Climate Litigation in Australia

Individuals hold fossil fuel emitters accountable in court, seeking transparency and climate-friendly agenda. Cases involve misleading investors and duty of care.

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It has been a rough year. Humanity continues to accelerate complete collapse of our eco system and we are edging closer to the point of no return. Most recently, coal and manufacturing industry leaders agreed to “phase down coal,” instead of to “phase out coal,” in a paltry attempt to address climate change by reducing green gas emissions.

A worrying trend of “too little, too late,” has emerged within Big Coal and other fossil fuel beneficiaries. It appears that, to them, the threat of losing our planet carries less weight than the cost of transitioning their money making to sustainable power sources

Thankfully, the passionate individuals below are doing their best to hold those who finance and regulate fossil fuel emitters to account through the courts.

O’Donnell v Commonwealth and Ors

In a world-first legal case filed in July 2020, Katta O’Donnell, a trailblazing university student in Melbourne, sought a declaration that the Commonwealth of Australia had misled and deceived investors for the duration of the class period by not disclosing climate change risks in bond issue documents and on the website of the Australian Office of Financial Management, on behalf of a class of retail bondholders. This is the first, and only, legal action in the world that seeks to hold a sovereign nation accountable for not disclosing the risks of climate change to sovereign bond investors.

O’Donnell seeks to represent both holders of and investors in Exchange-traded Australian Government Bonds who have the same interest in the proceeding. Ms O’Donnell seeks a declaration that the Commonwealth of Australia, since 7 July 2020, up until the present, is misleading and deceiving investors by not disclosing climate change risks in bond issue documents. She also seeks an injunction to restrain or prohibit behaviour that would result in ongoing misconduct.

The class action was filed on 22 July 2020 and notably survived to a failed attempt by the Commonwealth solicitors to strike out the claim.

What happens next?

The Commonwealth is to file its defence by 16 December 2021. 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.

Essentially, we are asking for transparency and honesty from our government regarding the costs of an Australian transposition to an environmentally friendly economy. Surely, if successful, this would enforce the prioritisation of a genuinely climate friendly agenda upon those in power.

Michael Burger, Executive Director of the Sabin Centre for Climate Change Law at Columbia University, stated in the Financial Times: “This case, if successful, could fundamentally alter the way national governments and corporations approach climate-related financial disclosures.”

Australian teenagers’ climate change class action case

A group of eight young Australians argued that the Federal Environment Minister owed them a duty of care to minimise climate change and on this basis applied for an injunction to be granted to stop the Minister from approving Whitehaven’s extension to its Vickery coal mine in NSW.

In a landmark decision that will impact any future project proposing to expand Australia’s production of fossil fuels, Federal Court Justice Mordecai Bromberg said that when exercising powers under the EPBC Act, the environment minister had a “duty to take reasonable care” to “avoid causing personal injury or death” to Australians under 18 years of age that arose “from emissions of carbon dioxide into the Earth’s atmosphere.”

Justice Bromberg found that the Federal Environment Minister has a duty to take reasonable care to avoid causing Australian children personal injury or death while determining whether to approve the project. Whilst his Honour dismissed the application for an injunction on technical grounds, legal experts say the comments by his Honour give room for future climate change-based litigation.

His Honour characterised the harm of climate change as “the greatest intergenerational injustice ever inflicted by one generation of humans upon the next.”

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