Shaping The Next Generation Of Climate Change Litigation in Australia Assignment 2022

793
SHAPING THE ‘NEXT GENERATION’ OF CLIMATE
CHANGE LITIGATION IN AUSTRALIA
J AC Q U E L I N E P E E L , * H A R I O S O F S K Y † A N D
A N I TA F O E R S T E R ‡
Recent international developments — including the conclusion and entry into force of the
Paris Agreement and the high-profile Urgenda case, in which the Dutch government was
sued over its inadequate targets for reducing emissions of greenhouse gases — have
sparked interest in the possibilities for exploring new avenues of strategic climate change
litigation in Australia. Australia already has a substantial body of decided climate change
cases. To date, most have involved administrative challenges to projects under environ-
mental laws in order to have climate change impacts taken into account. While this ‘first
generation’ of cases has achieved significant results, there is increasing interest in the
environmental advocacy and legal communities in taking forward a ‘next generation’ of
cases that have a broader focus on holding governments and corporations directly
accountable for the climate change implications of their actions. This article is the first to
explore the contours of such next-generation climate change litigation in Australia,
including the drivers for these lawsuits, the potential legal avenues by which they might be
brought, and likely enablers and barriers. Rather than abandoning first-generation
challenges — which have targeted Australia’s principal sources of greenhouse gas
emissions such as coal-fired power stations and coal mines — we argue that the most
fruitful strategy for future climate change litigation in Australia is likely to be one that
continues to advance lower risk cases building from the base of existing litigation, while
simultaneously attempting novel approaches. If sufficient resources existed, such an
approach would have the benefit of allowing for more likely wins, paired with high-profile
innovation that might capture the public imagination and maximise the potential for
significant policy and regulatory impact.
* BSc, LLB (Hons) (UQ), LLM (NYU), PhD (Melb); Professor of Law, Melbourne Law School,
The University of Melbourne.
† BA, JD (Yale), PhD (University of Oregon); Dean, Penn State Law and School of Internation-
al Affairs; Distinguished Professor of Law, Professor of International Affairs, Professor of
Geography, The Pennsylvania State University.
‡ LLB (Hons), PhD (Melb); Senior Research Fellow, Melbourne Law School, The University
of Melbourne.

794 Melbourne University Law Review [Vol 41:793
C O N T E N T S
I Introduction .............................................................................................................. 794
II Why a ‘Next Generation’ of Climate Change Litigation? ................................... 800
A Defining ‘Next-Generation’ Climate Change Litigation ....................... 801
B Drivers for Next-Generation Lawsuits ..................................................... 805
1 International Legal Developments ............................................... 805
2 Improvements in Climate Change Science ................................. 811
3 Changing Business Culture around Climate Change Risk ....... 813
III Taking Forward Next-Generation Climate Change Litigation .......................... 815
A Avenues for Next-Generation Climate Change Litigation .................... 816
1 An Australian Urgenda? ................................................................ 818
2 Suing Companies and Their Directors? ...................................... 825
B Relationship between First- and Next-Generation Litigation .............. 828
IV Enablers and Challenges for Next-Generation Climate Change Litigation..... 831
A Procedural Barriers ..................................................................................... 831
B Evidentiary Aspects .................................................................................... 834
C Partnering and Facilitation ........................................................................ 836
1 Partnering in the Area of Energy Policy and
Competition Law ............................................................................ 837
2 Partnering with Shareholders and Investors............................... 840
V Conclusion: Shaping the Next Generation of Australian Climate Litigation .. 843
I I N T R O D U C T I O N
This is an opportunity to be bold spirits rather than timorous souls and provide
a lead for the common law world.1
Strategic climate change litigation generally involves the use of the law and
court action to advance beneficial outcomes for addressing climate change.2
1 Justice Paul L Stein, ‘Are Decision-Makers Too Cautious with the Precautionary Principle?’
(2000) 17 Environmental and Planning Law Journal 3, 3. Justice Stein in this article was dis-
cussing judicial innovation to develop understanding and application of the precautionary
principle as a central principle of environmental law. Other members of the judiciary have
argued that a similarly progressive approach is necessary in cases dealing with climate
change. For instance, in the recent US decision of Juliana v United States of America, 217 F
Supp 3d 1224, 1263 (D Or, 2016), discussed below, Aiken J of the US District Court of Ore-
gon urged that ‘[e]ven when a case implicates hotly contested political issues, the judiciary
must not shrink from its role as a coequal branch of government’.

2017] Shaping Climate Change Litigation in Australia 795
Climate change litigation in Australia has a long and proud history. The first
climate change case of Greenpeace Australia Ltd v Redbank Power Pty Ltd
(‘Redbank Power’) was decided in 1994 by Pearlman CJ of the Land and
Environment Court of New South Wales (‘NSWLEC’).3 That case involved a
challenge by Greenpeace, supported by the Environmental Defenders Office
NSW (‘EDO NSW’),4 to a government decision approving a new coal-fired
power station on grounds including the potential for the power station to emit
greenhouse gases (‘GHG’) and contribute to climate change. Redbank Power
has served as a model for much of the ensuing climate change litigation in
Australia over the subsequent 20 years. Like the Redbank Power case, this ‘first
generation’ of Australian climate change litigation has largely concerned
administrative challenges to government decision-making under planning
and environmental legislation, seeking to incorporate climate change within
the scope of decision-making on a project, generally as an aspect of ensuring
the application of concepts or principles of ecologically sustainable develop-
ment (‘ESD’).5 One stream of this litigation has targeted GHG emissions
reduction (mitigation) by challenging coal-fired power and coal mines. 6 A
second ‘adaptation’ stream has focused on climate change impacts for
2 For a discussion of strategic litigation, see Catherine Corey Barber, ‘Tackling the Evaluation
Challenge in Human Rights: Assessing the Impact of Strategic Litigation Organisations’
(2012) 16 International Journal of Human Rights 411.
3 (1994) 86 LGERA 143.
4 Environmental Defenders Offices (‘EDOs’) are an Australia-wide network of environmental
legal organisations providing advice and advocacy on public interest environmental issues
and litigation: EDOs of Australia, EDOs of Australia: Protecting the Environment through
Law (Brochure) <https://d3n8a8pro7vhmx.cloudfront.net/edonsw/pages/1399/attachments/
original/1446680490/151104_EDO_Network_CV_Brochure_-_final_(2).pdf?1446680490>,
archived at <https://perma.cc/5LZM-VQAX>.
5 ESD is a central concept of Australian environmental law calling for ‘development which
aims to meet the needs of Australians today, while conserving our ecosystems for the benefit
of future generations’: Ecologically Sustainable Development Steering Committee, ‘National
Strategy for Ecologically Sustainable Development: Part 1 — Introduction’, Department of
Environment and Energy (Web Page, December 1992) <www.environment.gov.au/about-
us/esd/publications/national-esd-strategy-part1#WIESD>, archived at <https://perma.cc/
YD5B-LGKV>. In legislation it is often expressed as a series of ESD ‘principles’ including
those of biodiversity conservation, polluter pays, intergenerational equity and the precau-
tionary principle: see, eg, Environmental Protection and Biodiversity Conservation Act 1999
(Cth) s 3A.
6 See, eg, Redbank Power (n 3); Australian Conservation Foundation Inc v Minister for the
Environment [2016] FCA 1042.

796 Melbourne University Law Review [Vol 41:793
development, such as the risks posed by sea level rise and increased
coastal flooding.7
The achievements of the first generation of climate change litigation in
Australia have been significant in a number of ways.8 Over time — in an
incremental and iterative fashion — these cases have consolidated the practice
of including climate change considerations in environmental impact assess-
ment undertaken for projects with substantial GHG emissions or the potential
to be impacted by climate change consequences such as sea level rise. 9 More
broadly, the cases have raised awareness of climate change as a key environ-
mental issue in the public, business, professional and government sectors.10
Nonetheless, climate change litigation in Australia has not achieved the
transformative impact seen in other countries. Australia, for example, has not
had a Massachusetts v EPA moment equivalent to that of the US. The US
Supreme Court’s decision in that case required the Environmental Protection
Agency (‘EPA’) either to regulate motor vehicle GHG emissions or better
justify its refusal to do so. 11 On the basis of this decision, the Obama admin-
istration found GHG emissions cause pollution that threatens public health
and welfare, and introduced regulations to limit such emissions from motor
7 See, eg, Wade v Warrnambool City Council [2009] VCAT 2177; Tauschke v East Gippsland SC
[2009] VCAT 2231.
8 While first-generation climate change cases have been decided by both state and federal
courts and tribunals across Australia, many of the cases with the most far-reaching impacts
are decisions of the NSWLEC: see, eg, the ‘Anvil Hill’ case of Gray v Minister for Planning
(2006) 152 LGERA 258. Courts in other jurisdictions, such as the South Australian Envi-
ronment, Resources and Development Court, the Planning and Environment Court in
Queensland and the Victorian Civil and Administrative Tribunal have also decided a
number of significant climate cases, albeit fewer than the NSWLEC. For details, see
University of Melbourne, Australian Climate Change Litigation (Database) <https://
apps.law.unimelb.edu.au/lawapps/climatechange/index.php>, archived at <https://perma.cc/
XMD9-C45G>. This case law database is searchable by jurisdiction. It is fair to say that cli-
mate change cases before federal courts in Australia have not achieved success as a legal
matter but have nevertheless had important indirect impacts on public opinion and govern-
ment behaviour as documented in Jacqueline Peel and Hari M Osofsky, Climate Change
Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press, 2015). For
another useful database for Australian climate change cases, see Chris McGrath, ‘Case Stud-
ies’, Environmental Law Australia (Database) <http://envlaw.com.au/category/case-studies>,
archived at <https://perma.cc/8977-LZYB>.
9 Jacqueline Peel, ‘Environmental Impact Assessments and Climate Change’ in Michael Faure
(ed), Elgar Encyclopedia of Environmental Law (Elgar, 2016) vol 1, 348; see especially
at 353–5.
10 These various ‘regulatory impacts’, direct and indirect, of the first generation of Australian
climate change litigation are discussed extensively in Peel and Osofsky (n 8).
11 Massachusetts v Environmental Protection Agency, 549 US 497 (2007).

2017] Shaping Climate Change Litigation in Australia 797
vehicles12 and stationary sources, such as power plants.13 A number of these
regulations have been slated for repeal by the Trump administration, 14 which
in turn may open up new litigation pathways.
Australia also has not seen the kind of common law actions that have been
brought in the US, alleging government or corporate responsibility for likely
climate change damage on the basis of actions in nuisance, negligence or
under the public trust doctrine. 15 Although the US Supreme Court signifi-
cantly limited federal public nuisance claims on the grounds that such actions
are displaced by Congress’s grant of authority to the EPA under the Clean Air
Act,16 that avenue could reopen if the Republican Congress — without the
veto constraints under President Trump that President Obama provided —
eliminates that authority. Efforts to use the public trust doctrine in the United
States achieved an important milestone in November 2016, when an Oregon
district court held in Juliana that constitutional due process and public trust
claims against the federal government for its failure to address climate change
12 Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of
the Clean Air Act, 74 Fed Reg 66496 (15 December 2009). See generally Peel and Osofsky,
(n 8) 65–8.
13 Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstruct-
ed Stationary Sources: Electric Utility Generating Units; Final Rule, 80 Fed Reg 64510 (23
October 2015) introduced a carbon pollution standard for new power plants under Clean Air
Act, 42 USC ch 85 (1970) § 7411(b). The Obama administration’s Clean Power Plan pro-
posed ‘emission guidelines for states to follow in developing plans to address greenhouse gas
emissions from existing fossil fuel-fired electric generating units’: Carbon Pollution Emission
Guidelines for Existing Stationary Sources: Electric Utility Generating Units; Proposed Rule, 79
Fed Reg 34830, 34830 (18 June 2014). In addition to the directives in President Trump’s
Executive Order and the EPA’s proposed rule repealing the Clean Power Plan described
below, this Clean Power Plan has been subject to challenge in industry lawsuits. In February
2016, the US Supreme Court issued a decision staying the EPA’s implementation of the Clean
Power Plan pending the resolution of these challenges before the District of Columbia Cir-
cuit Court: Order in Pending Case, West Virginia v EPA (9 February 2016)
<www.scotusblog.com/wp-content/uploads/2016/02/15A773-Clean-Power-Plan-stay-
order.pdf>, archived at <https://perma.cc/HKT9-SPSB>.
14 Executive Order No 13783, 82 Fed Reg 16093 (31 March 2017). Section 2 of the Trump
administration’s Executive Order requires an ‘immediate review of all agency actions that
potentially burden the safe, efficient development of domestic energy resources’. Section 3(ii)
rescinds the Obama-era Executive Order on carbon pollution standards for new power plants
and s 4 orders the EPA to review the Clean Power Plan. On 16 October 2017, the EPA pro-
posed a repeal of the Clean Power Plan, with comments due on 15 December 2017: Proposed
Rule, 82 Fed Reg 48035 (16 October 2017).
15 See Sabin Centre for Climate Change Law, Columbia Law School and Arnold & Porter Kaye
Scholer LLP, ‘US Climate Change Litigation’, Climate Change Litigation Databases (Database,
2017) <www.climatecasechart.com>, archived at <https://perma.cc/3SCT-H6JQ>.
16 Clean Air Act (n 13); American Electric Power Co Inc v Connecticut, 564 US 410, 423 (2011).

798 Melbourne University Law Review [Vol 41:793
sufficiently had been adequately alleged to survive a motion to dismiss.17
While the ultimate resolution of this case on the merits remains unclear, it
provides an important model for how a public trust claim can be framed in
the climate change context.
Courts in other jurisdictions issued ground-breaking decisions around
governmental duties to address climate change in the lead-up to the 2015
international climate negotiations in Paris. In June 2015, the Hague District
Court in the Netherlands handed down a decision finding that the Dutch
government’s 2020 GHG emissions-reduction target was inadequate in light
of international climate science and international climate policy, and ordering
the government to increase its target in fulfilment of a duty of care to its
citizens to safeguard them from the effects of climate change.18 Four months
later in September 2015, the Lahore High Court in Pakistan held that the
national government violated its citizens’ fundamental rights through delays
in implementing the country’s climate change adaptation policy framework.19
Greenpeace Southeast Asia, together with local groups and individuals, also
filed a petition that same month, which the Philippines Commission on
Human Rights is currently considering.20 The petition claims that major
contributors to climate change, including the 50 largest fossil fuel companies,
are violating Filipinos’ fundamental human rights. 21 That December, the
international community concluded a decades-long negotiation process to
adopt the 2015 Paris Agreement with the central goal of holding global average
17 Juliana (n 1).
18 Urgenda Foundation v Netherlands (Ministry of Infrastructure and the Environment),
Rechtbank Den Haag [Hague District Court], C/09/456689/HA ZA 13-1396 (24 June 2015)
(‘Urgenda’) [English translation] <https://uitspraken.rechtspraak.nl/inziendocument?id=
ECLI:NL:RBDHA:2015:7196>, archived at <https://perma.cc/L6KG-Z76S>.
19 Leghari v Federation of Pakistan, Lahore High Court Green Bench (Pakistan), WP
No 25501/2015, Orders of 4 September 2015 and 14 September 2015 <https://elaw.org/
PK_AsgharLeghari_v_Pakistan_2015>, archived at <https://perma.cc/U3QJ-D68E>.
20 Greenpeace South East Asia et al, Petition to the Commission on Human Rights (Republic of
the Philippines), Requesting for Investigation of the Responsibility of the Carbon Majors for
Human Rights Violations or Threats of Violations Resulting from the Impacts of Climate
Change (22 September 2015, amended 9 May 2016) <www.greenpeace.org/seasia/ph/press/
releases/Worlds-largest-carbon-producers-ordered-to-respond-to-allegations-of-human-
rights--abuses-from-climate-change/The-Climate-Change-and-Human-Rights-Petition>,
archived at <https://perma.cc/U3QJ-D68E>.
21 Ibid. The Commission accepted the petition in December 2015 and is currently conducting
its investigation: Greenpeace, ‘Philippines Launches World’s First National Human Rights
Investigation into 50 Big Polluters’ (Press Release, 4 December 2015) <www.greenpeace.org/
international/en/press/releases/2015/Philippines-launches-worlds-first-national-human-
rights-investigation-into-50-big-polluters>, archived at <https://perma.cc/8YCC-2HY2>.

2017] Shaping Climate Change Litigation in Australia 799
temperature rises to ‘well below 2°C’ and pursuing efforts to limit temperature
rises to no more than 1.5°C. 22
In light of these international developments, there has been increasing
discussion in the Australian environmental advocacy and legal communities
of the potential to emulate recent overseas climate change lawsuits with a
‘next generation’ of climate change litigation. 23 While there is a high level of
interest in pursuing such cases, many questions remain about what exactly
next-generation climate change litigation in Australia might involve. What
causes of action may be pursued and which might offer the best prospects of
success in an Australian legal context? What are the potential enablers of, and
barriers to, bringing next-generation climate change cases? More fundamen-
tally, is there a need for a next generation of novel climate change lawsuits or
are efforts to launch such cases better viewed as an extension of first-
generation litigation, building on the strategies and lessons developed through
that experience? This article provides the first comprehensive analysis of
these questions in an Australian context, with the aim of beginning, and
informing, further conversations around the future of climate-change
litigation in Australia.
Following an examination of ways of defining ‘next-generation’ climate
change litigation, Part II of the article considers the impetus for discussions
about initiating such cases in Australia. It identifies key drivers, including
recent high-profile international cases, the conclusion of the Paris Agreement,
advances in climate change science, and a changing business culture regarding
climate change risk. Part III then turns to the question of how next-generation
climate change litigation might be taken forward in an Australian context. It
canvasses potential pathways for next-generation cases, as well as their
relationship to past and ongoing first-generation litigation. A critical question
that arises in this regard is whether next-generation climate change cases
should displace or supplement first-generation litigation. Part IV considers
22 United Nations Framework Convention on Climate Change, Report of the Conference of the
Parties on its Twenty-First Session, Held in Paris from 30 November to 13 December 2015,
UNFCC Dec 1/CP.21, UN Doc FCCC/CP/2015/10/Add.1 (29 January 2016) annex (‘Paris
Agreement’) art 2.1(a).
23 See generally Australian Earth Laws Alliance, ‘AELA 2016 Conference: The Future of
Australian Environmental Law — Politics, Reform and Community Activism’ (Web Page,
2016) <https://perma.cc/T7YP-28VP>. These discussions clearly recognise that international
models will need to be adapted to local circumstances and take account of local legal con-
straints. These cases in other jurisdictions are thus considered an inspiration for new types of
climate change cases in Australia rather than examples that can be directly transposed into
the Australian legal environment.

800 Melbourne University Law Review [Vol 41:793
potential enabling factors and hurdles for next-generation climate litigation
that are shared with other types of public interest environmental litigation,
but which may manifest in different ways in next-generation cases. These
include: procedural questions relating to getting a case before the courts, such
as standing, case funding and costs risks, securing legal representation and
selecting an appropriate forum for the case; evidentiary aspects once the case
is in court such as issues of showing attribution and causation, and the
presentation of climate science in the courtroom; and new opportunities for
advocacy organisations to partner with companies, investors and others who
have aligned interests in clean energy transition or adaptation planning.
Part V concludes with a discussion of the competing strategic considerations
that are likely be in play as groups work to shape the next generation of
climate change litigation.
I I W H Y A ‘N E X T G E N E R AT I O N ’ O F C L I M AT E
C HA N G E L I T I G AT I O N ?
Unlike many other countries, Australia already has a significant history of
climate change litigation.24 The only country that has had more cases is the
United States.25 Therefore, in discussing next-generation Australian climate
change litigation, environmental advocates and lawyers are not talking about
how to start a climate change justice movement in this country,26 but rather
whether and how that movement needs to be revitalised, potentially through
bringing different sorts of lawsuits to those that have characterised the first
24 Meredith Wilensky, ‘Climate Change in the Courts: An Assessment of Non-US Climate
Litigation’ (Research Paper, Sabin Center for Climate Change Law, February 2015)
<https://web.law.columbia.edu/sites/default/files/microsites/climate-change/white_paper_-
_climate_change_in_the_courts_-_assessment_of_non_u.s._climate_litigation.pdf>, archiv-
ed at <https://perma.cc/UE3D-YRE6>.
25 Ibid ii.
26 Climate change justice is a rather elastic term used in many different ways by different
groups in different contexts. The Climate Change Justice and Human Rights Task Force of
the International Bar Association provides a leading discussion of the concept: International
Bar Association, Climate Change Justice and Human Rights Task Force, Achieving
Justice and Human Rights in an Era of Climate Disruption (Report, 2014) 2 <www.ibanet.org/
PresidentialTaskForceClimateChangeJustice2014Report.aspx>, archived at <https://perma.
cc/HPH3-CP64>. The Task Force defined climate justice in the following terms: ‘To ensure
communities, individuals and governments have substantive legal and procedural rights
relating to the enjoyment of a safe, clean, healthy and sustainable environment and the means
to take or cause measures to be taken within their national legislative and judicial systems
and, where necessary, at regional and international levels, to mitigate sources of climate
change and provide for adaptation to its effects in a manner that respects human rights.’