These Aussie teens have launched a landmark climate case against the government. Win or lose, it’ll make a difference



Five of the eight young plaintiffs. From left: Ava Princi, Izzy Raj-Seppings, Ambrose Hayes, Veronica Hester, Laura Kirwan.
Equity Generation Lawyers

Laura Schuijers, University of Melbourne

On Tuesday, eight young Australians aged 13-17 filed a class action seeking an injunction to prevent federal Environment Minister Sussan Ley approving a new coal project expansion.

They are bringing their case to the Federal Court. They argue if Whitehaven’s Vickery coal mine expansion in New South Wales is approved, it will contribute to climate change which endangers their future.




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Saying the environment minister owes the young plaintiffs a duty of care is a novel approach. In their view, signing off on a new coal project will breach that duty. Such an approach to a climate change case has not been tested before in Australia, and would chart new territory if successful.

Although a legal victory would appear difficult on these grounds, the implications of this case are already significant. They show young people, determined to fight for action on climate, will continue to find new ways to hold powerful people to account.

What is the case about?

The case concerns a proposal to construct an open-cut coal mine, about 25 kilometres north of the NSW town of Gunnedah. It’s an extension project, meaning it will expand a mine that has already been approved, increasing its coal production by about 25%, and emissions by 100 million tonnes of greenhouse gases over the life of the project. The coal would be exported.

Like many mining proposals, this one has been divisive. Farmers worry about competing for water, and the local community has expressed concern over the environmental record of the coal company.

Yet in August, the NSW Independent Planning Commission approved the proposal, finding the expansion is in the public interest, given the forecast jobs and revenue. It has not yet received federal approval.

What are the teenagers arguing?

The young plaintiffs are not bringing their case under environmental law, which would be the traditional way to launch a legal challenge objecting to a coal mine.

Environmental law invites government decision-makers to balance competing concerns — such as economic benefits versus environmental impact — with no clear stipulation as to how much weight to give each relevant factor.

There is limited recourse to argue a decision is wrong because the positive and negative impacts were not given particular priority by a minister. This means decision-making on major projects is largely within the political realm.

Instead, the plaintiffs are arguing the environment minister shouldn’t approve the coal proposal because doing so would breach a duty of care owed by the minister to protect them from the harmful impacts of climate change. This includes more frequent extreme weather events, and destruction of the natural systems that support human life.

The case has parallels with a landmark Dutch case, where it was successfully argued in 2019 that the Dutch Government breached its duty of care to its citizens through inadequate action on climate change.




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For the Australian case to succeed, the Court will first need to consider whether a duty of care exists in Australian law. There is no statutory duty (under laws created by the parliament), so the Court would need to “find” the duty as existing in common law.

Then, the plaintiffs would need to establish that the duty would be breached by the environment minister signing off on the coal project.

Will it succeed?

Establishing both these things is likely to be very difficult in our legal context. From past cases, we know Australian courts have been reluctant to find a causal link between climate change and individual projects, even large mines. However, this link was found in a NSW case last year.

The court is likely to look closely at the particular relationship between the minister and the vulnerable young people, who will be strongly impacted by climate change but have no voting rights. It will consider whether they represent a particular class of individuals, in relation to which the minister has a responsibility.

One of the plaintiffs’ lawyers recently highlighted a case that potentially paves the way to support this idea. In 2016, the Federal Court found the immigration minister Peter Dutton owed a duty of care to a vulnerable refugee with a history of trauma, who was detained on Nauru.

One thing in the current case’s favour is that, similar to the Dutch case, the plaintiffs are not seeking monetary compensation. If they were, the difficulty for the courts to determine what future obligation the government might have to pay out young people would, almost undoubtedly, prohibit success.

What’s also interesting about this case, unlike the Dutch case or the famous Juliana case that was recently quashed in the US, is that it’s not asking the government for broad-scale policy action on climate change. It’s only concerned with one coal mine approval. This is a more straightforward remedy which a court could be more willing to grant.

Beating the odds

If the case successfully established a duty and that it was breached, this would open up the possibility future coal approval decisions would also breach the duty — somewhat of a Pandora’s box.

Although we will have to wait and see what the Court says, the suit will draw attention to the government’s climate policies, whether or not it succeeds.

If the case succeeds, it might compel the government to stop approving any coal mines that would significantly contribute to climate change. If it doesn’t, it will remind us that it’s up to the government to respond to the threats climate change poses, rather than the courts.

Either way, the teenagers in this case are part of a growing number of people willing to find creative avenues to pursue action, even if it means taking a long shot. And beating the odds is exactly how the law tends to evolve.




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The Conversation


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

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

Climate change is a financial risk, according to a lawsuit against the CBA


Anita Foerster, University of Melbourne and Jacqueline Peel, University of Melbourne

The Commonwealth Bank of Australia has been in the headlines lately for all the wrong reasons. Beyond money-laundering allegations and the announcement that CEO Ian Narev will retire early, the CBA is now also being sued in the Australian Federal Court for misleading shareholders over the risks climate change poses to their business interests.

This case is the first in the world to pursue a bank over failing to report climate change risks. However, it’s building on a trend of similar actions against energy companies in the United States and United Kingdom.


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The CBA case was filed on August 8, 2017 by advocacy group Environmental Justice Australia on behalf of two longstanding Commonwealth Bank shareholders. The case argues that climate change creates material financial risks to the bank, its business and customers, and they failed in their duty to disclose those risks to investors.

This represents an important shift. Conventionally, climate change has been treated by reporting companies merely as a matter of corporate social responsibility; now it’s affecting the financial bottom line.

What do banks need to disclose?

When banks invest in projects or lend money to businesses, they have an obligation to investigate and report to shareholders potential problems that may prevent financial success. (Opening a resort in a war zone, for example, is not an attractive proposition.)

However, banks may now have to take into account the risks posed by climate change. Australia’s top four banks are heavily involved in fossil-fuel intensive projects, but as the world moves towards renewable energy those projects may begin to look dubious.


Read more: How companies are getting smart about climate change


As the G20’s Taskforce on Climate-Related Financial Disclosures recently reported, climate risks can be physical (for instance, when extreme weather events affect property or business operations) or transition risks (the effect of new laws and policies designed to mitigate climate change, or market changes as economies transition to renewable and low-emission technology).

For example, restrictions on coal mining may result in these assets being “stranded,” meaning they become liabilities rather than assets on company balance sheets. Similarly, the rise of renewable energy may reduce the life span, and consequently the value, of conventional power generation assets.

Companies who rely on the exploitation of fossil fuels face increasing transition risks. So too do the banks that lend money to, and invest in, these projects. It is these types of risks that are at issue in the case against CBA.

What did the CBA know about climate risk?

The claim filed by the CBA shareholders alleges the bank has contravened two central provisions of the Corporations Act 2001:

  • companies must include a financial report within the annual report which gives a “true and fair” view of its financial position and performance, and

  • companies must include a director’s report that allows shareholders to make an “informed assessment” of the company’s operations, financial position, business strategies and prospects.

The shareholders argue that the CBA knew – or ought to have known – that climate-related risks could seriously disrupt the bank’s performance. Therefore, investors should have been told the CBA’s strategies for managing those risks so they could make an informed decision about their investment.


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The claim also zeros in on the lengthy speculation over whether the CBA would finance the controversial Adani Carmichael coal mine in Queensland. (The bank has since ruled out financing the mine.) The shareholders assert that the resulting “controversy and concern” was a major risk to the CBA’s business.

Global litigation trends

While the CBA case represents the first time worldwide that a financial institution has been sued for misleading disclosure of climate risk, the litigation builds on a broader global trend. There have been a number of recent legal actions in the United States, seeking to enforce corporate risk disclosure obligations in relation to climate change:

Energy giant Exxon Mobile is currently under investigation by the Attorneys General of New York and California over the company’s disclosure practices. At the same time, an ongoing shareholder class action alleges that Exxon Mobile failed to disclose internal reports about the risks climate change posed to their oil and gas reserves, and valued those assets artificially high.

Similar pathways are being pursued in the UK, where regulatory complaints have been made about the failure of major oil and gas companies SOCO International and Cairn Energy to disclose climate-related risks, as required by law.

In this context, the CBA case represents a widening of litigation options to include banks, as well as energy companies. It is also the first attempt in Australia to use the courts to clarify how public listed companies should disclose climate risks in their annual reports.

Potential for more litigation

This global trend suggests more companies are likely to face these kinds of lawsuits in the future. Eminent barrister Noel Hutley noted in October 2016 that many prominent Australian companies, including banks that lend to major fossil fuel businesses, are not adequately disclosing climate change risks.

The ConversationHutley predicted that it’s likely only a matter of time before we see a company director sued for failing to perceive or react to a forseeable climate-related risk. The CBA case is the first step towards such litigation.

Anita Foerster, Senior Research Fellow, University of Melbourne and Jacqueline Peel, Professor of Environmental and Climate Law, University of Melbourne

This article was originally published on The Conversation. Read the original article.