Part One of this post summarised the global developments in climate litigation and the climate justice and liability movements since 2018. Part Two turns its focus to developments in Australia, which has had second-most climate cases globally (more than 90 according to the Sabin Center for Climate Change Law). In continuing to recognise that climate change litigation is situated within and a conscious strategic choice of social movements, this Part first considers developments in the Australian climate movement before focusing on litigation.

The two major trends in the global climate movement discussed in Part One are mirrored in Australia. The degree of public outcry––first as part of the globally-coordinated Friday climate strikes and then in the protests responding to the inadequacy of the government response to the summer 2019-2020 bushfires––is arguably unprecedented in the recent history of Australian environmentalism. Indeed, to describe these protests in terms of “environmentalism” seems somewhat antiquated. Reflecting the “rights-turn” in climate litigation, the public discourse around the bushfires increasingly has focused on its human dimensions rather than its ecological dimensions (to the extent that these can be treated as separate concepts, and not to discount the incredible ecological damage wrought by the fires). The momentum and public pressure created by these protest waves has been smothered in recent months––first by the torrential rains that both extinguished the fires and compounded their ecological impact, and then by coronavirus-mandated social distancing that prevents mass protest (although climate activists are innovating here, too)––but is poised to re-emerge post-pandemic and in the wake of future climate disasters. A nascent green new deal discourse is also taking hold in Australia, advanced at the parliamentary level by new Greens leader Adam Bandt and at the grassroots by groups such as the Climate Justice Collective.

Australia, too, is seeing several major developments in the climate litigation landscape. To begin with, I was perhaps too dismissive of the ongoing potential of conventional administrative litigation. The Rocky Hill case is a landmark judgment, and a stroke of strategic genius insofar as it arose out of a targeted community intervention in a merits hearing, in circumstances where the original decision-maker had recommended denying the environmental approval. But even this significant victory has its caveats. Despite influencing a number of successive judgments and administrative decisions, the precedent set in the Rocky Hill Case regrettably has not been any less vulnerable to the same kind of political intervention and legislative override at the behest of the fossil fuel industry that plagued earlier legal victories in Australia. Additionally, I would argue that, to the extent that the success of the Rocky Hill litigation has resonated with the public more profoundly than previous legal actions, this is arguably because the central legal argument in the case does not concern more esoteric environmental considerations or matters of administrative procedure, but instead echoes the “keep it in the ground” discourse contained within the broader movement. 

The potential for ongoing political meddling notwithstanding, an approach focusing on the destructive climate impact of Australia’s fossil fuel exports is perhaps indicative of the direction that conventional administrative climate change litigation will take in Australia. In my opinion, this is a welcome development. Australia’s greatest contribution to the global issue of climate change arguably is not in reducing its in-boundary emissions (although it is of course important that Australia be an early mover on mitigation, energy system transformation and renewable energy development, and shift to being a constructive and non-obstructionist actor in international negotiations) but in keeping its vast coal and gas reserves undeveloped.

Beyond the Rocky Hill Litigation, we are also seeing new approaches being developed and tested in Australia. A clear example of this is the McVeigh litigation testing the duties of Superannuation fund managers to consider climate-related risks to their investment portfolio. This case is slated for trial later this year. Another example is the petition to the UN Human Rights Committee on behalf of Torres Strait Islander representatives. Although the outcome of the petition process is not enforceable domestically, it is an important legal forum to assess the human rights implications of Australia’s conduct on climate change. A strong outcome from the Human Rights Committee may have positive political ramifications, and pave the way for future novel legal approaches under State-level human rights charters or a future Commonwealth charter of rights.

One further development worth mentioning briefly is the decision of each of the formerly state-based environmental defenders offices (EDOs) in Australia to merge into a single national organisation. It remains to be seen what kind of impact this will have in terms of promoting novel litigation approaches. It might be thought that such a move would further homogenise the sector and thereby limit the potential for pioneering litigators to emerge. However, to the extent that this merger allows a national EDO to attract more funding and apply its resources to key fossil fuel struggles without geographic limitation, this could allow the sector-leading EDO to overcome its previous resource constraints and increase the potential for more impactful litigation. That one of the first cases filed by the new EDO seeks to compel the NSW Environmental Protection Authority to regulate greenhouse gas emissions (an argument paralleling Massachusetts v. EPA), and puts the impacts to and stories of its clients front-and-centre, is cause for optimism.

Conclusion

Both globally and in Australia, the climate justice and liability movement has exploded in the last 24 months, and is as strong and vibrant as ever. In particular, we are seeing increasing synergies between the demands of climate change litigation and the broader movement. Many of these trends are catching on in Australia to greater and lesser extents. Nevertheless, we are still yet to see litigation in Australia that has the scope, ambition, framing and transformative potential of an Urgenda or Juliana. The trends covered in this post do suggest, however, that such a breakthrough may be near and that, as the culture outside the courtroom shifts, its prospects and strategic potential are greater now than at any point previously. Furthermore, if and when the climate movement succeeds in achieving its demands ––a rapid economic transformation and deep emission reduction at a scale proportionate to the scientific urgency of the climate crisis, while simultaneously creating jobs and revitalising the welfare state––the work of the legal community may then be needed to ensure that these policies and programs are not undermined by challenges from the fossil fuel industry, and are properly implemented and enforced.

Danny Noonan is a climate change advocate, scholar, and Australian-qualified lawyer. He is a co-founder and board member of Breach, a newly-established organisation that partners with frontline communities to advance climate justice through legal advocacy, grassroots organizing, and strategic communications.