Climate Litigation in Australia: Current State of Play
Australia continues to be a highly active jurisdiction for climate-related lawsuits. The last few years have seen multiple suits commenced against corporations and governments in relation to climate issues, with more filings anticipated. To date, plaintiffs have experienced mixed degrees of success in prosecuting their claims and obtaining their desired remedies. However, there are several key cases still pending where the outcome could have significant implications for Australian corporations and others with investments or operations in Australia.
This article briefly surveys the current state of Australian climate change litigation, focusing on cases that are high-profile or have significant precedent value. It also compares trends seen in Australia with those being observed in the United States, Europe, and the United Kingdom, and offers some observations on likely future developments in Australia.
Cases Determined by Australian Courts or Settled to Date
The cases determined by Australian courts to date, or settled out of court, fall into three categories:
- Investor- or activist-led claims designed not to extract compensation but to obtain declaratory and injunctive relief that seeks to change corporate and boardroom behavior, or information to enable a plaintiff to investigate a potential claim;
- Tortious claims by community groups against government and corporations seeking redress for harm caused by climate change or other environmental impacts; and
- Challenges to government authorizations to energy and resources projects alleging unacceptable climate change and human rights impacts.
McVeigh v Retail Employees Superannuation Pty Ltd (Federal Court of Australia, Proceeding No. NSD1333/2018) is a notable example in the first category above. In that case, the plaintiff McVeigh, a member of the Retail Employees Superannuation Trust ("REST") superannuation fund, claimed that REST had violated its trustee obligations under various statutes by failing to provide information about how the fund was managing climate change risks to its investments. Ultimately, the parties reached a last-minute settlement prior to trial. Significantly, in the settlement, REST agreed to implement nine initiatives, including to achieve a net-zero carbon footprint for the fund by 2050 and to enhance its consideration of climate change risks when setting its investment strategy and asset allocation positions. While the settlement did not create binding legal precedent, the case was significant because it is the first time a claim of this kind has been attempted, and the outcome has been closely analysed by many sectors. Further actions against superannuation funds and others in the banking and finance sectors are now on foot, and more are anticipated in light of this settlement.
A significant case in the second category is Sharma v Minister for Environment (Federal Court of Australia, Proceeding No. VID389/2021). In that case, the plaintiffs brought a class action on behalf of all Australian children against the Federal Minister for the Environment (the "Minister") in relation to the Minister's decision whether to approve a major open-cut coal mine and associated infrastructure in regional New South Wales. Significantly, the claim (the first of its kind) alleged that the Minister owed all Australian children a duty to exercise her powers under relevant legislation so as not to cause them harm, including mental or physical injury and ill health caused by exposure to climatic hazards as a result of increased global temperatures. At trial, Justice Bromberg found in the children's favor, finding that the Minister had a duty to take reasonable care to avoid causing personal injury to the children when deciding whether or not to approve the project. The Minister appealed to the Full Court, who ultimately reversed the trial judge's decision, finding that the imposition of the proposed novel duty should be rejected. In doing so, the Full Court observed that the posited duty threw up for consideration "matters that are core policy questions unsuitable in their nature and character for judicial consideration." The plaintiff decided not to attempt a further appeal.
In addition, numerous lawsuits have been commenced by environment-focused NGOs and First Nations peoples against governments and corporations seeking to challenge authorizations and consultation processes in relation to energy and resources projects. A notable and high-profile recent example is Tipakalippa v National Offshore Petroleum Safety and Environment Management Authority ("NOPSEMA") & Anor (Federal Court of Australia, Proceeding No. 306/2022), where the plaintiff, a Tiwi Islander, was successful at trial in suing NOPSEMA and a major oil and gas company, Santos Limited ("Santos"), over the approval of drilling plans for a $4.7B offshore gas field on the basis that appropriate consultation had not been carried out (including in relation to environmental damage). Santos appealed, but the appeal was dismissed by the Full Federal Court, which affirmed that Santos was required to, and had not, undertaken the requisite level of consultation with the plaintiff and his clan, though it did not express a view on whether or not the project should be permitted to proceed. The project is at present continuing, but the decision has had significant implications for the conduct of environmental assessment and consultation processes for major energy and resources projects across Australia.
Cases Pending Before Australian Courts
A number of key climate-related cases remain pending before Australian courts. These include Pabai & Anor v Commonwealth of Australia (Federal Court of Australia, Proceeding No. NSD622/2021) and Australian Centre for Corporate Responsibility v Santos Limited (Federal Court of Australia, Proceeding No. NSD858/2021).
The Pabai case is a class action brought against the Australian government on behalf of Torres Strait Islanders, alleging that the government owes the Islanders a duty of care to take reasonable steps to protect them, their culture and traditional way of life, and their environment from climate-related harms. The plaintiffs allege the government breached this duty by, among other things, negligently failing to commit to an emissions reduction target consistent with the "best available science" and to implement measures to reduce emissions consistent with that target; and failing to provide adequate infrastructure to ameliorate physical climate-related impacts in the Torres Strait. The trial began in June 2023 and will continue through May 2024.
In the Santos case, the Australian Centre for Corporate Responsibility alleges that Santos breached various legislation by making misleading or deceptive claims about its hydrogen and gas products being "clean energy" and its having a "credible and clear plan" to achieve net-zero emissions by 2040. The plaintiff's claim, which is the first claim of its kind in the world, has been amended on several occasions since it was first filed in 2021. This has included amendments to incorporate further alleged instances of greenwashing said to have been identified following documentary discovery given by Santos in the case. The case is not anticipated to go to trial before 2024.
Comparison With International Trends and Looking Ahead
Like the United States, the United Kingdom, and Europe, Australia has seen a relatively large number of climate-related filings in recent years.
The Australian cases that have been determined to date indicate that the courts will exercise a significant degree of caution when determining plaintiffs' claims (particularly those that allege novel causes of action) and will not seek to stray into policy questions, or decision-making processes, that ought to be determined by legislators or appointed officials. This has parallels with the approach taken by the English courts in much of the climate change-related litigation determined there to date but can be contrasted with the position in Europe, where judges in some countries have so far been more willing to embrace novel arguments and claims. In the United States, the merits of recent climate change cases have largely not yet been decided.
Looking ahead, the pending Australian cases are being closely watched by multiple sectors. If they are decided in favor of the plaintiffs, there may be significant implications for corporations with operations in Australia.
In addition, there are numerous plaintiff law firms, interest groups, and litigation funders active in Australia, many of whom are sophisticated and well-resourced. It is expected that they will continue to seek opportunities to target government and corporations in climate-related cases going forward.
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