If 2021 was ‘the year that was’ for climate litigation in Australia, then 2022 is ‘the year that remains to be seen’. The slowdown of new claims is not unexpected – there have been no real legislative developments encouraging new causes of action and the overturning of Justice Bromberg’s sensational first instance decision in Sharma (discussed below) has dented the confidence of litigants seeking redress through the courts. It may be that potential litigants are adopting a ‘wait and see’ approach, awaiting the substantive resolution of the trailblazing claims of 2021. But it is unlikely that society’s environmental conscience is calmed, and the coming years are set to deliver some landmark decisions as new and continuing cases trundle towards hearings.

Case developments

Protection of Torres Strait Islanders - Pabai Pabai & Anor v Commonwealth of Australia (VID622/2021)

Background: In this class action brought on behalf of all persons of Torres Strait Islander descent, Mr Pabai and Mr Kabai of Gudamalulgal in the Torres Strait claim that the Commonwealth Government has breached a duty of care allegedly owed to Torres Strait Islanders to take reasonable steps to protect them, their traditional way of life and the land and marine environment in and around the Torres Strait from the current and projected impacts of climate change.

Progress: The trial of this matter is currently planned to take place in two parts, with the first (dealing with the “lay” evidence) due to commence in June 2023, with expert evidence expected to address the current and projected impacts of climate change to follow. The applicants are currently in the process of preparing amended documents to clarify the “novel” allegations that they are making.

Notably, the Court has recognised the public interest surrounding this proceeding, and has made the Court documents publicly available. The Court has also recognised at this relatively early stage of the proceeding the very real and proximate threat of climate change - Justice Mortimer observed that “there is no denying the unremitting march of the sea onto the islands of the Torres Strait. The reality for the people of the Torres Strait is that they risk losing their way of life, their homes, their gardens, the resources of the sea on which they have always depended and the graves of their ancestors.”

Implication: This case raises interesting points about the vulnerability of First Nations people to the impact of climate change, particularly in respect of the loss of cultural practice through environmental degradation, which has not been previously considered by an Australian court.

Whilst Mr Pabai and Mr Kabai’s claim relies on similar duty of care principles that were asserted in Sharma (which we discuss further below), the alleged source of that duty in this case is different and so could result in a different outcome.

If a duty of care is established, governments could become more cautious about new project approvals, particularly in carbon-intensive industries. Whatever the result, judicial analysis of Australia’s treaty and international agreement obligations will be a useful guide to climate risk management for both policy makers and business.

Blade and shield - Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145

Background: Two landholders claimed the neighbouring Bald Hills wind farm committed the tort of nuisance by emitting excessive noise, which disturbed their sleep and reduced the value of their properties. The plaintiffs sought orders to restrain the operators of Bald Hills from emitting excessive noise and claimed damages for the loss of amenity and enjoyment of their land.

Outcome: The plaintiffs were awarded over $250,000 in damages and secured an injunction restraining Bald Hills from emitting excessive noise. The Court deferred the injunction for three months to avoid a complete shutdown of Bald Hills’ operations and to provide it with an opportunity to reduce noise emissions in another manner.

Implication: While limited to the regime under the Victorian Planning and Environment Act 1987 (Vic), this decision demonstrates that courts are concerned to balance the environmental benefits of wind farms (and other clean energy infrastructure) against private rights. Whilst it was found that Bald Hills failed to comply with its planning permit conditions, the Court found that even if it had, the noise emissions produced could still have been excessive – confirming that strict legislative compliance might not be a complete defence for wind farm operators.

Injunctions are undoubtedly commercially inconvenient and very costly, so private renewable energy operators ought to consider more than strict compliance with planning conditions, including relationship management with neighbours, and their social licenses to operate.

For a more detailed review of the decision, read our discussion and analysis in “’Windjunction’ granted against wind farm causing noise nuisance to neighbours”.

Minister for the Environment v Sharma [2022] FCAFC 35

Background: A group of eight Australian children, by a litigation representative, brought a claim of negligence against the Federal Minister for the Environment in relation to the approval of a proposed expansion of a coal mine. The children alleged the Minister owed a duty of care to take reasonable steps to protect them from personal injury and death caused by climate change.

Outcome: Justice Bromberg initially found that a duty of care was owed, and unsurprisingly the Minister appealed. The Full Court of the Federal Court upheld the appeal, finding that no duty of care was owed. The time for an appeal to the High Court of Australia has lapsed, and the plaintiffs have confirmed that they were not going to proceed with any special leave application, such that the case goes no further.

Implication: While no duty of care was established, this case might prove to be only the first in a line of litigation dealing with obligations owed by decision-makers and business entities. Most importantly, the decision shows judicial acceptance of climate change science. None of the evidence of climate change, or its harms, led by the plaintiff children was challenged by the Minister. Further, the Minister’s assertions of error on science-based risk in the primary judgment were rejected on appeal and so the plaintiff children could have cleared the first hurdle: agreement that climate change is real and harmful.

For a more detailed review of the primary and appeal decisions, read our discussion and analysis articles:

Overcharging on EVs?- Vanderstock & Davies v State of Victoria (M61/2021)

Background: Two electric vehicle (EV) owners have challenged the constitutional validity of a Victorian tax on electric vehicles. The tax (now 2.6c per kilometre) is recorded based on odometer readings submitted by vehicle owners. The EV owners claim that section 90 of the Constitution (which prevents States charging customs and excise duties) disentitles Victoria from levying such a charge.

Implication: The legal question of whether it is the States or the Commonwealth who are entitled to impose a “tax” of this nature is unlikely to generate broad community interest (although unsurprisingly, the states which have imposed a similar tax on EVs have intervened in support of Victoria, whereas the Commonwealth Attorney General has intervened in support of EV owners (and its revenue coffers)).

However, this case also raises an interesting discourse regarding governments’ need to balance the uptake of EV and other decarbonising initiatives, against replacing diminishing revenue streams from more carbon-intensive sectors (such as fossil fuels). That is particularly so in the face of a perceived hesitancy of the Australian community to fully embrace EVs due to financial disincentives to ownership and operation of those vehicles as compared to traditional combustion engine vehicles.

Coal mine challenge runs out of steam - KEPCO Bylong Australia v Independent Planning Commission & Anor [2021] NSWCA 216

Background: In 2019, the NSW Independent Planning Commission rejected KEPCO’s application to construct a coal mine based on inadequate plans for managing Scope 3 emissions and that the benefits and costs of a coal mine (where the coal would be exported) violated the principle of “intergenerational equity” – where the environmental cost that would be felt by future generations is considered against the immediate financial benefit of the proposal. In 2020, KEPCO unsuccessfully appealed to the NSW Land and Environment Court which found that the proposed development would be contrary to ecologically sustainable development. In 2021, the NSW Court of Appeal dismissed a further appeal commenced by KEPCO, finding the conditions attached to its original project would not satisfy the State Climate Change Policy.

Implications: While this decision is limited to projects in NSW, the Court of Appeal’s decision confirms that there is a positive requirement to address Scope 3 emissions in applications related to the Mining State Environmental Planning Policy.

Looking ahead

ACF v Woodside

In late June 2022, the Australian Conservation Foundation applied for an injunction to prevent the development of the Scarborough gas project operated by Woodside Energy on the basis that it had not obtained all necessary approvals from the Federal Minister for the Environment. The claim alleges that the Scarborough gas project also needs to be assessed according to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) EPBC Act due to its potential impact on the world heritage listed Great Barrier Reef and is not entitled to the exemptions that would allow it to rely on the approval process under the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA).

The Environmental Defender’s Office claims the Court will be asked for the first time to consider objective scientific evidence about the impact of offshore gas projects and their emissions on the Great Barrier Reef.

Greenwashing

There has been little progress in Australia’s first ‘greenwashing’ case and the first case globally to challenge the veracity of a company’s net zero targets – the Australasian Centre for Corporate Responsibility v Santos Limited.

However, Australia’s corporate regulator, ASIC, has recently issued guidance in relation to claims about sustainability-related products and the ACCC has taken a similar interest in climate related disclosures, naming consumer and fair-trading issues in relation to environmental claims and sustainability in its compliance and enforcement priorities for 2022/23.

For a more detailed review of ASIC’s guidance, read our discussion and analysis in “Summary of ASIC Guidance on ‘How to avoid greenwashing when offering or promoting sustainability-related products”.

Where to next for climate litigation in Australia?

It is unclear whether individuals, activists and shareholders alike will continue to seek redress through the courts with the same vigour as in recent years, particularly in circumstances where the new Federal Government has promised to take swift action on climate change. It is possible that a portion of the litigation commenced in the last 18 months was in response to, and in protest over, the Morrison Government’s position on climate change. However, it is unlikely that society’s evolving environmental conscience will sit and wait, and should the new Federal Government be slow to implement its climate policies, one can expect “climate activists” to pursue climate litigation with the same vigour as we have seen in the past.