Pointing out the potential risks to business and government of ignoring or denying the reality of climate change.....
The
Canberra Times,
29 May 2019:
Since the late 1990s,
Australian politics on climate change has been divisive.
Although Australia
signed the Kyoto Protocol in 1998, it did not ratify it until 2007.
Then, in
2011, the Clean Energy Act purporting to reduce greenhouse emissions was passed,
only to be repealed in 2014.
In 2016, Australia
ratified the Paris Agreement and the Doha Amendment to the Kyoto Protocol;
however, any serious action on climate change remains to be seen.
At the same time, some
states and territories also have emissions reduction targets.
The uncoordinated
approach is a problem for at least two important reasons.
First, climate change is
an ever-increasing phenomenon, with tremendous impact on corporate, social and
political discourse. Any meaningful legal framework to govern climate change
requires the development of a legal consensus at the federal level, in line
with international commitments.
Second, there is a
rising wave of climate change-related litigation globally which is headed for
Australia. Climate change litigation 2.0 (targeting companies) and climate
change litigation 3.0 (targeting governments) will sink Australia, unless
drastic measures are implemented.
Under the current legal
regime, company directors may only be liable if found to be in breach of their
duty of care or for failing to address a foreseeable risk. However, guidance
from case law suggests that it is difficult to establish that the actions or
omissions of a particular entity or director caused or contributed harm to be
suffered by another. With the arrival of climate change litigation 2.0, this
will all change.
For one, litigation 2.0
will force companies to assess and report on the risks of climate change and
potentially set out plans for mitigating those risks. The recent tide of
comments from the Australian Securities and Investments Commission, the
Australian Prudential Regulatory Authority and the Reserve Bank of Australia
are a testament to this.
Companies and their
directors could soon face liability (including personal liability) if they fail
to assess and address risks relating to climate change. Investors, shareholders
and even communities will be able to recover losses and seek damages from
companies and their directors, auditors and advisors, for failing to assess and
mitigate risks.
As major climate change
attribution studies emerge to assist in tracing particular weather events with
greenhouse gasses, causation will be easier to establish. It is likely that in
the future, courts will rely on such studies to conclude that a particular
entity has contributed, at least in some proportion, to a particular harm……
Although unprecedented
and unheard of in Australia, climate change litigation 3.0 will be the next
phase. It will allow Australians to bring action against the government for
failing to mitigate risks.
Claims of this nature
around the world are already proving to be quite successful.
The Urgenda
litigation in the Netherlands is the leading example. In that case, a Dutch NGO
argued that the Netherlands Government had breached its duty of care to the
Dutch people by failing to mitigate the risks of climate change and reducing
greenhouse gases. The remedy ordered by the court was that the Netherlands
Government reduce emissions by at least 25 per cent by the end of 2020….. [my yellow highlighting]
It should be
noted that on 8 February 2019 the NSW
Land and Environment Court in its judgment Gloucester
Resources Limited v Minister for Planning [2019] NSWLEC 7 accepted
that climate change formed part of critical reasons to reject a mine
development.
Gloucester Resources
decided not to appeal this decision and the proposed 830ha Rocky
Hill Coal Mine in the Hunter Valley region will not proceed.
