Using the Courts to Battle Climate Change Issues

As the number of cases grows, so does jurisprudence in the area. This not only helps guide business and government as to what is and is not acceptable practice when it comes to climate change, but can also influence wider government policy and legislation.

Over time, the nature of climate litigation has evolved. While in the past its primary purpose has been to resolve party-party disputes (for example, Company X sues Company Y for environmental damage caused by an oil spill resulting from Company Y’s negligence) it is now increasingly being used by public interest litigants to promote change.

Perhaps the most recognised Australian case in this regard is that of Sharma,[5] where eight young people attempted to block the approval of an extension of the Vickery coal mine.

The applicants argued that the Minister for the Environment owed a duty of care to Australian children to protect them from injury resulting from climate change. They sought an injunction on the basis that should the Minister decide to approve an extension of the mine, that it would amount to a breach of that duty.

In the end, the applicants’ claim for an injunction was dismissed. Though the primary judge found that a duty of care existed and should be imposed, this was overturned on appeal.[6]

Despite ultimately being unsuccessful, Sharma demonstrates the public’s willingness to use the courts to shine a light on issues relating to climate change. It also shows how litigation can stimulate social and political debate and highlight areas in need of law reform.

Litigation has proven to be successful in influencing decision making and affecting government action when it comes to climate change. In Bushfire Survivors for Climate Action v Environment Protection Authority[7] the NSW Land and Environment Court found that the Environmental Protection Authority (EPA) had failed in its statutory duty to ‘develop environmental quality objectives, guidelines and policies to ensure environment protection’[8] from climate change. The EPA was ordered to remedy the breach by developing such guidelines and policies.

The decision in Bushfire Survivors marked the first time that an Australian court ordered a government agency to take action against climate change. Following the decision, climate associated risks are now required to be taken into account in almost all government planning decisions.

One of the major successes of climate litigation is that governments are now being held responsible for their greenhouse gas emissions. The impacts of this are multifaceted. Accountability promotes better decision making and acts as a deterrent for governments not to implement inadequate climate policies and procedures.

Climate litigation also provides remedies to those harmed as a result of poor government decision making and policy implementation.

In 2019, a group of Indigenous inhabitants of the Torres Strait Islands submitted a petition against the Australian government to the United Nations Human Rights Committee, claiming that Australia had violated their human rights by failing to adequately respond to the climate crisis.[9]

In 2022, the Committee found that Australia had indeed violated the petitioners’ human rights, specifically their right to be free from arbitrary or unlawful interference with privacy, family, and home life and their right to cultural enjoyment.

As a result, the Committee determined that Australia should make ‘full reparation’ by:

(1) providing the islanders with adequate compensation for the harm suffered;

(2) beginning consultations with the islanders in order to conduct needs assessments;

(3) continuing implementing adaptation measures against climate change; and

(4) preventing similar violations in the future.[10]

The landmark decision was the first time a country has been held to have violated human rights law as a result of poor climate policy.

Climate change litigation both offers opportunity and poses risk to private enterprises. As the body of case law grows, so does clarity around what is and is not acceptable climate practice.

Businesses can now be guided by the common law to develop improved systems, stronger regulations and increased resilience. This, in turn, can reduce emissions, lower costs and improve reputation.

Of course, managing the risk of climate change and its related litigation is no easy feat. Where businesses may have had a moral obligation to uphold good climate practices in the past, they are now being held legally accountable for their actions and can be ordered to make changes if they are not mitigating climate impacts.

In a landmark decision in the Netherlands, the District Court of The Hague ordered Shell to reduce its overall CO2 emissions by at least 45 per cent from 2019 levels by 2030.[11] The Court took this one step further, going on to say that Shell ‘may be expected to take the necessary steps to remove or prevent the serious risks ensuing from the CO2 emissions generated by them, and to use its influence to limit any lasting consequences as much as possible’.[12]

The Shell decision demonstrates the courts’ willingness to step in and compel companies to amend inadequate climate practices and policies. Businesses should therefore proactively review existing climate policies to assess where their legal risk might lie and make improvements accordingly.

As the impacts of climate change become more understood and accepted, the volume of cases being tried in the courts will continue to increase. Already, we have seen significant remedies being awarded to applicants, which have included orders that companies reduce emissions[13] and that regulators develop guidelines and policies to protect the environment from climate change.[14]

Most notably, we have seen the first country be obligated to pay compensation for failing to take appropriate measures to protect another nation against adverse climate change impacts.[15]

However, the implementation of those remedies remains a challenge. As the number of plaintiff’s seeking redress through the courts continues to grow, we will likely see a surge in claims alleging non-compliance with court orders.[16]

The United Nations also predicts that legal actions relating to adaptation and cases ‘addressing the needs of those displaced by climate change impacts will be a growing litigation trend’.[17]  Similarly, claims brought by vulnerable groups will likely increase over time.

Moving forward, it will be interesting to see how this area of law develops and what impacts it has on the private and public sectors, as well as how it influences broader climate mitigation and adaptation strategies.

Though we can only speculate as to how the future of climate change litigation will unfold, one thing is clear – this is just a taste of things to come.