As Australia’s climate policy disappoints, hope is found in court

For the many Australians deeply concerned about the growing climate emergency, it’s been a tough year. As nations like the United States and the United Kingdom have pledged to significantly reduce greenhouse gas emissions, Australia continues to be a climate pariah – refusing to commit to more ambitious targets despite being one of the world’s biggest carbon per capita emitters and the third largest exporter of fossil fuels.

Instead, the Morrison government has continued to actively support the expansion of fossil fuel industries at the expense of renewables.

Prime Minister Scott Morrison.Credit: Alex Ellinghausen

In May, the federal resources minister, Keith Pitt, blocked public funding for a new wind farm and battery green energy hub in Queensland. Then in July, he approved a $175 million loan of public money to finance a new coal mine in the state that will extract 15 million tons a year.

Australia’s fossil fuel companies also still benefit from significant tax breaks, with 59 fossil fuel companies paying no tax in 2018 -19.

Where Australia’s political leaders are failing to meet their human rights obligations to address climate change by significantly reducing greenhouse gas emissions, passionate Australians are doing their best to hold fossil fuel emitters, as well as those who finance or regulate them, to account through the country’s courts. In many cases, young people are leading the way.

After the United States, Australia has the highest number of climate change litigation cases in the world.

Australians are doing their best to hold fossil fuel emitters, as well as those who finance or regulate them, to account.Credit: Janie Barrett

In May 2020, in an Australian legal first, a youth environment group called Youth Verdict challenged a proposed mega-coal mine in Queensland on the grounds that it infringed on their human rights because of its contribution to climate change. Youth Verdict argues the mine will contribute to catastrophic climate change and increase the risk of bushfires, drought, floods, heatwaves and cyclones.

They are basing their argument on new protections provided under the state’s Human Rights Act, which came into effect in January 2020, the first time a human rights argument has been used in a climate change case in Australia. A hearing date for the case has been set for February 2022.

In a world-first legal case filed in July 2020, a university student in Melbourne accused the Australian government of misleading investors in sovereign bonds by failing to disclose the financial risk caused by the climate crisis. If successful, the claim could compel the government to disclose how climate change might affect the nation’s economic growth or the value of the Australian dollar. The case is awaiting judgment.

In a landmark decision in May, the Federal Court of Australia found that Environment Minister Sussan Ley had a “duty of care” to protect children living in Australia from personal injury or death resulting from climate change. If not overturned, legal experts say the judgment could “constrain the ability of both government and private entities to undertake projects that contribute to net carbon emissions”.

Environment Minister Sussan Ley.Credit: Alex Ellinghausen

The Environment Minister is appealing the decision, with the appeal to be heard on October 18.

In another major ruling in August, a NSW court ordered the state’s Environmental Protection Authority take steps to safeguard against climate change, requiring the authority to “develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change”.

The case was brought by the Environmental Defenders Office, a non-governmental legal service organisation, on behalf of survivors of the devastating 2019-20 bushfires. The state’s environment minister says he won’t appeal the ruling.

In late August, the Environmental Defenders Office lodged a new lawsuit against the oil and gas giant Santos, on behalf of the Australasian Centre for Corporate Responsibility (ACCR), alleging that Santos breached consumer and corporate laws by claiming to produce clean energy and have a pathway to net zero emissions.

The ACCR says the oil and gas company engaged in misleading or deceptive conduct by telling shareholders in its 2020 annual report that it produced “clean fuel” and provided “clean energy”.

On September 2, news emerged that a Commonwealth Bank investor was suing the lender, demanding to see internal documents on its decisions to finance fossil fuel projects to ensure it has complied with its own environmental framework.

And just this past week, there were two more significant climate litigation developments. In NSW, the Court of Appeal upheld the decision to refuse a coal mine in the Bylong valley, north-west of Sydney. The state’s Independent Planning Commission had dismissed the plan for the 6.5 million tonne-a-year mine two years ago, and a previous court appeal was also rejected in part because of the climate change impacts of digging up the fossil fuel.

Meanwhile in Melbourne, a High Court legal challenge was launched against the state of Victoria, arguing it lacks the constitutional power to tax electric car drivers with a road user charge.

The recent United Nations Intergovernmental Panel on Climate Change report demonstrates the dire risks to our planet if urgent steps are not taken to reduce carbon emissions.

The climate crisis has become a human rights crisis, and the continual denial and inaction by successive governments in Australia will not go unchallenged.

Scott Morrison should keep this in mind when he travels to Washington later this week, for talks with US President Joe Biden, after the White House confirmed that the climate crisis will be on the agenda.

Federal and state governments, regulatory bodies and corporate actors have been put on notice. If they don’t take steps to mitigate climate change, they too could end up in Australia’s courts.

Sophie McNeill is the Australia researcher at Human Rights Watch.