Climate Change in the Australian Courts

In its 5th biennial “State of the Climate” Report 2018, the CSIRO and the Bureau of Meteorology’s key findings were:

  • Australia's climate has warmed just over 1 °C since 1910 leading to an increase in the frequency of extreme heat events.

  • Oceans around Australia have warmed by around 1 °C since 1910, contributing to longer and more frequent marine heatwaves.

  • Sea levels are rising around Australia, increasing the risk of inundation.

  • The oceans around Australia are acidifying (the pH is decreasing).

  • April to October rainfall has decreased in the southwest of Australia. Across the same region May–July rainfall has seen the largest decrease, by around 20 per cent since 1970.

  • There has been a decline of around 11 per cent in April–October rainfall in the southeast of Australia since the late 1990s.

  • Rainfall has increased across parts of northern Australia since the 1970s.

  • Streamflow has decreased across southern Australia. Streamflow has increased in northern Australia where rainfall has increased.

  • There has been a long-term increase in extreme fire weather, and in the length of the fire season, across large parts of Australia.

However, legislative developments in relation to climate change have varied, nationally and internationally, and judicial consideration has been limited in Australia.  The Australian carbon tax, introduced in July 2012, was subsequently repealed in 2014.  In Canada, the intersection between climate change and human rights was the subject of a 2004 case by the Canadian Inuit in the Inter-American Commission on Human Rights in which damages were sought as a result of global warming affecting 155,000 villagers.  Whilst the petition was rejected by the Commission, it did agree to convene a climate change and human rights hearing.

By contrast to Australia, in the United States climate change litigation has been ongoing for decades. In 2004 proceedings were commenced on behalf of 77 million people, 8 States and New York City.  The case involved a suit against five electricity companies under federal and state law seeking to abate global warming on the grounds of public nuisance.  In 2010 Judge Preska held that the case required the:

.. identification and balancing of economic, environmental, foreign policy, and national security interests, an initial policy determination of a kind clearly for non-justiciable discretion .. Thus, these actions present non-justiciable political questions that are consigned to the political branches, not the Judiciary.

On appeal, the Second Circuit Court of Appeals vacated the dismissal of the suit and remanded it back for further consideration and held that the case involved well-settled principles of tort and public nuisance law which would provide appropriate guidance for the district court and which it was competent to decide. The defendants then filed a certiorari petition in the United States Supreme Court and the Supreme Court held that the Clean Air Act and the environmental protection actions which it authorised “displace any common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants”.  The Supreme Court held that the Act provided a means to seek limits on carbon dioxide emissions from domestic power plants which was the same relief which the plaintiffs sought by invoking federal common law and held that there was “no room for a parallel track”.  The Court held further that if the plaintiffs were dissatisfied with the decision-making of the Environmental Protection Authority then they were entitled to seek review under federal law and to petition for certiorari.

Accordingly, the recent decision on 8 February 2019 - Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7 - of the NSW Land and Environment Court is indeed a landmark one.  The Chief Judge confirmed a decision of the NSW Planning Assessment Commission to refuse to grant approval for a new open-cut coal mine near Gloucester in the Hunter Valley, NSW, known as the “Rocky Hill Mine Project”. The grounds raised on appeal included climate change considerations.

The project was refused on planning, visual and social impacts but Judge Preston also held that:

the project's cumulative greenhouse gas emissions will contribute to the global total of GHG [greenhouse gas] concentrations in the atmosphere. The global total of GHG concentrations will affect the climate system and cause climate change impacts. The project's cumulative GHG emissions are therefore likely to contribute to the future changes to the climate system and the impacts of climate change.

The State of the Climate Report 2018 was cited in Judge Preston’s judgment and he concluded that:

An open-cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time.

A notice of intention to appeal the decision was lodged by Gloucester Resources on 5 March 2019. The outcome of the appeal, like the decision of Judge Preston to date, will have significant legal and environmental implications.  Such matters involve the assessment of complex issues of geology, geography, noise, dust, economic and social amenity impacts, together with indigenous culture, health and wellbeing implications and the balancing of cost and benefit analysis and climate change considerations. Whilst the case involved the application of the NSW environmental planning regime, often private law (tort, nuisance etc.), diverse State and Commonwealth legislation, human rights and corporate law (directors’ duties, CSR etc.) issues also arise:

See further Wilson, “Corporate Social Responsibility, the Business Judgment Rule & Human Rights in Australia - Warm Inner Glow or Warming the Globe?” (2012) 38 Monash University Law Review 148

Nigel Wilson