The law and climate: an address from Justice Brian Preston, Chief Judge of the Land and Environment Court

Bob Carr: Oh for a muse of fire that would ascend the brightest heaven of invention. In introducing Justice Brian Preston the Chief Judge of the Land and Environment Court of New South Wales, I feel like the chorus in Shakespeare's Henry V. A kingdom for a stage, a princess to act, and monarchs to behold the swelling sing because in this spirit on this broadcast this webinar I’m asking you to imagine that you're in the great hall of our great campus with 500 others all committed as we are to exploring the greatest challenge of our time. The warming of the planet and what humanity can do about the warming of the planet. COP26 approaches fast. Nations are racing to expedite commitments. Big decisions are being made like the decision only days ago the Bank of China to withdraw funding to coal-fired power. Developments are happening in the courts as well as we indicated in our invitation both in Australian jurisdictions and overseas and they are contributing to this expedition, expediting of the pace towards global responses on climate. So in Shakespeare’s words, “admit the chorus to this history who prologue like your humble patients pray gently to here kindly to judge our play”, Chief Justice Brian Preston.

Brian Preston: Well thank you very much for the invitation. It's a great pleasure to present. I’m just gonna put my screen up here and what I’m talking about is climate litigation and I’m looking at the cases and the trends that we see in those cases. So I’ll start with a little bit of a an introduction of climate litigation what where who and why that just sets the scene. I’m then going to group the trends that we see but not only in Australia but overseas all around the world on three categories. Firstly about accountability of government. Secondly accountability of the private sector and Thirdly looking at litigation that's based upon human rights. I will look at the future outlook but I’m going to weave that in to my discussion of the current trend so each of those three categories where I’ve given you the cases I’ll give you some of the new ones or the likely ones that are going to come in those areas.

So let's start with the climate litigation. What do we mean? Well there's a number of different definitions. I’m going to take a rather broad view of what we mean it's not only those actions that we can think of in courts but it could be in other bodies. They can be in international courts or domestic courts they could be in international organisations. They are any matter that raises issues of law or fact regarding the science of climate change and concern either mitigation or adaptation to climate change. Now we can see climate litigation and we typically think of it as being a pro regulatory. That is its aim to increase climate mitigation or adaptation but we do see action particularly in the United States which is anti-regulatory. That is where the action has been taken to be more ambitious in mitigating or adapting to climate change their actions by essentially corporate world against the new regulations. We can also see climate litigation where it's only one of the issues It might even be a peripheral issue in climate in the litigation so some of the cases that are referred to there were multiple issues. There might be other environmental issues or administrative law issues, constitutional law issues and climate change issues are just some of them . We also can see a variety of different legal processes jurisdictions and actors who are bringing it.

So where do we see climate litigation happening? Here’s a map showing the number of cases that have been brought around the world. Its current up to May of this year. What we could see is the greatest number of cases have been in the United States so we've got up to the end of May 1841 cases there, I’m sorry 1387 cases in the US. The second biggest jurisdiction which climate change litigation has been brought is Australia. After that it would be in the United Kingdom and then you can see just looking at the colours there where else it has been brought. Some in Europe some in South America and then it becomes a little less as you go through the other areas. Now although the greatest number have been brought in the United States, very few have been successful and very few have actually managed to get to final trial. The American legal system is preoccupied with interlocutory skirmishes and so there have been a lot of actions brought but they fail at the standing or justiciability or some other interlocutory stage.

 

So who are the people who are bringing the climate litigation? It's a bit hard to see but there are different colours there if you go for the sort of purple almost blacky sort of colour there down at the first at the bottom of each of those bars. That's the NGOs and then the next one, the darker blue is individuals but what we can see is then a lighter blue colour almost a greeny sort of colour is corporations. That's actually quite interesting if you look at this as if you remember that the US accounts for most of the, in percentage terms, the litigation that's brought. Just look there around where Obama came in the United States. One of the famous cases is Massachusetts and EPA where the state of Massachusetts amongst other states brought action against the Federal Environment Protection Agency in America for failing to take action to regulate greenhouse gas emissions from motor vehicles. At that time because they were republican ruled the EPA was saying that greenhouse gases are not pollutants and therefore we can't regulate them under the clean air act. That case, that attitude, was challenged and went to the US Supreme Court in 2005. The US Supreme Court found that they could regulate greenhouse gas emissions they were a pollutant. Now then we had the Obama election and the EPA was directed to take stronger action on climate change. Not being able to get things through congress they did it through administrative orders and regulations and there was a great growth in greenhouse gas regulation. What we then see is challenges, so they're anti-regulatory challenges brought by corporations so you can see that increase through the Obama period. Then we can see the change where Trump comes in and he started to repeal all of the Obama era greenhouse gas emissions climate change regulations and administrative orders. So what we see is a decrease in the corporate actors bringing the litigation and a dramatic increase in NGOs and individuals and some governments coming so which were sort of more democrat leaning challenging that era. So we can see it does change depending upon what is the state of regulation.

So why do they bring litigation? Well the first is to influence the legislature and the executive branch of government so they're taking it to the courts to try and get the courts to influence those two what are called political branches of government. The second is it's done to influence private actors and particularly corporates. So their behaviour. We'll see some of those cases in a moment when I take you through. So that's been an increase and that's one of the trends but a second one is that it's, sorry third one, is to influence public discourse and broader societal change because courts are public forums and their actions are open to the public to listen to the hearings but they're also reported on in the media and in more broader in society and there can be this public discourse and we see that when you know cases some of the cases that I’m going to show you have been picked up in the media and there's been a lot of discussion about it and so that we can see is a reason to bring litigation in the courts.

So now come to the trends. So as I said I’m going to group the cases and the trends in three categories. Government accountability, the private sector and human rights. So let's start with government accountability. So these are mainly I’m going to deal with the pro-regulatory actions rather than the anti-regulatory actions. So they're seeking to hold governments to account for a failure to take climate action either for mitigation or adaptation and they're often centred on the commitments or the targets that is the ambition of the government to reduce greenhouse gas emissions. Now they may be under the what they call nationally determined contributions that countries who are signatories to the Paris agreement are required to submit and in time will be required to increase become more ambitious. So there's two real categories of cases, one is concerning this government action remission and the second is where government has authorised some development or activity by you know private or third party actors.

So let's start with probably the best known of these cases about government accountability and that was the action by the Urgenda Foundation in the Netherlands and Urgenda is a contraction of two words urgent agenda and it's a Dutch environmental group but they were joined by a number of 900 in fact citizens in the Netherlands. Now it is the first litigation to successfully challenge the adequacy of a national government's approach to reducing emissions as I’ll show you it was that it wasn't sufficiently ambitious and that's what they were challenging. They had two basic claims. One under the Dutch civil code in hazardous negligence for a breach of the duty of care and the second was a breach of human rights law particularly the European Convention on Human Rights.

So it started in the Hague in the district court they started the action before the Paris agreement and that's interesting because there was a change as it worked its way up the judicial hierarchy in the Netherlands but in 24 June 2015 the Hague district court delivered its judgment. So around the time of the Paris agreement so it was topical. So the Dutch government had set a target I think it was about 17 percent it was quite low to reduce emissions and they had said in other documents that at least 25 was needed but they weren't implementing that. The Urgenda asked for a higher percentage but settled on 25 saying well if the government had said 25 was what was needed then surely that should set the floor for the emissions reduction. The Hague district court accepted that they found the Dutch government was liable as I said under the Dutch civil code in hazardous negligence. So they first looked at the severity of the consequences of climate change and the great risk of hazardous climate change occurring without taking mitigating measures and they said that the state the Dutch government had a duty of care to take those mitigation measures and they dismissed the idea or commonly called the drop in the ocean argument that you know the Dutch contribution to global greenhouse gas emissions is quite small and surely that means that the Dutch government shouldn't have to do anything. They said no they need to take action. Everyone has to pull their do their fair share so they found that there was a duty of care. They found that the Dutch government had breached that duty of care by not setting a sufficiently ambitious target to reduce greenhouse gas emissions and therefore they were negligent and so they ordered them to reduce by 2020 their emissions by 25 on the base year of 1990.

The Dutch government appealed to the Court of Appeal that took a while to come up so 2018 three years later the Hague Court of Appeal dismissed the Dutch government's appeal firstly on the negligence grounds where the district court had found that they had breached the duty of care but they also upheld a cross appeal on the human rights claim so under the European convention a human right so two critical articles, article two which protects a right to life and article 8 which protects the right to private life, family life, home and the court found that dangerous climate change threatens the lives well-being and environment of citizens in the Netherlands and worldwide and as a result it threatens the enjoyment of citizens rights under those two articles. Articles two and eight of the convention. So they found that the those articles created an obligation for the Dutch government to take positive measures to contribute to reducing emissions relative to its own circumstances.

The Dutch government again appealed this time to their highest court the Supreme Court of the Netherlands and at the end of 2019 the supreme court again dismissed the Dutch government's appeal. So it upheld the Court of Appeals decision that there had been a breach of the European Convention on Human Rights and the that courts finding that there was a positive obligation to take measures to prevent climate change. So again they compelled the Dutch government to meet the target that had been set by the lower court of reducing by 25 greenhouse gas emissions compared to 1990 by the end of 2020. They also dismissed the drop in the ocean argument.

So we can then start to see how this sort of actions for government accountability manifest in different ways. So my first one is for inadequate laws right now. Under the, in Germany they enacted a climate protection law and that set certain emission reduction targets. So a group of youth plaintiffs led by Louisa Neubauer challenged the constitutionality of that statute, that climate protection law. They looked at the German Constitution and they said it enshrines a right to future freedoms that protect the complainants against threats to freedom caused by greenhouse gas reduction burdens being offloaded onto the future. How does that happen? Well if you set too low reduction targets then effectively more will need to be done in the future because you're doing less now and so they said this is an intergenerational equity issue and that breached the constitution. So they said that, this is the constitutional court, said that the German protection law was unconstitutional because it breached those guarantees in the constitution. So they struck down the law and they ordered the government to remake the emission reduction targets in new law and to determine the targets going forward. So that's inadequate laws.

Now let's come to inadequate policies so I’m going to Ireland now in 2020. So the again there was a statute, the Climate Action and Low Carbon Development Act and the challenge by an environmental NGO was that the mitigation plan that had been formulated under that law set to lower targets and that led to a breach of the European convention, again the right to life article two the right to private family life article eight. So it went ultimately up to the supreme court and the supreme court said that the policy the national mitigation plan that had been made under the statute fell short of what was required. It lacked the specificity that the statute required because a reasonable reader of the plan would not understand how Ireland would achieve its 2050 goals and a compliant plan must be sufficiently specific as to the policy over the whole period to 2050. So think at the moment there's a lot of talk about net zero by 2050. The problem is, how do we make that? You can't just arrive at 2050 and say I’m a net zero. You've got to do something to position yourself to actually achieve net zero by 2050. So similarly the Supreme Court of Ireland is saying that a the national mitigation plan didn't give the specificity as to how you achieve over the whole period to 2050 the reductions that you need.

So let's go to the next one. So there's the ones where you've actually made a law or made a policy but what about a duty to do something to make regulations or to make policy? So here I’m going to go to the United States. It's a case in one of the states of the United States where there was again a statute the Global Warming Solution Act and under that act there was a duty to promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions and impose a limit of emissions that may be released to limit the aggregate emissions released from each group of regulated sources or category sources and to set admissions targets for each year and set limits that decline on an annual basis. They're quite specific as to what needed to be done but in this case the relevant environment department called the Department of Environment Protection in Massachusetts failed to promulgate those regulations that met what the statute required and so the Supreme Judicial Court in Massachusetts said that the department's regulatory initiatives hadn't satisfied the statutory obligation to promulgate regulations.

I’m now back to Australia so New South Wales. This is a decision of mine a recent decision so under the Protection of the Environment Administration Act in New South Wales section 9 there is a duty to develop and these are the words environmental quality objectives guidelines and policies to ensure environment protection. So what did that mean? Well I found that it included a duty to develop instruments of that kind to ensure the protection of the environment from climate change and the reason was that the words environment protection to ensure environment protection are words that in statutory language are always speaking. They're referring to what are the current threats to the environment against which the environment needs to be protected and at the current time in the place of New South Wales the threat to the environment posed by climate change is of sufficiently great magnitude and sufficiently great impact to be one against which the environment needs to be protected. So although the EPA had a discretion as to the specific content of the instruments it develops under that section the section nine, nevertheless it needed to do something. It had to develop environmental quality objectives guidelines and policies to ensure protection of rhyme protection from climate change and so I made an order that the government or the EPA do that and it's been an announcement that the EPA will be doing so.

All right so that's about we've now had the duty to prepare regulations or laws or to prepare policies. What about enforcing the laws? So let's come to a recent case in the United Kingdom a five-year-old boy who lived in very close proximity to a landfill site brought action to compel the UK environment agency to take action to prevent emissions from the landfill and the particular one which was causing harm was hydrogen sulphide. But we know that also would be emission methane emissions coming from the landfill site. So it would be not only odour but also greenhouse gas emissions and the court held that the environment agency was in breach of its statutory duty under the human rights act to protect right to life article 2 and the right to private family life article 8. These of course mirror the European convention on human rights and they said that there was a positive operational duty which required the environment agency to take action to implement public health advice as expressed in a risk assessment which assessed obviously the risk of this happening and they had to therefore design and apply and continue to design applied measures to reduce the emissions from the landfill. So we can see there that there can be a order in the nature mandamus to compel a government to actually enforce laws once made.

Now what about in general day-to-day decision making under these environmental laws? Well an interesting example is the Sharma litigation at federal level. So eight Australian children including Sharma claimed that the federal minister for the environment owed them a duty of care when she was exercising powers under the environment protection and biodiversity conservation act. That's the Commonwealth Act. To decide whether or not to approve an extension to a coal mine in northern New South Wales. So the court at first instance held that a reasonable person in the minister's position would foresee that the children will be exposed to a real risk of death or personal injury from the climate change induced events such as heat waves or bushfires. They held that the minister had direct control over this foreseeable risk and in the features of control responsibility and knowledge all supported the existence of a duty of care and they said that the children were vulnerable to how that duty of care was exercised. There was reasonable foreseeability and so ultimately the court found that they had an apprehended breach of the duty of care. Now the question what remedy the court declined to grant an injunction compelling the minister to exercise the duty in any particular way.

But I did make a declaration in these terms that there was a duty to take reasonable care and the exercise of those powers under the EPBC Act to avoid causing personal injury or death to children at the time rising from the emissions of carbon dioxide into the earth's atmosphere. Now that decision is being appealed and you probably have picked up that the minister did make a decision under the EPBC Act to grant the relevant approval under that act for the mine.

So where do we see the emerging cases? Well there is an increasing focus on the impacts of subsidies for fossil fuel companies as a driving economic factor behind greenhouse gas emissions. So we're seeing and increasing litigation targeting these subsidies and I’ve given an example there in the UK where there's been a challenge to the state-owned oil and gas authority's new strategy.

So let me come now to the private sector. My second main area. The litigation here is designed to influence corporate behaviour in relation to climate change and raise public awareness about the responsibility of major emitters. So a lot of the early litigation against in the private sector was against the carbon extractors, carbon emitters and you know the companies that sell for example fuel or they you know car manufacturers that use the fossil fuels. We see a lot of that in America those particular actions but what we're now seeing is actions which are trying to more directly influence corporate practice and try to establish corporate liability for past contributions to climate change. So we're seeing actions in relation to climate change risks how to manage those risks and to disclose the impact of those risks on business and what action they're taking to manage those actions also those risks. So here's a sort of a spectrum we see those cases that I’ve been talking about high emitting projects. So one of the actions in the land rhyme accord Gloucester, about the Gloucester coal mine would be in that category or against a higher meeting corporations. I’m going to come to this one, the Milieudefensie and Shell case in the Netherlands. We see actions against superannuation or pension funds the McVeigh case and in a sense the taking action against government to try and compel government to take action against the corporate sector. So the Urgenda case would fall into that category.

So let's come to the Milieudefensie case which came down earlier this year. So that was in a sense modelled on Urgenda it was again about the duty of care under Dutch law but this time by corporates rather than government and the plaintiffs, the rival NGOs said that Shell group of companies should reduce its greenhouse gas emissions by 45 so 2030 and to near zero by 2050 in line with the Paris agreement.

So the court found that the Shell did have an obligation to reduce its greenhouse gas emissions and that there was a duty of care under the Dutch civil code. That stand of care includes the need for the companies to take responsibility for scope 3 emissions. So they're the downstream emissions. So for fossil fuels it is the combustion of those fuels which could be done in other countries than the Netherlands and the court found that the Shell group is obliged to reduce the carbon dioxide emissions of the Shell group by 45 at the end of 2030 through the shell groups corporate policy and so they had to cause influence on all of the Shell group of companies to ensure that that occurred and I’ve set out a little in the slide there.

The next one we can see is this action against pension funds so superannuation funds they invest and where they invest makes a difference. So if they're investing in carbon extractors or carbon emitters, then the choice to invest or divest can drive behaviour in those companies. So one of the members of a superannuation fund, the retail employees superannuation fund, took action against the fund asking for I think in order that the fund disclose the risks to the portfolio and what they were doing about that risk. Ultimately the case settled because the REST said that it acknowledged that climate change is a material direct and current financial risk to the fund and it considers that it's important to actively identify and manage these issues.

So where else do we see our cases being brought? Well one is on this value chain climate litigation. So claimants are trying to hold companies responsible for acts and emissions in their value chains or supply chains and we're going to see an increase in that type of action and I’ve given one example of a recent case where NGOs are suing the French supermarket chain casino for its involvement in the cattle industry in Brazil and Colombia. They say of course that the there's clearing of rainforests and so this deforestation and that removes sinks carbon sinks but it also by the cattle methane emissions can be a source of greenhouse gas emissions. So trying to compel this particular supermarket chain to comply with obligations. So that's an example.

So let's come to my last one which is the human rights and climate litigation and what we see is been termed by some commentators as a rights term in climate litigation and you see on the bar chart there the increase in the number of cases which are raising human rights and so it's been a dramatic increase from about 2015 where we're starting to see those human rights cases coming and you know by 2018 that's where Urgenda Court of Appeal is really starting to take off and then we're seeing a lot more.

So I’m going to group these ones into five categories and I’ll deal with these as I go through. So the first is government in action for climate adaptation and I’m going to give the example of the Leghari case in Pakistan. So Pakistan had two national policies designed to deal with adaptation to climate change but the government although promulgating those policies failed to implement them. So one the petitioner Leghari who had farming background, he was a lawyer actually, but his family had a farming background that was suffering very badly by reason of climate change induced drought and other events and they said that this inaction of the national government in implementing the policies meant that there was no adaptation to climate change and this breaches fundamental rights not only under the constitution but also under international environmental principles and the court in Lahore agreed and said that the government's inaction in implementing the climate policies did breach his fundamental human rights and the court ordered the establishment ad hoc climate change commission to investigate how to implement the government's policies and to report back and then the court made orders compelling the government to take action to implement those measures that the ad hoc climate change commission had recommended.

So my second category is about due process and this goes to the Juliana case this is one of many cases that our children's trust have brought in the United States and they took action against the US government under the US constitution and of course one of the famous rights under the US constitution is the due process clause and that is that no person shall be deprived of life liberty or property without due process of law. Now normally we think of due processes flaws as involving processes the name suggests but there are a line of decisions which say that there are certain substantial rights which can't be removed no matter what process one goes through and this was the argument that was being put. That there was an implicit constitutional right to a stable climate and this is one case where there's lots and lots of interlocutory cases but there had been an action by the US government to dismiss the proceedings summarily that was declined by the district US district court judge I’m just going to put a little light here and said that there was this new fundamental right a right to a climate system capable of sustaining human life and that was implicit under the due process clause and said this is what the Judge Aiken had the right to climate system capable of sustaining human life is fundamental to a free and ordered society and so where a complaint alleges governmental action is affirmatively and substantively damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in a widespread damage to property, threaten human food sources and dramatically alter the planet's ecosystems it states a claim for a due process violation.

Now that I’ve just set out there there's been so many cases since that decision it's gone up and down to the Supreme Court back down again through the Court of Appeals and at the moment it's back before the district court for an amendment of the statement of claim.

Now this idea of a right to life encompassing a right to a healthy environment has also been litigated in other jurisdictions. I’ll just give some examples. One is in Colombia and so under the Colombian constitution there is a fundamental human rights and the action by youth plaintiffs was that the continuing deforestation of the Colombian amazon is and climate change is threatening these rights and so they sought orders that the government halt the deforestation the Colombian amazon and it was a complex way in which this was being said but not only are you removing the forest or deforestation which removes carbon sinks but that also changes the climate. It causes drying up of water it changes less the whole hydrological system is being changed and that has itself impacts on human rights.

So the Supreme Court of Columbia upheld that. They said the fundamental rights of life and health and minimum subsistence freedom and human dignity are linked to the environment in the ecosystem and they made orders across all government levels of government that they take action to reduce this deforestation in the amazon.

Come back to Ireland. An earlier case than the one that I have referred to in 2017. This was ultimately unsuccessful but we'll see that the court upheld or recognised a personal constitutional right to an environment under the Irish constitution.

In the 2020 case that I’ve referred to already again there was a recognition that there could be this right under the constitution to an environmental quality. You know a right to a healthy environment and so that's your last dot point there. So it doesn't rule out possibility constitutional rights and obligations may will be engaged in the environmental field in an appropriate case.

 

In Australia there has been an action or an action a complaint made under the to the UN human rights committee by Torres Strait Islanders. The action is against Australia for violating the petitioners fundamental human rights under the International Convention on Civil and Political Rights the allegation is that the government's failure to address climate change is impacting upon their rights. So their right to culture, their right to be free from arbitrary interference with privacy family at home, the right to life and those violations occur they say by failing to take sufficient action to mitigate greenhouse gas emissions and by inadequate funding for adaptation for coastal defence and resilience measures such as sea walls. So the state government has asked the UN human rights committee to dismiss the petition but that complaint is still pending before the committee.

So an action in Queensland. Queensland does have a human rights act 2019. The land court there determines applications under various environmental laws for example coal mine approvals and a group of NGOs and youth plaintiffs objected to a particular coal mining lease and environment authority proposed coal mine in the Galilee Basin on the basis that the decision to grant the mining lease in the private authority would not be compatible with human rights under the human rights act and so the coal mining company applied to strike out those objections based on the violation of human rights but the land court rejected that application and said that human rights considerations do apply to the land court in making its recommendations on applications for a mining lease and an environmental authority

So where do we see the emerging cases? Well a lot have been based on existing human rights but we're seeing an increasing trend to try and  build a standalone right to a stable climate. We saw that in the Juliana case and we can see that in this recent case in Brazil. A bit like the Colombian case, they're saying that the Brazilian government's failure to prevent deforestation and take action to mitigate and adapt to climate change is leading to a violation of human rights but more importantly a violation of an implicit fundamental right to a stable climate for present and future generations under the Brazilian constitution. So building on that Juliana and the Colombian case.

So that's my quick review. Hopefully that has shown you where we're seeing the cases. Where the trends are happening and so to bring it back together, we've got this increasing volume and diversity of climate litigation worldwide and they're falling into those three categories of government accountability, private sector accountability and human rights-based litigation so thank you for that.

Bob Carr: Chief Justice thank you very very much for that very comprehensive tour of the whole spectrum of legal contest over climate. You've highlighted the different grounds for action in the court systems. I say court systems because you've dealt with a range of jurisdictions. I expected you to touch on Holland and Germany in view of recent developments but to cover as well Colombia and Pakistan was not a detail I would have anticipated. It was a very full account of action across jurisdictions indeed. You've given us a lot to think about in terms of the application of due process arguments, the relevance of scope 3, the investment policies of superannuation funds, given the scale of investment funds in Australia that's an important area of argument and evaluation and I think something a lot of us hadn't considered earlier and that is the valuating or supply chain action. But the major theme to emerge was human rights what you called the rights turn in climate litigation in this field of legal development and the big idea that I take from this very stimulating presentation this evening is, the notion of a right to a climate system capable of sustaining human life being viewed now as a result of all of these developments in diverse court systems as an inescapable consideration for any charter of rights. For any bill of rights. The right to a climate system capable of sustaining human life. There's a lot to look forward including the outcome of an appeal decision in the Sharma case but also that application, that submission by Torres Strait Islanders to the human rights commission under the auspices of the United Nations. I know I speak for all our viewers in this imaginary great hall, that in the spirit of the chorus in Henry V I’ve asked people to imagine, when I say Chief Justice Brian Preston, our warmest thanks for the consideration you've given the subject in your presentation tonight. Thank you.

ENDS.