense

More than 17,000 co-plaintiffs successfully brought a case against oil producer Shell in the Netherlands. (Getty: Peter Boer/Bloomberg)
They don't fit the activist stereotype — some are farmers, some are from the suburbs, some are retired, and some are still going to school.

Melbourne University's Jacqueline Peel calls them "next generation" litigants, ordinary citizens tired of political promises and eager to hold governments and companies to account.

Many see climate change as a human rights issue and they're being assisted in their legal ambitions by a coterie of academics, lawyers and even judges.

But there are also critics, who warn of "green lawfare" judicial activism and a threat to the democratic ideal of the separation of powers: that governments, not the courts, should determine national policy.

Climate change impacts everyone Environmental law expert, Jacqueline McGlade, says the judicial landscape around climate change is changing rapidly.

"In the last two or three years we've doubled the number of cases that have been brought forward."

And those cases are being heard in court rooms across the globe from the United States to Pakistan to Australia, focused not just on current environmental threats, but on the risks to future generations, she says.

"Everybody knows that climate is going to impact everyone .... [it will] impact our fundamental human rights to life, to water, to food and so on, and that's how it is connected."

As an example, Professor McGlade nominates a case brought before Brazil's highest court in September 2020.

Amazon deforestation rises
to 12-year record

"The government was failing to properly administer the Amazon Fund, the mechanism that was set up to combat deforestation.

"The Supreme Court accepted that lawsuit last year and directed the government to actually provide information on why it wasn't managing the fund properly."

Then in March, the Federal Court of Australia ordered that Environment Minister, Sussan Ley, had a duty of care to protect young people from "emissions of carbon dioxide into Earth's environment".

The case was brought against the minister by eight students and a nun and involved plans to expand a Northern NSW coal mine.

The group who bought a case against the Environment Minister say they were motivated by their passion for climate justice. (ABC News: Brendan Esposito)
A multinational in the dock The most internationally significant judicial decision of recent times occurred in a District Court in the Netherlands in May. It involved the giant multinational gas and oil producer Shell on the one side, and more than 17,000 co-plaintiffs on the other.

"It was about Shell's accountability for the emissions it releases into the atmosphere and making sure that it was making appropriate reductions in those emissions over time," says Professor Peel, who believes the decision could set a global precedent.

"We've seen these kinds of actions against governments to hold them accountable for their emissions reduction targets [but] this was the first case in the world where you are seeing this kind of action being brought against a company."

The case has pricked the attention of industry across the world, she says.

"It's often said in relation to litigation that you probably only need one successful case to change the atmosphere in a boardroom.

"It puts companies on notice that they could be sued on similar grounds and could be held liable for the damages associated with the climate harms caused by their emissions."

A 'redistribution of power' Australian lawyer David Morris, from the non-profit legal service the Environmental Defenders Office, is also seeing the rapid growth in climate change-related lawsuits, but he says many litigants struggle to understand and navigate judicial processes.

He works directly with individuals and communities to help them frame and prosecute their cases. He describes it as a "redistribution of power".

 "It really goes to the integrity of our system, the idea that a small community group can stand up against the might of a major mining company or a government department and then win in court.

"It really ensures the integrity of our processes too. It ensures that when ministers are making important decisions which might have consequences over many decades, indeed well into the future, that they follow proper process."

Mr Morris says connection with country is increasingly being used as a litigation tool.

"Local community groups are often motivated by a deep love of place and a desire not to see that place destroyed.

"We see it increasingly in the work we do with traditional owners, with Aboriginal and Torres Strait Islander people in Australia, the deep connections that those people have to country and the impacts that they see from particular projects but also that they see from the growing impacts of climate change."

Push back Yet official antipathy toward climate-related litigation is also on the rise.

Ms Ley has appealed the recent Federal Court ruling made against her, arguing that she doesn't have a duty of care to protect Australian children from climate harm.

Suing for change on climate
She and others in the Morrison government have repeatedly accused environmental organisations of waging "lawfare" against fossil fuel companies.

"We've often seen quite adverse reactions from politicians to a lot of the climate litigation," says Professor Peel, "partly because it does reflect badly on the progress that politicians are making or not making in dealing with the challenge."

She says some in the judiciary are also cautious about hearing climate-related cases.

"There is a long-running debate in the legal sphere about what the role of judges should be, whether they should have a strong role in developing the law and taking it forward to address new circumstances and challenges. Or whether those functions should be best left with policymakers and parliaments."

But she says the framing of many "next generation" cases can be persuasive.

"You're seeing judges more willing often to go into that space because they think of it as an issue of justice where the law has a particular role to play.

David Estrin from the International Bar Association rejects any notion of "judicial activism".

While governments have a primary role in determining a nation's environmental laws, he argues, courts play an essential role in holding them to account when their actions fail to remain within the limits of the law.

"This mandate to the courts to offer legal protection, even against the government, is an essential component of a democratic state under the rule of law," he says, quoting a 2019 ruling by the Netherlands Supreme Court.

Professor Peel argues a further increase in litigation is inevitable as long as there remains a perception that governments and companies aren't moving fast enough on climate change or aren't adhering to their own commitments.

And David Morris predicts the next decade will see a significant shift in thinking.

"You will start to see an evolution of the jurisprudence in these spaces, so an evolution of the judges' thinking," he says, "or of the court's findings in respect of some of these cases, which to date have been novel." 

"And what you'll see is a growing body of knowledge, a growing body of reasoning that starts to place very real pressure on companies and governments who fail to act swiftly."

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