Image Description: Scott Morrison in parliament, holding a piece of coal. Barnaby Joyce is behind him with a surprised expression, with Malcolm Turnbull on the bottom-left corner. On the right side is an out of control bushfire.

 

By Christine Chen

 

When a group of young activists in the Netherlands took their government to court over climate change in 2013, nobody expected them to win. Indeed, ground-breaking cases, from the defeat of big tobacco to racial desegregation, had previously demonstrated the power of litigation to bring about social change. However, the chances for a successful climate change lawsuit against the state appeared slim—the field of climate change law was then only in its nascent stages, and courts had never encountered a case like it before. Many had simply hoped that the doomed case would serve as a martyr of sorts, and that its eventual failure would demonstrate just how much laws needed to change.

 

Yet, against the seemingly insurmountable odds, the activists unexpectedly won. The Hague District Court, after two years of litigation, ordered the Dutch Government to curb greenhouse gas emissions by 25 per cent within one year. “The lives, wellbeing and living circumstances of many people around the world, including in the Netherlands, are being threatened,” Kees Streefkerk, the chief justice, said of climate change in the historic decision. “The state must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change.” The decision was contested by the government, but ultimately upheld by the Supreme Court of the Netherlands at the end of 2019, which affirmed the District Court’s ruling as the first court order to ever direct an entire country to reduce its greenhouse gas emissions.

 

As news of the watershed moment spread, fellow activists became emboldened by the landmark court ruling; the Dutch case quickly became a fecund model for lawsuits pursued by other activists around the world. And while their arguments can be unconventional, some are making progress: in 2018, when twenty-five young people brought a lawsuit against the Colombian Government for failing to protect the Amazon rainforest, they, too, surprisingly won (the Colombian court held that deforestation violated the rights of both the activists, as well as the rainforest, and ordered the government to reduce its emissions to net-zero by 2020); in Peru, a farmer is suing a German energy corporation over its role in causing climate change.

 

There have also been mounting calls in Australia to bring a similarly-fashioned lawsuit against the Morrison Government—an online petition started in January 2020 has garnered close to 100,000 signatures on Change.org. “The government has ignored its own departments’ warnings and reports,” it reads. “The government has failed to increase its emissions targets, failed to increase the renewable energy target and failed the people of Australia.”

 

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Success: litigators and activists celebrate after the Supreme Court of the Netherlands upheld the landmark ruling to force the Dutch Government to cut greenhouse gas emissions.

 

When Scott Morrison was Australia’s Treasurer, he fondly brought a chunk of coal into parliament. “Don’t be scared of it,” he reassured the other members. “Don’t be afraid.” The bizarre occurrence portended a tenure as Prime Minister marked by the systematic dismissal and denial of the link between climate change and fossil-fuels—a self-destructive industry which Australia has become sorely reliant on; Morrison has derided calls to end coal mining as “reckless,” prioritising economic and financial interests over the environment; the LNP party has also opposed taxing carbon emissions or taking other significant steps to reduce them—even though the majority of Australians believe stronger action should be taken. To add insult to injury, during this summer’s disastrous bushfire season, Morrison infamously took a Hawaiian vacation as Australia burned.

 

But, while the Australian Government’s actions have indeed been deplorable—even more so than those of the Dutch Government before it was ordered to change—the prospects for a successful Australian lawsuit are still somewhat uncertain. The Dutch case comprised various legal arguments, including alleging a breach of duty of care per the negligence provisions of the Dutch Civil Code, as well as breaches of constitutional rights under the Dutch Constitution, of human rights under the European Convention on Human Rights, and of the Netherlands’ obligations under international and European climate change law. Australia, by contrast, does not have a bill of rights, nor any meaningful environmental protections contained within its Constitution. Subsequently, legal scholars have previously opined that a suit should be brought under the law tort of negligence instead—specifically, establishing a link between the Morrison Government’s actions and the damage or loss occurred.

 

However, when Australian courts have considered negligence claims as a result of bushfires in the past, judges have placed limits on the ability of citizens to take action against the state. For instance, in the case of Electro Optic Systems Pty Ltd v State of New South Wales, the state of NSW was sued after the plaintiff’s property, Mount Stromlo Observatory, was destroyed in the 2003 Canberra bushfires. The plaintiff alleged the state’s Rural Fire Service owed a duty of care and that its fire-fighting strategy was flawed. However, since the direct cause of the fire was a lightning strike, the Court of Appeal found the state did not owe a duty of care. Beyond bushfires, to establish that the government owes a duty of care to prevent climate change, and that the breach of its duty led to damage, is even more challenging; the very nature of climate change, as a problem with both complex temporal and spatial dimensions, means the relationship between defendant and plaintiff is blurred. Australian courts are therefore reluctant to link the government’s actions in sanctioning fossil-fuel usage, and emitting harmful greenhouse gases to the atmosphere as a whole, to the harm experienced by a plaintiff.

 

Nevertheless, momentum in Australia seems to be gathering. Just yesterday, a class action suit was filed in Australia’s Federal Court, with a 23-year-old Melbourne Law School student as head litigant. Unlike previous attempts under the tort of negligence, this new suit alleges that the government failed in its duties under the Corporations Act (2001) and ASIC Act (2001) to disclose the impact of climate change on the value of government bonds held by investors. By using the ostensibly unrelated issue of bonds as a means for the government to acknowledge the effect of climate change, the innovative argument, if successful, could usher in a significant upheaval of Australia’s environmental policy.

 

Developments in climate change science are also continually improving the basis on which claims could be brought against the government: the ability to attribute climate change impacts to greenhouse gas emissions, and to calculate comparative contributions to global emissions is growing; the body of international and domestic policy instruments acknowledging the threats of climate change, including the Paris Agreement, is also expanding.

 

After a disastrous bushfire season, it is clear that if any activists should take legal action on climate change, it should be those in Australia. Even if the lawsuits are filed, only to eventually be struck down by courts, the burgeoning movement of climate change litigation represents a new front of environmental activism that neither the courts, nor government, will be able to ignore forever. By taking their governments to court, citizens are forcing their hands into pursuing stronger, more decisive measures to curb their emissions, whilst also seeking to be paid damages as recompense for the costs of global warming’s increasingly tangible impacts.

 

While the number of successful lawsuits is still outnumbered by failures—the Dutch and Columbian cases stand as the few exceptions among the rest—it is expected that as attitudes of society (and judges, by extension) evolve, these odds will change, too.