Climate science is now more certain than ever. Here’s how it can make a difference in Australian court cases

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Laura Schuijers, The University of Melbourne

On Monday, the Intergovernmental Panel on Climate Change (IPCC) released its long-awaited report on the physical impacts of climate change. It painted a terrifying picture of a warming planet increasingly subject to extreme weather events.

If there’s a silver lining to the 3,900 pages of gloom, it’s that there’s still time to avert the worst damage if global emissions are rapidly cut. So what happens if the Australian government continues to lag?

Well, while foreign countries can’t sue Australia under the Paris Agreement, they can apply political and economic pressure, such as through publicly calling our leadership out and applying carbon border adjustments.

But we’re also seeing another important and growing trend: domestic climate litigation.

In fact, Australia is second only to the US in terms of the volume of climate change cases brought before the courts.

In the last few years in particular, we’ve seen Australian cases succeed in influencing action. With this new IPCC report, climate science is more certain than ever, making it more likely this trend will continue.

Avoiding catastrophic impacts

The IPCC report concluded that escape from climate change is no longer possible. And, the report indicates, Australia will be badly hit.

It’s believed our best achievable scenario is to reach net-zero emissions by midcentury, on a global scale. This will hopefully equate with an around 1.5℃ temperature rise above preindustrial levels, which is what the IPCC says is our maximum to avoid catastrophic impacts.

 

Although some countries have made pledges under the Paris Agreement in line with this goal, Australia, we know, is shirking. If all countries adopted targets as weak as ours, global warming would be in the order of 4.3-4.5℃.

While climate change is caused by the actions of many, some are in better positions than others to mitigate it. So it’s no surprise businesses, financial institutions, and governments have been the prime targets of a new wave of litigation.

Courtrooms are changing

Fifteen years ago, the Australian federal court considered the climate change impacts of one particular coal project to be “speculative” and “minute”, citing a “paucity” of detail about the possibility of coal contributing to climate change.

But the situation is changing, and courts are changing with it. One of the reasons for the about-face is the progression of climate science and the availability of new information from advanced modelling. The work of the IPCC is instrumental to this.

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Read more: This is the most sobering report card yet on climate change and Earth’s future. Here’s what you need to know

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A couple of recent examples of cases show how climate science is becoming more influential in Australian court decisions.

In a case heard this week between the Bushfire Survivors group and the NSW Environmental Protection Authority, a NSW court allowed evidence to be presented from former Australian Chief Scientist Penny Sackett on climate change impacts.

It is the first time this kind of evidence has been allowed in a case about the alleged failure of an authority (the EPA) to perform a statutory duty (the regulation of greenhouse gases). On Tuesday, the Bushfire Survivors asked the court to allow her to comment on the IPCC’s sixth report.

And in a landmark case in May against the federal environment minister, the federal court found Australia’s young people are at high risk of suffering personal injury from climate change in their lifetime, including death and hospitalisation.

The judge was considering a coal mine approval. He said even though one coal mine won’t single-handedly cook the planet, it could serve as the proverbial straw that broke the camel’s back, given climate science tells us irreversible “tipping points” may be reached one day, and it could be soon.

The judge cited the IPCC’s findings, recognising the IPCC as the authority on climate change, and called on one of its authors as an expert witness.

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Read more: In a landmark judgment, the Federal Court found the environment minister has a duty of care to young people

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How will climate science play into future cases?

What’s happening in Australian courts is part of a bigger global trend.

It’s not just that the volume of cases is increasing, cases are also becoming more creative, exploring new avenues to hold polluters and decision makers to account. These cases are more likely to succeed where a link between actions and impacts can be supported with evidence.

In a case against Shell in May this year, a Dutch court ordered Shell to reduce its emissions by 45% by 2030, relative to 2019 emissions. To reach this figure, the court extensively cited the past work of the IPCC. It concluded Shell’s corporate policy was “hazardous and disastrous” and “in no way consistent” with the global climate target to prevent a dangerous climate change for the protection of people, the human environment and nature.

 

There are many ways climate science will be instrumental to the success of future cases. The evidence released so far by the IPCC shows us different warming scenarios under climate change, each depending on the actions we take now and in the near future.

Chapter 3 of Monday’s IPCC report is dedicated to spelling out the now “unequivocal” influence of humans. This type of evidence could support cases seeking to force government action, as well as cases against businesses for failing to disclose and mitigate climate risk, and for greenwashing.

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Read more: Communicating climate change has never been so important, and this IPCC report pulls no punches

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Next year, the IPCC will release its findings on impacts, adaptation, and vulnerability. This could support cases relating to fire, flood, and sea-level rise, including human rights cases, property, planning, and insurance cases.

Climate change will unfortunately be costly, and litigation can help determine who should take action, and who should pay.

The more Australia’s governments and businesses lag on climate change, the more litigation we are likely to see. And, the greater the extent leadership decisions are at odds with the science, the stronger plaintiffs’ cases will be.

 

 

 

Laura Schuijers, Research Fellow in Environmental Law, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Landmark Rocky Hill ruling could pave the way for more courts to choose climate over coal

A favourite argument of coal proponents is the idea that if their mine is knocked back, someone else will simply dig up coal elsewhere.
Mister Mackenzie/Wikimedia Commons, CC BY-SA

Justine Bell-James, The University of Queensland

On Friday, Chief Judge Brian Preston of the New South Wales Land and Environment Court handed down a landmark judgement confirming a decision to refuse a new open-cut coal mine near Gloucester in the Hunter Valley. The proposed Rocky Hill mine’s contribution to climate change was one of the key reasons cited for refusing the application.

The decision has prompted celebration among environmentalists, for whom climate-based litigation has long been an uphill battle.

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Read more:
Adani court case leaves the climate change question unanswered

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Defeating a mining proposal on climate grounds involves clearing several high hurdles. Generally speaking, the court must be convinced not only that the proposed mine would contribute to climate change, but also that this issue is relevant under the applicable law.

To do this, a litigant needs to convince a court of a few key things, which include that:

• the proponent is responsible for the ultimate burning of the coal, even if it is burned by a third party, and

• this will result in increased greenhouse emissions, which in turn contributes to climate change.

In his judgement, Preston took a broad view and readily connected these causal dots, ruling that:

The Project’s cumulative greenhouse gas emissions will contribute to the global total of GHG concentrations in the atmosphere. The global total of GHG concentrations will affect the climate system and cause climate change impacts. The Project’s cumulative GHG emissions are therefore likely to contribute to the future changes to the climate system and the impacts of climate change.

Other courts (such as in Queensland, where the proposed Adani coalmine has successfully cleared various legal hurdles) have tended to take a narrower approach to statutory interpretation, with climate change just one of numerous relevant factors under consideration. In contrast, Preston found climate change to be one of the more important factors to consider under NSW legislation.

To rule against a coalmine on climate grounds, the court also needs to resist the “market substitution” argument – the suggestion that if the proponent does not mine and sell coal, someone else will. This argument has become a common “defence” in climate litigation, and indeed was advanced by Gloucester Resources in the Rocky Hill case.

Preston rejected the argument, describing it as “flawed”. He noted that there is no certainty that overseas mines will substitute for the Rocky Hill coalmine. Given increasing global momentum to tackle climate change, he noted that other countries may well follow this lead in rejecting future coalmine proposals.

He also stated that:

…an environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact.

What does the future now hold?

There should be no doubt that this is a hugely significant ruling. However, there are several caveats to bear in mind.

First, there are avenues of appeal. In the absence of a robust legislative framework prohibiting mining operations, it is ultimately up to a court to interpret legislation and weigh up the relevant factors and evidence. The NSW Land and Environment Court has a strong history of progressive judgements, and it is not certain that this example will be followed more widely in other jurisdictions. That said, Preston’s reasoning is firmly grounded in an analysis of the relevant scientific and international context, and should be a highly persuasive precedent.

Second, it is also important to remember that this judgement arose from an initial government decision to refuse the mine, whereas many other legal challenges have arisen from a mining approval.

Finally, climate change was not the only ground on which the mine was rejected. The proposed mine would have been close to a town, with serious impacts on the community.

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Read more:
Carmichael mine jumps another legal hurdle, but litigants are making headway

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Nevertheless, this decision potentially opens up new chapter in Australia’s climate litigation history. Preston’s ruling nimbly vaults over hurdles that have confounded Australian courts in the past – most notably, the application of the market substitution defence.

It is hard to predict whether his decision will indeed have wider ramifications. Certainly the tide is turning internationally – coal use is declining, many nations have set ambitious climate goals under the Paris Agreement, and high-level overseas courts are making bold decisions in climate cases. As Preston concluded:

…an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time… the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.

Indeed, it is high time for a progressive approach to climate cases too. Hopefully this landmark judgement will signal the turning of the tides in Australian courts as well.

Justine Bell-James, Senior lecturer, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Australia: Tasmania – Tarkine Mine Halted

The link below is to an article reporting on a court decision to halt a mine in the Tarkine region of Tasmania until a final decision has been reached.

For more visit:
http://www.australiangeographic.com.au/journal/tarkine-mine-on-hold-in-court.htm

Sea Shepherd: Pirates

The link below is to an article on the conservation group ‘Sea Shepherd.’ A US court has labelled the group ‘pirates.’ I find it difficult to disagree.

For more visit:
http://www.guardian.co.uk/environment/2013/feb/27/sea-shepherd-pirates-us-court

The Wilderness Society Being Torn Apart

Infighting is threatening to destroy the environmental group, ‘The Wilderness Society.’ A court battle now looms in order to sort out the mess that has become The Wilderness Society.

This is a group that I have supported in the past and depending on the outcome of the court case and what then happens with The Wilderness Society will determine whether I support the group again.

The Wilderness Society is a well known environmental group in Australia. It was formed to fight the Franklin Dam project in Tasmania in the 1970s.

The following link is to an ABC news article reporting on the story:

http://www.abc.net.au/news/stories/2010/05/03/2889021.htm

The Wilderness Society website:

http://www.wilderness.org.au/

The video below is a reflection on the Franklin Dam project protest.