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Thread: The climate crisis poses an existential threat to humanity. Australia is on the front-line. I saw it first-hand, living through the NSW bushfires. Successive governments have delayed/denied. Are we doomed? Well, some lawyers are getting creative... https://www.thesaturdaypaper.com.au/news/environment/2020/08/01/suing-climate-action/159620400010196
Litigating environmental issues is not new in Australia. @AusConservation has a long history of doing so. The first 'climate' litigation in Aus arose in 1994, when @GreenpeaceAP - helped by @EDOLawyers - challenged the construction of a coal-fired power plant.
Ever since, these administrative law-style planning cases have been at the frontline of litigation. This is because a) Australia's biggest climate impact is digging up fossil fuels, so stopping them has an outsized impact b) our laws, otherwise, are not climate activist friendly.
Such cases remain the mainstay - just last year, @ElaineEDO and @EDOLawyers successfully blocked the construction of a coal mine in NSW on the basis of its climate impact. The Land & Environment Court's judgment was truly groundbreaking.
But, lawyers are beginning to think bigger. This creative climate lawyering is taking a few strands. The first is conceptualising climate change as a corporate/financial risk. @dbarnden has been at the forefront of this - suing REST super fund & just last week the federal govt
If these cases succeed, the impact could be significant - both here & overseas. Investment funds & companies will need to consider and disclose climate risk. These two cases, McVeigh and O'Donnell, are world-first. Speculative, but persuasive. We will watch and wait.
The next strand has been aimed at government action & inaction. This year, @EDOLawyers sued the NSW environment authority for their failure to have a climate policy https://www.edo.org.au/2020/04/20/bushfire-survivors-take-action-over-nsw-climate-policy/
This approach, relying on statutory duties & govt obligations, is interesting. We will see more in the area. In NZ, a litigant sued the NZ govt for failing to meet their Paris obligations. The court held that the claim failed but, crucially, decided that it was justiciable.
Another approach has focused on human rights. That has worked elsewhere, but Australia doesn't have many enforceable human right protections. But, this year a youth group sued to block Clive Palmer's coal project on the basis of Qld's new HR laws https://theconversation.com/these-young-queenslanders-are-taking-on-clive-palmers-coal-company-and-making-history-for-human-rights-138732
Another approach still, which succeeded in the Netherlands in the landmark Urgenda case, is to sue the government for negligence. No-one has (yet) tried this in Australia. But the Dutch government has been forced by their Supreme Court to act swiftly on climate change.
. @timinmitcham, a specialist on this question in the Australian context, told me 'I believe there is a chance of success here on Urgenda grounds.'
Beyond that, who knows. Lawyers, including @EDOLawyers and @EJ_Aus, are thinking really hard about the many ways in which the courts could be used to progress climate action. As @timinmitcham told me: 'If you roll the dice often enough, one could lead to the shift we need.'
I interviewed 10 people this week who work in this space, for my @SatPaper feature. The overwhelming sense I got was of determined individuals who are on the right side of history. @ChrisMc29415875 compared it to civil rights litigation in the US, or tobacco lawsuits.
. @ChrisMc29415875's comments resonated with me: 'As lawyers our job is to find ways to bring those causing that damage to account. Eventually we will succeed.' One day, we will look back on these climate litigators and brave plaintiffs and thank them for doing what was right.
Full story here, for @SatPaper. Journalism isn't free - please support independent Australian media! https://www.thesaturdaypaper.com.au/news/environment/2020/08/01/suing-climate-action/159620400010196
