Climate Change Litigation – Is There A Tidal Wave On The Way?

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Published by Preston Law on 27/04/2020

Construction on the 3rd runway at Heathrow Airport has been temporarily stopped, but the reason for the downing of the tools is not COVID-19. 

In a recent decision handed down by the UK Court of Appeal on 27 February 2020, the Court ruled that the decision to expand Heathrow Airport with the additional runway was unlawful because the approval issued by the UK government did not consider the UK’s obligations under the Paris Convention on climate change. 

There have been plans afoot for many years to expand the Airport and there have been protests against the expansion particularly on air quality, noise pollution and other environmental factors.  However, one of the important factors that the Court considered, in this case, was that the approval for the development did not take into account the climate change commitments that the UK government had made under the Paris Climate Change Convention. 

The difference here is that the UK decision was based on the UKs’ obligations under an international treaty which it had ratified and then incorporated into its domestic legislation and was not focused on compliance with its planning and environmental laws. 

Why is this Relevant in Australia? 

Australia is also a signatory to the Paris Climate Change Convention and has made a commitment to reduce carbon emissions by 26-28% on the 2005 emission levels by 2030. So far it appears to be on target to meet that commitment. 

However, Australia has not enshrined this commitment to reduce carbon emissions in accordance with the Paris Climate Change Convention into domestic legislation. The UK government had ratified the Paris Climate Change Convention, had developed policy affirming its commitment to the Convention and enacted the UK’s Climate Change Act 2008. 

A review of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA Act) is underway with a report due in October 2020 for the Minister of Environment. While legislation is generally amended in accordance with government policy of the time, the terms of reference specifically include that the Australia government is committed to delivering improved environmental laws to ensure a healthy environment and strong economy. In addition, the review is to address current and future environmental challenges including consideration of Australia’s’ international environmental responsibilities. 

It would be hard to see how a review of the EPBCA Act could be conducted without reference to climate change and Australia’s commitment to a reduction in carbon emissions in accordance with international treaties to which it is a signatory.

State and local governments generally issue development approvals and there have been many Court decisions where legal action has been taken to prevent development on the basis of environmental harm and this is generally dealt with under Federal and State environmental laws. In Queensland, a person appealing a development approval is required to have standing meaning some skin in the game. Litigants commencing legal proceedings on the basis of climate change have not generally had sufficient standing but times are a-changing. 

Climate change litigation has been given a boost in recent times where the failure to consider the impact of climate change on development and business operations has also been considered by the Courts.

For example, the Rocky Hill coal mine development was refused on the basis that it did not comply with planning laws and it would cause substantial social and environmental harm. However, in this case, the Judge also referred to the contribution to climate change that development of a coal mine would have and the negative impacts in a much broader context than the actual location of the proposed mine. 

In Australia, recent cases include proceedings commenced against the Commonwealth Bank forcing it to include in its annual reports its climate change risk strategy for its shareholders and Mark McVeigh who sued his superannuation fund for failing to take appropriate steps to protect his investment from climate change-related risk. 

The concept of considering the threat to climate change in all aspects of business is gaining traction. Once the legislation catches up, as it is likely to, with the review of the EPBCA and possible codification of our international treaties into domestic law, entities will need to have in place appropriate climate change risk strategies and policies to ensure their interests, investments and ongoing operations satisfy shareholders, government and meet community expectations. If Australia follows the international trend, it will see more and more climate change litigation against businesses, corporations and government for failing to take steps to address climate change or for failing to comply with their obligations to protect the bottom line by mitigating the risk for their shareholders from the impact of climate change on their business. 

How can we help you?

Our team at Preston Law keep a weather eye on the latest in developments in environmental law and the surging interest in climate change policy development and are actively involved in advising clients of the potential legal ramifications for failing to consider the impact of climate change on their business or operations. 

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