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Can legal action force governments and businesses to respond to climate change?

By Jacqueline Peel, Friday February 14, 2020 - 09:33 EDT
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Australia's devastating summer bushfires fit scientific predictions for how climate change might affect the weather. - ABC licensed

Australia's devastating summer bushfires, and now flooding rains, fit with scientific predictions for .

For many in the community this extreme weather highlights the need for a political response, yet more and more people believe governments and companies aren't doing enough to combat the changing climate.

Can the courts provide a solution?

Legal challenges related to climate change are a fast-growing trend.

A handful of cases in the mid-2000s has exploded into worldwide in 2019.

This litigation has been driven by the increasing impact of climate change on people's daily lives, alongside the perception that governments and companies are not acting quickly enough to address the problem.

Australia has been a , with only the US having more climate-related lawsuits.

Many climate cases coming before courts in Australia have involved challenges to big coal mining projects, like the .

Others have argued that — for example, from sea-level rise — should proactively take those effects into account.

How can the law make an impact?

A handful of cases have also been brought directly against companies.

An example was the suit brought in 2017 by shareholder .

Abrahams challenged the adequacy of the bank's disclosures about climate risk to its business, as well as its proposed financing of the Adani coal mine. The case did not proceed to a full hearing, but after it was filed CBA announced it .

In subsequent , the bank has also upped its game in highlighting the extent of its climate risk exposure.

Despite these court actions, well-respected make clear that governments are falling well short of what's needed to keep global temperature rises within safe limits.

At the same time, influential private sector institutions, from the to the (the world bank for central banks) have warned that climate change poses significant financial and environmental risks if we continue down the path of a business as usual carbon-based economy.

Who will be held to account?

In response, a trend has emerged in climate change litigation worldwide: legal challenges seeking to hold governments and fossil fuel companies directly accountable for climate change-related harms.

And we are now beginning to see some outcomes in these cases.

In the Netherlands, just before Christmas last year, the nation's most senior court delivered a in the high profile Urgenda case.

Following a challenge by environmental group (the name is a contraction of "urgent" and "agenda") the Dutch Supreme Court found that the government's 2020 target for greenhouse emissions reduction was inadequate to protect Dutch citizens from climate change harms.

It ordered the Dutch government to increase its 2020 target to align with the levels of emissions reduction recommended by international climate science bodies.

Just a few weeks earlier, the Commission of Human Rights in the Philippines issued another , concluding that the world's largest fossil fuel companies — known as carbon majors — could legally be held liable for their contributions to climate change. These decisions could pave the way for a against governments and big corporate polluters.

All the signs in 2020 are that climate change litigation is here to stay and these cases are likely to grow in number and profile over the next few years.

What's happening in Australia?

In Australia, two closely watched ongoing climate cases are a brought by Torres Strait Island communities against the Australian Government, alleging that the Government's inadequate climate policies violate islanders' human rights, and ongoing litigation by 24-year old Brisbane-based council worker against his super fund, REST, over its failure to say how it is managing climate risk in its investment portfolio.

Even before these claims are ruled on they are already having tangible effects.

Late in December 2019, the Australian Government announced a for the Torres Strait Islands to construct protective seawalls.

And in light of the filing of cases such as the REST lawsuit, which has , regulators like the are warning superfunds, banks and insurers to expect greater scrutiny of their climate risk management.

How much can the courts really achieve?

Courts are not a panacea, though, for the ills of climate change inaction.

They are limited to dealing with the cases that are brought before them and can't directly make climate policy.

Courts are followers, not leaders, of broader social movements.

Nonetheless, in Australia and around the world, courts are showing that they can be an active player in shaping how the law applies to climate change.

As the New Zealand Court of Appeal put it in a case brought by law student, Sarah Thompson, , "courts have recognised the significance of the [climate] issue for the planet and its inhabitants" and "have held they have a proper role to play in Government decision making on this topic".

Jacqueline Peel is a professor at the Melbourne Law School, University of Melbourne.


© ABC 2020

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