Climate Litigation

Australian Network of Environmental Defenders Offices Inc is a national network of Community Legal Centres that specialise in public interest environmental law. There are offices in each State and Territory.

City of Los Angeles v NHTSA 912 F3d 478 (DC Cir 1990).

Greenpeace Australia Ltd v Redbank Power Company (1994) 84 LGERA 143.

Preston Brian , ‘The Role of Public Interest Environmental Litigation’ (2006) 23 Environmental and Planning Law Journal 337, 347.

Smith Joseph Shearman David , Climate Change Litigation: Analysing the Law, Scientific Evidence & Impacts on the Environment, Health and Property (2006) 12.

Taylor Lenore , ‘Household burden focus of carbon tax scheme’, The Age (Melbourne), 5 March 2011; Morton Adam , ‘Carbon tax countdown to July 2012 start date’, The Age (Melbourne), 25 February 2011.

(2006) 232 ALR 510.

Costs estimates were provided by the three Respondents on a party/party basis as opposed to taxed costs. Actual legal costs were higher.

See decisions such as Oshlack v Richmond River Council (1998) 193 CLR 72; Donnelly v Delta Gold Pty Ltd [2002] NSWLEC 44; Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365, Kennedy v Director-General of the Department of Environment and Conservation [2007] NSWLEC 271; Minister for Planning v Walker (No 2) [2008] NSWCA 334; Blue Wedges Inc v Minister for Environment Heritage and the Arts (2008) 165 FCR 211. Costs were apportioned in Margarula v Minister for Environment & Heritage (1999) 92 FCR 35 at [2]; Lansen v Minister for the Environment & Heritage (No 3) (2008) 162 LGERA 258; Wilderness Society Inc v Malcolm Turnbull (2008) 101 ALD 1.

Greenpeace Australia Ltd v Redbank Power Co (1994) 84 LGERA 143 and Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 (‘ACF v Latrobe’) are exceptions to this.

(2006) 232 ALR 510.

(2007) 243 ALR784 (‘Anvil Hill’).

Eg, Wildlife Preservation Society of Queensland, Anvil Hill and Gray v Macquarie Generation [2010] NSWLEC 34 all went ahead because solicitors and counsel acted pro bono or for significantly discounted fees.

See, eg, s 49 of the Judicial Review Act 1991 (Qld) and Land and Environment Court Rules 2007 (NSW) r 4.2.

Durrant Nicola , ‘Tortious Liability for Greenhouse Gas Emissions? Climate Change, Causation and Public Policy Considerations’, (2007) 7 (2) QUT Law and Justice Journal, 404; Cashman Peter Abbs Ross , ‘Liability in Tort for Damage Arising From Human-Induced Climate Change’ in Lyster Rosemary (ed), In the Wilds of Climate Law (2010).

Redbank (1994) 84 LGERA 143. See also: ACF v Latrobe (2004) 140 LGERA 100; Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment & Heritage (2006) 232 ALR 510; Gray v Minister for Planning (2006) 152 LGERA 258; Anvil Hill (2007) 243 ALR784; Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33 where merits review was used to object to a mining lease before the Land and Resources Tribunal.

(2004) 140 LGERA 100.

Section 4 Environmental Effects Act 1978.

(2006) 232 ALR 510.

Bowen Basin Case (2006) 232 ALR 510, 55.

(2007) 243 ALR 784.

(2006) 152 LGERA 258.

Encouragement of ESD principles is one of the objects of the Environmental Planning and Assessment Act 1979 (NSW.

Ibid 109. See the comments by Court of Appeal in Minister for Planning v Walker (2008) 161 LGERA 423 (24 September 2008).

[2007] NSWLEC 837.

Minister for Planning v Walker (2008) 161 LGERA 423 (‘Walker’).

Namely , Clause 8B of the Environmental Planning and Assessment Regulation 2000 (NSW).

Minister for Planning v Walker (2008) 161 LGERA 423, 56.

(2009) 167 LGERA 13.

Ibid.

(2007) LGERA 349.

Decision of the Court is reserved at the time of writing.

As per Minister for Planning v Walker (2008) 161 LGERA 423 (24 September 2008), discussed above.

Tribunals that deal with merits review include the Planning and Environment List in VCAT, Land Court in Queensland and Class 1 of the Land and Environment Court in NSW.

(1994) 86 LGERA 143.

The precautionary principle provides that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

[2007] QLRT 33.

See, eg, Taralga Landscape Guardians v Minister for Planning [2007] NSWLEC 59, Acciona Energy Oceania Pty Ltd v Corangamite SC [2008] VCAT 1617 (11 August 2008) and King v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Ltd v Minister for Planning [2010] NSWLEC 1102 (7 May 2010).

[2008] VCAT 1545.

Cf Santos v East Gippsland SC [2008] VCAT 1658 (14 August 2008).

Alanvale Pty Ltd v Southern Rural Waters [2010] VCAT 480 (21 April 2010).

Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2008] SASC 57 at [17] & [22].

[2007] QCA 200.

Printz v Glenelg SC [2010] VCAT 1975 (10 December 2010).

Gray v Macquarie Generation [2010] NSWLEC 34.

Note, in some jurisdictions such as SA and Victoria, legislation has been passed facilitating the regulation of greenhouse gas emissions from industry. If successful this case will be important in jurisdictions without such regulation.

See Physicians for Social Responsibility and Earthjustice, ‘Coal Ash: The toxic threat to our health and environment’ <earthjustice.org/sites/default/files/files/CoalAsh_Earthjustice.pdf> at 5 March 2011.

ACCC, ‘Solar panel retailers amend claims on discounts and electricity savings’ (Media Release, 2 August 2010) <accc.gov.au/content/index.phtml/itemId/940615> at 5 March 2011.

ACCC, ‘Goodyear Tyres apologises, offers compensation for unsubstantiated environmental claims’ (Media Release, 26 June 2008) <accc.gov.au/content/index.phtml/itemId/833219/fromItemId/810627> at 5 March 2011.

See also Australian Competition and Consumer Commission v GM Holden Ltd (ACN 006 893 232) [2008] FCA 1428 (18 September 2008).

Other recent ACCC investigations of carbon claims involve claims by De Longhi, V8 SuperCars, Energy Australia, Prime Carbon and Global Green.

Walker Pam , ‘Hazel Fights On’, Alternative Media Group, <altmedia.net.au/hazel-fights-on/16928> at 5 March 2011.

See Kingsnorth trial day six: The summing up (2008) Greenpeace UK <greenpeace.org.uk/blog/climate/kingsnorth-trial-day-six-20080908> at 5 March 2011.

Ibid.

See Unreported Decision of the Local Court, <edo.org.au/edonsw/site/casework_key_past.php#tomago> at 7 March 2011.

McCarthy James . (eds), Climate Change 2001: Impacts, Adaptation and Vulnerability <grida.no/climate/ipcc_tar/wg2/index.htm> at 5 March 2011; Byrne Marc Iljadica Marta , There goes the neighbourhood: Human rights and climate law, Uniya Occasional Paper, no 12 (2007) <uniya.org/talks/byrne_may07-op1.html> at 5 March 2011.

ANEDO, Submission to the National Human Rights Consultation, 7 <edo.org.au/policy/090615humanrights.pdf> at 5 March 2011.

Inuit Circumpolar Conference, Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (7 December 2005) <earthjustice.org/library/legal_docs/petition-to-the-inter-american-commission-on-human-rights-on-behalf-of-the-inuit-circumpolar-conference.pdf> at 5 March 2011.

In particular, the petition argued the US had violated a number of rights set out in the American Declaration of the Rights and Duties of Man, ICCPR and ICESCR.

Note 37 at 5–6.

Inuit Circumpolar Conference, above n 58, 4 and Duggin Gillian Ruddock Kirsty , ‘Climate change, coal and human rights’ (2009) 18(2) Human Rights Defender, 5.

See, eg, the Victorian Climate Change Act 2010, due to come in to force July 2011, and the federal government's election commitment to establish emissions standards for new power stations. For more details see Department of Resources, Energy and Tourism, ‘Cleaner Future for Power Stations’, <ret.gov.au/energy/sustainbility_and_climate_change/domestic_climate_change/cfps/Pages/a-cleaner-future-for-power-stations.aspx> at 7 March 2011.