Climate litigation trends: three significant developments you need to know about

It has been an active 12 months in the climate change litigation space, both in Australia and internationally. The political and legal landscape is rapidly evolving and the need to keep pace with these developments is presenting companies with new strategic challenges.

In this update, we provide a summary of three recent key developments in climate change litigation in Australia and New Zealand.

Key takeaways

  1. A class action against the Commonwealth Government has been commenced on behalf of a group of Torres Strait Islander communities in relation to climate change impacts – Pabai Pabai & Anor v Commonwealth of Australia (VID622/2021) (Pabai Pabai).
  2. The appeal hearing for Sharma v The Minister for the Environment [2021] FCA 560 (Sharma) was heard in October. The Commonwealth made detailed arguments against the appropriateness of recognising a novel duty of care in the context of climate change, as well as with respect to distinguishing Scope 1 and 2 emissions from Scope 3 emissions.
  3. The New Zealand Court of Appeal in Smith v Fonterra Co-Operative Group Limited [2021] NZCA 552 (Fonterra), upheld the strike out of a claim for public nuisance, negligence and a proposed new tort described as “breach of duty” brought against seven New Zealand companies in relation to their contribution to climate change.

To read more, see our Climate Change Blog post.

Mark Smyth
Mark Smyth
Partner, Sydney
+61 2 9225 5440
Heidi Asten
Heidi Asten
Partner, Melbourne
+61 2 9288 1710
Timothy Sutt
Timothy Sutt
Partner, Sydney
+61 2 9225 5794
Maxine Byrne
Maxine Byrne
Solicitor, Sydney
+61 2 9225 5436

Georgia Roy
Georgia Roy
Solicitor, Sydney
+61 2 9225 4637

Jacob Lerner
Jacob Lerner
Paralegal, Sydney
+61 2 9225 5294

A CLIMATE CHANGE DUTY OF CARE: SHARMA V MINISTER FOR THE ENVIRONMENT

The recent decision of Justice Bromberg in Sharma v Minister for the Environment [2021] FCA 560 found that a novel duty of care is owed by the Minister for the Environment to Australian children who might suffer potential “catastrophic harm” from the climate change implications of approving the extension to the Vickery coal mine in New South Wales.

KEY TAKEAWAYS

  1. Bromberg J held that the potential harm to children was a mandatory relevant consideration that the Minister was required to take into account as a matter of administrative law in determining the approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
  2. Bromberg J also recognised a novel private law duty of care to protect Australian children from personal injury arising from the effects of climate change, noting that “by reference to contemporary social conditions and community standards, a reasonable Minister for the Environment ought to have the Children in contemplation when facilitating the emission of 100 Mt of CO2 into the Earth’s atmosphere.”

Click here to read full article

Key contacts

Mark Smith
Mark Smith
Partner, Sydney
+61 2 9225 5440
Timothy Stutt
Timothy Stutt
Partner, Sydney
+61 2 9225 5794
Heidi Aston
Heidi Aston
Partner, Melbourne
+61 3 9288 1710
Melanie Debenham
Melanie Debenham
Partner, Perth
+61 8 9211 7560
Peter Briggs
Peter Briggs
Partner, Sydney
+61 2 9225 5155
Anna Sutherland
Anna Sutherland
Managing Partner, Disputes, Australia
+61 2 9225 5280
Jay Leary
Jay Leary
Partner, Australia
+61 8 9211 7877
Christine Tran
Christine Tran
Partner, Sydney
+61 2 9225 5786