New wave of litigation expected to hit Australia’s eroding shoreline

Last week, the Federal Court of Australia embarked on what is predicted to be a landmark decision, in the matter of AGL v Greenpeace Australia Pacific (Greenpeace). The case involves allegations by AGL that Greenpeace infringed its trademark rights and copyright when it featured AGL’s logo in a recent ad campaign, designed to pressure the gas giant towards renewable energy and away from coal. Should the Court decide in Greenpeace’s favour, it will set a strong precedent that will allow individuals (notably, activist groups) to engage in the political critique of large corporations without the fear of being sued, under the guise of satire and parody.

On the first day of the trial, the Court heard that when Greenpeace referred to AGL as ‘Australia’s biggest climate polluter’, it was motivated by an ‘urgent need’ to protect Australia’s climate, and a desire to pressure AGL to close its coal burning power stations prior to the currently scheduled closure date of 2048.

The Greenpeace case unfolds in the wake of both local and international judicial decisions that highlight the consequences of climate change inaction. From disputes in intellectual property, corporations law and tort law, to constitutional and human rights matters, climate-related litigation has quickly infiltrated an array of legal disciplines, with the Court room serving as a battle ground of competing political agendas with respect to global warming, and who should be held accountable.

As large corporations and governments struggle to meet community expectations, it’s unsurprising that legal proceedings have become the new tool by which civilians and lobbyists seek to publicly instigate change.

A surge in recent activist litigation is thought to have been inspired by the 2019 decision of Urgenda Foundation v State of the Netherlands (Urgenda), in which the Supreme Court of the Netherlands upheld a previous decision of the Court of Appeal, ordering the Dutch government to do more to protect its citizens from climate change in accordance with its duties under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The case, which was brought on behalf of 886 Dutch citizens, is considered the first ever in which members of the community successfully established their government is legally obliged to prevent the harmful effects of climate change.

Following Urgenda, European Court rooms have been flooded with similar actions. Just last month, the district court of The Hague in the Netherlands ordered global oil and gas behemoth Royal Dutch Shell to reduce its 2019 carbon dioxide emission levels by 45% before 2030[1].

In September 2020, a group of Portuguese young people filed proceedings in the European Court of Human Rights against 33 countries, alleging that in failing to act against climate change, they had breached several Articles of the ECHR[2].

The list, internationally, goes on.

In Australia however, it’s the breakthrough Federal Court decision of Sharma v Minister for the Environment [2021] FCA 560 that’s expected to spark an influx of new litigation.

The Court in May found in favour of eight Australian high school students, who filed class action proceedings in September 2020 against Environment Minister Sussan Ley, in a bold attempt to stop her from approving a proposed expansion to the Vickery coal mine in northern New South Wales (Mine Expansion), under s130 and s133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

The students alleged that if Ms Ley were to approve the Mine Expansion, 33 million tonnes of coal would be extracted from the mine over the next 25 years, emitting 100 million tonnes of carbon dioxide into the earth’s atmosphere.

This, pleaded the students, was in breach of Ms Ley’s common law duty of care to protect Australia’s youth from the health impacts of climate change, pursuant to the law of negligence. As such, the students also sought an injunction to restrain the anticipated approval of the Mine Expansion.

Although the application for an injunction was ultimately dismissed, Justice Bromberg established that the Minister does indeed have a duty to take reasonable care not to cause the children personal injury when exercising her powers under the EPBC Act, to approve or not approve the Mine Expansion.

In finding that this novel duty of care exists, his Honour noted that that: “by reference to contemporary social conditions and community standards, a reasonable Minister for the Environment ought to have the Children in contemplation when facilitating the emission of 100 Mt of CO2 into the Earth’s atmosphere.”

The Court ultimately accepted the students’ position that it was reasonably foreseeable for a person in the position of the Minister that the risk of harm to Australian children would result from approving the Mine Expansion. It was further accepted that Ms Ley had control over this risk, as it would only manifest upon her deciding to approve the Extension Project.

Finally, his Honour highlighted how vulnerable the students were to the risk of that harm, and how powerless they were to avoid it. The Court restricted the novel duty of care to personal injury and death, observing that any broader duty could potentially likely distort the exercise of the Minister’s broad discretion under the EPBC Act.

Whilst it is not yet certain whether the Minister will approve or reject the Mine Expansion, the imposition of the new novel duty of care will significantly impact those seeking the Minister’s approval of new projects under the EPBC Act, as well under similar regimes.

The implementation of the novel duty of care by the Federal Court has not been without controversy, with some taking the view that his Honour, in delivering an impassioned judgment had let his personal policy preferences on climate change influence the decision, or alternatively, that it was not within the function of the judiciary to interfere with the decision making powers of the executive. Arguably, say many others, it is precisely the function of the judiciary to act as a check and balance on the decision making powers of Australia’s ministers.

What is clear from the Sharma judgment, the Greenpeace dispute and the host of international climate-related matters on foot across the planet, is that globally, communities want change – and they want it faster than governments are willing to provide it.

The Courtroom may be just the forum in which to restore confidence to those seeking to compel climate-change action before we encounter, as Justice Bromberg puts it, “the greatest inter-generational injustice ever inflicted by one generation of humans upon the next”.

Australian litigators can expect more climate-related legal proceedings in the very, very near future.

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Authored by:

Kelly Griffiths, Partner
Katie White, Lawyer

[1] Milieudefensie et al. v. Royal Dutch Shell plc

[2] Duarte Agostinho and Others v. Portugal and 32 Other States