17/06/2021

(AU The Guardian) Australian Resources Minister Attacks ‘Green Activists’ For Trying To ‘Cripple’ Fossil Fuel Companies

The Guardian - 

Keith Pitt urges oil and gas producers to fight back against groups such as Greenpeace by quantifying the sector’s contribution to the economy

Minister Keith Pitt will use a speech to the Australian Petroleum Production and Exploration Association conference to rail against environmental groups. Photograph: Aaron Bunch/AAP
Australia’s resources minister, Keith Pitt, is urging oil and gas producers to turn the “spotlight” on environmental groups campaigning against an expansion of the fossil fuel industry on climate change grounds.

Pitt will use a speech to the Australian Petroleum Production and Exploration Association conference in Perth on Wednesday to rail against “activism” that “ignores the fact that resources development in Australia is carried out safely and responsibly and that Australia’s economy was built off the back of the resources sector”.

According to speech notes circulated by his office in advance, the resources minister will declare it is “clear that the courts and bureaucratic processes are being used by green activists to delay major projects and potentially cripple companies”.

He will single out Greenpeace for special mention. Citing figures from the charities commission, Pitt will say Greenpeace “raised more than $18.5m in donations and bequests and $1.1m in government grants in 2019-20 in Australia alone”.

“Nearly 25% of expenses related to fundraising and 39% were in staff costs – so rather than protecting the environment they are mostly focussed on protecting themselves,” Pitt will say.

Greenpeace Australia Pacific chief executive David Ritter hit back. “The very reason that millions of Australians support the work of Greenpeace is to take the action on climate change that minister Pitt’s government has not only resoundingly failed to do, but actively blocked for the past seven years.

“Greenpeace is a movement of people. If these climate-wrecking oil and gas giants at this conference want to rise to minister Pitt’s challenge and attack the people of Australia for caring about nature and the future of our kids, we are ready. Because for as long as big climate polluters threaten the future, we will stand in their way.”

The resources minister will argue demand for LNG is growing in the face of global pushback from environmental and shareholder groups and Australia intends to remain at the “forefront of the LNG sector” for decades.

Australia urged to drop coal and gas plans after global energy agency’s warning. Read more
He will tell the conference the government plans to develop the North Bowen and Galilee basins in central Queensland for gas extraction. “We know that the Bowen Basin is a major coal-producing area but it also has immense potential for gas”.

Pitt will urge oil and gas producers to fight back against “green activists” by putting “facts” before the Australian public, including quantifying the sector’s economic contribution to the country “and indeed facts about the activist’s campaigns – the spotlight should be on those organisations for a change”.

The resources minister will also flag concern about banks and insurers stepping back from financing fossil fuel projects. Pitt triggered a parliamentary inquiry, chaired by fellow Queensland National George Christensen, after a public commitment from ANZ to step back from business customers with material thermal coal exposures – market signalling that sparked consternation within the Nationals.

After the ANZ’s statement last October, the agriculture minister, David Littleproud, called for a boycott of the bank, and the deputy prime minister, Michael McCormack, declared the bank’s plan “virtue signalling”. Christensen has previously denied the link between climate change and the severity of natural disasters.

In the wake of the ANZ fracas, Pitt originally instructed the joint standing committee on trade and investment growth to grill financial regulators, the Australian Securities and Investments Commission and the Australian Prudential Regulation Authority, as well as the banks, about their plans to pull back on lending or insuring mining projects because of climate change.

But the inquiry stalled after the joint standing committee – in a rare rebuke – deferred making a decision about whether to proceed with Pitt’s original ministerial referral. The stalling reflected a view among some Liberals that the inquiry should not be a witch-hunt against banks managing carbon risk.

Pitt subsequently broadened the terms of reference, asking the committee to investigate finance for all export industries. He said the adjustment was a strengthening of the original terms of reference.

The banks and their lobbying arm, the Australian Banking Association, have used new submissions to Pitt’s parliamentary inquiry to implicitly rebut claims from senior Nationals that their actions amount to moral posturing or virtue signalling.

The major banks and the ABA have pointed out that current carbon risk practices – namely, disclosing information relating to climate exposures and calculating the potential risk of climate change on their balance sheets – are requirements driven by international governance setting bodies, of which Australian regulators and Australian companies are members.

Scott Morrison’s claim Australia’s greenhouse gas emissions are falling does ‘not stack up’.  Read more
Pitt will tell the APPEA conference on Wednesday the inquiry led by Christensen will “inquire into and report on the approach and motivations of our financial institutions regarding their investment in Australia’s export industries”.

APPEA has used its submission to the inquiry to argue that environmental groups have “over recent years focused their activism on shareholders and finance sources, like superannuation funds, banks, and other lending facilities” – and have been able to exploit an “information asymmetry”.

The submission says since 2017, shareholder activist groups collectively have submitted 92 resolutions “pertaining to climate change, governance (to facilitate greater shareholder climate change activism) or political lobbying (as it pertains to climate change)” – with nearly 40 resolutions relating to APPEA member activities.

APPEA contends this activity “conveniently ignore[s] the body of evidence that demonstrates the role that natural gas is playing in delivering lower carbon energy security to growing population centres, particularly in our own region” and commitments by the gas industry to the United Nations sustainable development agenda.

APPEA is the peak national body representing upstream oil and gas explorers and producers active in Australia. Member companies account for more than 90% of Australia’s petroleum production.

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(Bloomberg) ‘Petrolhead’ Who Beat Shell Shows How Law Can Fight Climate Change

Bloomberg Green -  | 

Attorney Roger Cox says oil industry executives should be held responsible for their companies’ carbon emissions
Roger Cox Photographer: Peter Boer/Bloomberg

Royal Dutch Shell Plc hired a team of pricey lawyers for its defense against environmental activists in a Dutch court, and lost.

A decade-old, $22 book might have upped their chances of winning. “Revolution Justified: Why Only the Law Can Save Us Now,” is no bestseller, ranking in the mid-600,000s in Amazon’s Kindle store. But the book, by environmental lawyer Roger Cox, laid out arguments that were integral to his landmark victory over the Anglo-Dutch oil giant on May 26.

The book suggests two building blocks for a case such as the lawsuit against Shell. One is that there’s incontrovertible evidence that warming beyond 1.5 degrees Celsius will have dire consequences for the planet, and any company that ignores that is doing so consciously. The second is that companies have a clear duty to ensure a healthy environment for the world’s citizens.

The urgency is compounded, Cox says, because even if we stop emitting CO2 today, the planet will suffer increasingly grave consequences for decades to come.

“The damage states and multinationals have done is far greater than we can see now,” says Cox, who says he sought to make the book straightforward enough to hold the interest of the general public but persuasive enough to stand up in a courtroom. “Understanding this is judicially of great importance and makes intervention by the courts necessary.”

After four days of arguments, a court in The Hague accepted Cox’s line of reasoning, ruling that Shell must slash its greenhouse gas emissions 45% by 2030 compared to 2019 levels—a sharp increase over the 20% the company had previously pledged.

“Even if states do nothing or only a little,” Judge Larisa Alwin said in announcing the verdict, “companies have the responsibility to respect human rights.”

Shell says it will appeal the verdict as it feels it was unjustly singled out. But Chief Executive Officer Ben van Beurden on June 9 said the company will take “bold but measured” steps to accelerate its energy transition.

Cox, left, and members of Dutch environment group 'Milieudefensie', celebrate after the ruling in the Shell case. Photographer: Remko De Waal/ANP/Getty Images

What Cox has engineered “seems to have been a complete victory for the plaintiffs, and the court’s specificity and ambition in ordering Shell to reduce its downstream emissions are remarkable,” says Michael Burger, executive director of Columbia Law School’s Sabin Center for Climate Change Law, who advises on lawsuits against oil companies.

Burger says he expects attorneys filing similar lawsuits in the U.S. to cite the case as precedent. Cox, 53, based his strategy on a 2015 case he brought against the Dutch government for Urgenda, an environmental non-profit. In its verdict, the court ordered the state to cut CO2 emissions 25% from 1990 levels by 2020, but the Netherlands didn’t meet the goal—and Urgenda has threatened another lawsuit.

“Without the Urgenda case, we would never have been able to win against Shell,” says Cox. “If you cannot hold a state responsible for climate change, it wouldn’t have been possible for a company.”

Laura Burgers, an assistant professor at the University of Amsterdam who studies climate change litigation, says the cases highlight the difficulty politicians have in tackling the issue. The judicial system in various countries will instead need to step in to ensure the problem gets the attention it needs. “These court cases are a sign of governmental failure,” Burgers says.

For Cox, who studied law at Leiden University and later worked at big law firm in nearby Rotterdam, the legal victories mark the culmination of his personal journey from apathy to activism about climate change. “I was a real petrol-head,” says Cox, who two decades ago moved from Rotterdam to a village in the southern Netherlands in search of a calmer place to raise his family. “I was one of those people saying that 1 cm sea level more or less wouldn’t matter.”

His epiphany was triggered by Al Gore’s film “An Inconvenient Truth.” Spurred into action by the documentary highlighting the perils of global warming, Cox arranged free viewings across the Netherlands and set up a non-profit focused on the issue. After studying legal precedents on the matter, he realized that as a lawyer he could best effect change via the courts. “If I can change, anybody can,” he says.

Following his win over the Dutch government, a local activist group called Milieudefensie asked Cox to pursue a similar strategy against Shell. He took the case, partly funded by the group, and soon found a 2014 letter by the company’s investor relations chief promising that Shell would not end up with so-called “stranded assets”—facilities and reserves that can’t be exploited as consumption drops or the legal barriers to tapping them become insurmountable.

Reading between the lines, says Cox, Shell was indicating it would decide the pace of its transition to renewables despite international agreements on targets for reducing emissions. That standpoint, he says, put the company in violation of its duty to defend the rights of fellow citizens, an important legal principle in many countries.

Greenpeace hold an environmental protest during the Shell shareholders meeting in The Hague, on May 19, 2020. Photographer: Romy Arroyo Fernandez/NurPhoto via Getty Images

Two years later, shortly after the Paris Climate agreement, van Beurden questioned whether it would be possible to limit to 1.5 or even 2 degrees of global warming.

Speaking on the Dutch news show Nieuwsuur, he stressed that his company would “pump as much as possible to meet demand.” Cox says the next battle front in climate change litigation will likely get personal. At Shell’s annual meeting in May, a proposal from a shareholder group that the company pursue a more aggressive transition away from fossil fuels won the backing of 30% of shareholders, though a plan from management drew 89% support.

The Shell proposal envisions a big expansion in clean energy but also decades more oil and gas production. For Cox, the time to act is now, and if Shell’s bosses and other oil executives don’t do so, he says they should be held personally liable for their failure to address climate change.

“CEOs must take the responsibility to explain to their shareholders why the transition must be accelerated,” Cox says. “The net is closing in.

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(AU Legal) Minister Found To Owe Duty Of Care To Consider Climate Change In Decision Making

Clyde & Co Global Law Firm - Dean Carrigan | Jacques Jacobs | Jacinta Studdert

Background

On or around 11 February 2016, Whitehaven Coal Pty Ltd applied to the Commonwealth Minister for the Environment (Minister) to expand their Vickery Coal Project which would increase the total coal extraction from 135 to 138 million tonnes. When combusted, the additional coal extracted was estimated to produce about 100Mt of C02.

The Minister is required to assess Whitehaven’s application in accordance with s130(1) and s133 of the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act). The Applicants sought an injunction to restrain the Minister from exercising her powers under the EPBC Act. They alleged that the Minister’s powers create a statutory duty of care and that the injunction is necessary to restrain an apprehended breach of that duty. 

The Applicants alleged that towards the end of this century, they will likely suffer mental or physical injury, including ill-health or death as well as economic and property loss as a result of their exposure to climatic hazards induced by increasing global surface temperatures driven by the further emission of C02.  The Applicants alleged that additional emissions from the Vickery Coal Project will be significant and material to the increase. For the most part, the parties agreed that additional emissions will have an impact on the surface temperature, but, disputed the significance of the temperature increase.

Interestingly, the Applicants in the proceedings were eight Australian children who brought the proceedings as a class action on behalf of all children who ordinarily reside in Australia (Children). As a consequence of their youth, the proceedings were brought by their litigation representative Sister Marie Brigid Arthur. Importantly the Applicants did not seek damages.

Duty of Care

In considering whether this novel duty of care exists, the Court took a multi-factorial assessment, in which ‘salient features’ relevant to the appropriateness of imputing a legal duty upon the Minister were assessed and weighed. This approach is a uniquely Australian concept for the assessing of a novel duty of care.

The Court noted that where the Respondent is a repository of statutory power, imposing a duty of care can raise problems that require a close examination of the terms, scope and purpose of the relevant statutory regime. Moreover, whilst the ultimate question is whether a requisite relationship exists between the statutory authority and a class of persons, the criteria for assessing whether that relationship exists is to be found in the salient features of that relationship.

Among the seventeen salient features already established under common law, the Court noted that the following were relevant for this particular case:
  • the purpose to be served by the exercise of the power;
  • the control over the relevant risk by the repository of the power;
  • the vulnerability of the persons put at risk; and
  • coherence.
The Applicants emphasised the degree and nature of control able to be exercised by the Minister to avoid harm (control), the vulnerability of the Children (vulnerability), the reasonable foreseeability and nature of the harm (reasonable foreseeability) as well as a recognised category of relationship between the Minister and the Children (recognised relationship). The Minister contended that the posited duty was extraordinary, submitting that there was no precedent for a duty analogous to the duty contended for by the Applicants. Further, the Minister contended that ‘reasonable foreseeability’, ‘control’, the salient features of ‘proximity’, ‘reliance and responsibility’ as well as ‘indeterminacy’ all supported the rejection of the duty for which the Applicants contend.

The Court determined that the potential harm faced in the event of a 3°C rise in global temperatures would be catastrophic, with one million of today’s Australian children expected to suffer at least one heat-stress episode serious enough to require acute care in a hospital, thousands likely to suffer premature death from heat-stress or bushfire smoke and substantial economic loss and property damage will be experienced.

 The various types of harm contended for by the Applicants depended upon there being a nexus between an increase in global average surface temperature and the increased frequency or gravity of extreme climatic events such as heatwaves or bushfires. The Court noted that while the prospective contribution to the risk of exposure to harm made by the approval of the extraction of coal may be characterised as “tiny,”  the Minister’s prospective contribution is not so insignificant as to deny a real risk of harm to the Children.

The Court held that the Minister has direct control over the foreseeable risk because it is her exercise of power upon which the creation of that risk depends. Therefore, there is a direct relation between the exercise of the Minister’s power and the risk of harm to the Children resulting from the exercise of that power.

The Court ultimately held that the risk of harm to the Children was not remote, was reasonably foreseeable, and was therefore a real risk. In doing so, the Court rejected the Minister’s approach to ‘reasonable foreseeability’, which was described as amounting “to a contention that the mere possibility of a break in the causal chain will suffice to deny the reasonable foreseeability of harm,” [194] and established a duty to take reasonable care not to cause personal injury.

Injunction

In considering whether to grant an injunction, the Court accepted that it has the power to issue one against an officer of the Commonwealth. However, the Court did not grant the injunction because it was not satisfied that the restraint would not create incoherence, as it ‘may deny rather than induce the reasonable response which the duty of care requires.’ [502] Moreover, the Court noted that, with reference to the fact that harm was not imminent, it was ‘undesirable to pre-empt the Minister’s decision,’ [508] – namely that it would be far more appropriate to assess whether a breach of the duty should be restricted once the Minister has made a decision on whether she will approve the coal mine extension.

Conclusion

At this stage it’s difficult to determine the “winner” in this case. Given the creation of a novel duty of care, it is very likely that the Minister will appeal the decision. In its press release to the ASX, Whitehaven Coal stated that it welcomed the decision and looks forward to receiving EBPC Approval. On the other hand Ava Princi, one of the Applicants, stated that the judgement was “both thrilling and deeply relieving”. 

Although he refused to grant an injunction, the judge requested that the parties consider the effect of the decision before he would confirm his declaration. One of the issues for the parties to consider is the future affect of the declaration. As the matter was run as a class action on behalf of children who reside in Australia or elsewhere, the declaration may have consequences for the whole class and any future litigation by any Australian child.  

This decision is another example of the Court considering climate change in the context of applications for approval for development.  However, the decision has broader implications than this.

The decision confirms that Australia is becoming an important venue for novel climate change litigation. Other recent examples include:
  • In 2019, a beneficiary of the industry super fund, REST, filed a lawsuit against the fund, arguing that its failure to provide adequate information relating to its exposure to climate-related risks prevented him from making an informed judgment about the management and financial condition of the fund. On 2 November 2020 the proceedings settled, just before trial. The terms of settlement are confidential, but REST released a press statement agreeing to comply with Task Force on Climate-related Financial Disclosures (TCFD) recommendations on disclosure and risk assessment, including conducting "stress tests" on its investment portfolio. (settlement statement from REST)
  • Equity Generation Lawyers, the same lawyers acting in this case have launched another class action against the Australian Commonwealth Government concerning its issue of sovereign bonds[1].  The case is still going through the early interlocutory stages and a decision is not likely until 2022. 
  • The claim does not seek damages but instead seeks declarations that the Commonwealth has failed to disclose the material risk that climate change presents to the bonds' value over time. An injunction preventing the promoting or issuing of bonds without providing material information related to climate change has been sought. If successful, the case may also expose financial institutions and corporates to securities class actions risk from failures to make adequate climate change disclosures in issuing documents and prospectus.
  • In Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 the Land and Environment Court refused a development consent under the Environmental Planning and Assessment Act 1979 (NSW) for a new mine, in part because of its negative effect on climate change resulting from the project’s greenhouse gas emissions.
Chief Justice Preston, at [525], recognised that “[t]here is a causal link between the Project’s cumulative GHG emissions and climate change and its consequences. The Project’s cumulative GHG emissions will contribute to the global total of GHG concentrations in the atmosphere. The global total of GHG concentrations will affect the climate system and cause climate change impacts. The Project’s cumulative GHG emissions are therefore likely to contribute to the future changes to the climate system and the impacts of climate change. In this way, the Project is likely to have indirect impacts on the environment, including the climate system, the oceanic and terrestrial environment, and people.” The decision marks the first time that a coal mine has been rejected in Australia because of its future contribution to climate change.

At this stage, climate change litigation is mainly focused on the actions of the government, however it is expected that it will affect a wider proportion of Australian corporates, their directors and their insurers in the not too distant future.  This is also in the context of ever-increasing requirements of and supervision by APRA and ASIC in relation to climate risk disclosure requirements.

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