What triggered Alan Schwartz’s drive for climate litigation

Businessman and philanthropist Alan Schwartz believes the best way to combat political spin on climate change is to use the court system.

Entrepreneur turned philanthropist and climate activist Alan Schwartz is taking the federal government to court.

Late last year and into 2021, as US courts tore up lawsuits brought by Donald Trump over the “Big Lie” that Joe Biden had grabbed power in a stolen election, an idea suddenly dawned on business identity and philanthropist Alan Schwartz.

Despairing at politicians spinning the lie that they were doing enough to prevent devastating ­climate change, Schwartz decided that the best solution was to bring in an independent arbiter – the court system.

“When Trump lost 60 out of 61 cases, and the only case he won was procedural, it reminded me that the judiciary was a different forum altogether,” he tells The Weekend Australian.

“When good politicians debate an issue, the general population scratches its head and says: ‘Well, it’s one person’s word against another’, and the outcome is uncertainty. The courts system is different: it respects facts, evidence and data and is not affected by politics, money or influence.”

In the very same week that Scott Morrison finally confirmed he would take a plan for net-zero carbon emissions by 2050 to the COP26 climate summit in Glasgow, the outcome of Schwartz’s private musings became public.

The Melbourne businessman revealed he had become a seed donor to the first climate-change class action brought against the federal government.

In Federal Court documents, two Torres Strait Islanders, Paul Kabai and Pabai Pabai, allege that the commonwealth has breached its duty of care, based on the law of negligence, the Torres Strait Treaty, and Native Title.

The closest legal precedent is the Sharma case in the same court, which found last May that the Environment Minister Sussan Ley, owed a duty of care to avoid causing injury to young people while exercising her powers to approve a new coal project.

Norton Rose Fulbright litigation partner Tamlyn Mills says the latest case takes Australian law into “uncharted waters” because it involves a much wider remit of powers. “It raises novel issues around the duty of care, the content of the duty and the issue of causation,” Mills says.

Kabai says his ancestors have lived for more than 65,000 years on the islands, but the government’s failure to prevent the climate crisis means the land could be flooded, the soils ruined by salt, and communities cast aside as ­climate refugees.

The crux of the case, outlined in a 36-page Notice of Filing by class action law firm Phi Finney McDonald, is that the commonwealth – in 2015 and without regard to the “best available science” – adopted a carbon reduction target of 26-28 per cent below 2005 levels by 2030.

While there is no “safe” level of global temperature increase, the filing says the international scientific consensus is that holding the long-term increase to 1.5C will ­prevent many of the severe effects of climate change.

Despite this, the 2030 target falls below the lower end of the emissions range which the Climate Change Authority advised was appropriate for limiting the global temperature increase to 3C.

Further, the target uses a baseline year of 2005, when emissions were “substantially higher” than the 2000 baseline year used to ­determine the emissions range.

That’s the case in a nutshell, and Schwartz has a ready answer to the question of what success would look like.

“I haven’t practised law for over 40 years, but my understanding is that the government would be found to have a duty of care, it ­failed to meet its duty of care, it was negligent, and it should fix the situation,” he says.

“The court can’t dictate policy to the government, so it’s not going to tell the government what to do. But the government will have to do more, and it will have to decide what ‘more’ actually is, until the court is satisfied that it is meeting its duty of care.”

While Morrison landed a commitment for net-zero carbon emissions by 2050 in the lead-up to Glasgow, the real focus at the conference has been 2030.

The Prime Minister tried to blunt international criticism that Australia lacked climate ambition by using his set-piece address to stress that the nation would probably beat its 2030 target, with emissions projected to fall by 35 per cent by 2030 – “far exceeding our Paris commitment”.

However, a UN report released days before Glasgow began said the world had to halve emissions by 2030 and then reach net-zero by 2050 if it is to cap global warming at 1.5C and avoid the worst ­effects of climate change.

The report said the planet was currently headed towards a 2.7C temperature increase this century.

Morrison said before Glasgow his net-zero plan would be done the “Australian Way”, through technology and not taxes, with a $20bn billion investment in low-emissions technology to unlock at least $80bn in private and public investment.

The “technology not taxes” mantra gets under Schwartz’s skin, as does the government’s claim that solar and wind aren’t deserving of public investment because they’re already “established”.

“Technology not taxes is an ­absurd three-word slogan because we all know technology is important and nobody likes taxes,” he says. “It’s also misleading because if you spend enough subsidising technology – which they claim to be doing – you have to fund it through taxes,” he says.

“And if you look at history, most of the inventions and technology have been carbon-intensive because carbon emissions were free. Now, suddenly, without any policy changes, and with carbon emissions remaining free, they expect business to miraculously start thinking about technologies that reduce carbon.”

Schwartz is strongly in favour of a price on carbon to send the right market signals and spur innovation. He is agitated that a group of “clever people” in Canberra, who have never spent a day of their working lives in a business, somehow get to choose the five most prospective emission-­reduction technologies.

Each of these technologies has some merit but none of them is likely to be the main lever because innovations such as carbon capture and sequestration are years away from scalable commercial use when the emissions-reduction imperative is immediate.

Also, the decision to overlook solar and wind because they are established technologies displays a “level of ignorance that is beyond belief”. “They’d be far better off supporting a rapid rollout of solar, stabilising the grid, supporting ­batteries, supporting wind,” Schwartz says. “This is our Kodak moment as a country: Kodak clung to film and was wiped out by digital; we are at risk of clinging to coal and gas and missing out on immense opportunities created by the transition to new energy.

“What we’re not seeing … is that there are mining opportunities suitable to a low-carbon world and we all know what they are – lithium and so on. We have more space per capita than any other country for solar, and we’ve got minerals which could be processed instead of shipping them raw – it’s the greatest opportunity ever.”

Schwartz, at heart, is an optimist. He believes the monumental challenge posed by the warming planet will be resolved; the question is how much damage and suffering will happen along the way.

The choices are stark: act now, or face the likelihood of a heavy global death toll, the permanent loss of treasures like the Great Barrier Reef, and certain parts of the world becoming uninhabitable.

“The extent of the damage is the unknowable thing, which is why I feel, personally, so agitated about doing everything I can to contribute so we don’t get into a situation of complete despair, where people lose their sense of what is right and what is wrong because they’ve become desperate,” Schwartz says.

“We have to work as hard as we can to … show a vision of the future that’s better before things get really shitty.”