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Climate Change Litigation and Human Rights

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Abstract

Climate change litigation and jurisprudence, from a slow start in the years before 2000 – when there had been a mere eight specific climate change litigation cases filed globally – rose to 338 cases between 2001 and 2010, reaching 1186 cases between 2011 and 2020. In early 2021, the United States leads in cumulative volume with 1308 cases; Australia ranks second globally with 115 cumulative cases. This chapter outlines the major developments in such litigation, with a particular focus on the role of human rights instruments. It then briefly examines changes in the interpretation of corporate law in respect to climate change. Taken together, there is growing momentum in a search by civil society for legal remedies given the profound seriousness of climate change and the abject disappointment of policy responses.

In October 2021, after this chapter was completed, the Human Rights Council of the United Nations voted to recognise a new human right to a “safe, clean, healthy and sustainable environment”.

Parts of this chapter reflect the author’s article ‘Environmental and Planning Law in the Age of Human Rights and Climate Change’ (2019) 3 Environmental and Planning Law Journal 181 but have been adapted and updated.

Justice of the High Court of Australia (1996–2009); President of the NSW Court of Appeal (1984–96); Member of the Group of Experts in International Law, Human Rights and Environmental Law that adopted the Oslo Principles on Climate Change Obligations, The Hague, Netherlands (2015) (‘Expert Group’). The author acknowledges the assistance of Sean Ryan in the preparation of this chapter.

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Notes

  1. 1.

    A comprehensive collection of sources, cases and analyses can be found in Donald K. Anton, Jonathan I. Charney, Philippe Sands, Thomas J Schoenbaum and Michael J. Young (eds.) International Environmental Law: Cases, Materials, Problems, LexisNexis, Newark, 2007, 1244–5.

  2. 2.

    Ripple et al. (2019) [https://academic.oup.com/bioscience/article/70/1/8/5610806]; the UN secretary-general has called on all countries to declare a climate emergency: https://www.theguardian.com/environment/2020/dec/12/un-secretary-general-all-countries-declare-climate-emergencies-antonio-guterres-climate-ambition-summit

  3. 3.

    This chapter is fundamentally about real and potential litigation in courts and tribunals to invoke the deep principles of law and universal human rights so as to contribute to reducing rapidly the perils of climate change (Kirby MD (2019) Multilateralism, Pushback, and Prospects for Global Engagement? Indiana J Legal Studies 27).

  4. 4.

    Kirby MD (2020) Municipal Courts and the international Interpretive Principle: Al-Kateb v Godwin (2004) University of New South Wales Law Journal 1, referring to Al-Kateb v Godwin (2004 219 CLR 562; [2004] HCA 37.

  5. 5.

    Charney J (1993) Universal International Law. American J Int’l Law 87:529–543; Higgins R (1994) Problems and Process: International Law and How We Use It. Oxford University Press, Oxford, England, p 205–206 (1994), Anton, above n.1 p 305.

  6. 6.

    Intergovernmental Panel on Climate Change, 1990, First Assessment Report.

  7. 7.

    United Nations, Paris Agreement, 2015, Article 1(a).

  8. 8.

    Rogelj J, Den Elzen M, Höhne N, Fransen T, Fekete H, et al. (2016) Paris Agreement climate proposals need a boost to keep warming well below 2 °C. Nature 534:631–39; see also Robiou du Pont Y, Meinshausen M (2018) Warming assessment of the bottom-up Paris Agreement emissions pledges. Nat. Commun 9(1):4810. In Chap. 2 of the present volume, Professor Steffen concludes that the Paris target of 1.5 °C is now out of reach.

  9. 9.

    IPCC (2018) Summary for Policymakers In: Global Warming of 1.5 °C. An IPCC Special Report on the impacts of global warming of 1.5 °C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [Masson-Delmotte V, et al. B.4.2, p8.]

  10. 10.

    Deliotte Access Economics (2017) At what price? The economic, social and icon value of the Great Barrier Reef.

  11. 11.

    See, for example, Peel J and Osofsky H (2020) Climate Change Litigation. Annu Rev. Law Soc Sci 2020 16:8.1–8.18.

  12. 12.

    United States Court of Appeals for the District of Columbia Circuit 286 U.S. App. D.C. 78; 912 F.2d 478; 1990 U.S. App. LEXIS 14728; 21 ELR 20170.

  13. 13.

    Greenpeace Australia Limited v. Redbank Power Company Pty Limited [1994] NSWLEC 178.

  14. 14.

    See, for example, Preston J (2008) The Role of Courts in Relation to Adaptation to Climate Change. A paper presented to: Adapting to Climate Change Law and Policy Conference, http://www.lec.justice.nsw.gov.au/Documents/preston_the%20role%20of%20courts%20in%20relation%20to%20adaptation%20to%20climate%20change.pdf

  15. 15.

    See http://climatecasechart.com/ (Accessed 11 Jan 2021).

  16. 16.

    See Sax JL (1971) Defending the Environment: A Handbook for Citizen Action. Vintage Books, New York; Jacqueline Peel (2007) The Role of Climate Change Litigation in Australia’s Response to Global Warming. Environment and Planning Law Journal 24:90; Preston P (2009) Climate Change Litigation. Environment and Planning Law Journal 26:169–70; Peel J and Osofsky H (2020) Climate Change Litigation Annu Rev. Law Soc Sci 2020 16:8.1–8.18.

  17. 17.

    Preston B (2018) Mapping Climate Change Litigation. Australian Law Journal 92:777–81.

  18. 18.

    Peel J, Osofsky H (2020) Climate Change Litigation. Annu Rev. Law Soc Sci 2020 16:8.1–8.18.

  19. 19.

    Peel J and Osofsky HM (2015) Climate Change Litigation: Regulatory Pathways to Cleaner Energy. Cambridge University Press, England, p 1; cf. Markell D, Ruhl JB, (2012) An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual? Florida Law Review 64:27.

  20. 20.

    See Bell-James J, Ryan S (2016) Climate Change Litigation in Queensland: A Case Study in Incrementalism. Environment and Planning Law Journal 33: 515–6 citing Finanzio A SC (2015) Public Participation, Transparency and Accountability – Essential Ingredients of Good Decision Making, Paper presented at The Accountability and the Law Conference, Brisbane, 9 February 2015; Preston B (2010) Climate Change in the Courts Monash University Law Review 36(1):15; Preston BJ (2011) The Influence of Climate Change Litigation on Governments and the Private Sector. Paper presented at The Beyond a Carbon Price: A Framework for Climate Change Regulation in Australia Workshop, Melbourne, 11–12 August 2011 and Peel and Osofsky (n 4) 167, 222.

  21. 21.

    Special Issue: Climate Change and the Law (2018) Australian Law Journal 92:747. See e.g. Wilder M (2018) Climate Change and the Law – Introduction ALJ 92:747.

  22. 22.

    Special Issue: Climate Change and the Law (2019) Australian Law Journal 92:8

  23. 23.

    https://www.theguardian.com/environment/2020/oct/28/overwhelming-majority-believe-australia-is-already-experiencing-climate-change

  24. 24.

    https://www.abc.net.au/news/2019-05-15/federal-election-vote-compass-climate-change/11110912

  25. 25.

    Coal in Australia. The Dangerous Dark Stuff (2019) The Economist p 57.

  26. 26.

    Coal in Australia. The Dangerous Dark Stuff (2019) The Economist p 57.

  27. 27.

    [2019] NSWLEC 7.

  28. 28.

    Gloucester Resources [2019] NSWLEC, 7 at [699] (8 February 2019).

  29. 29.

    Gloucester Resources Limited v Minister for Planning [2018] NSWLEC 1200.

  30. 30.

    Gloucester Resources [2018] NSWLEC 1200 at [31].

  31. 31.

    Gloucester Resources [2018] NSWLEC 1200 [31].

  32. 32.

    Gloucester Resources [2019] NSWLEC 7 [533].

  33. 33.

    [2019] NSWLEC 7 at [515].

  34. 34.

    [2019] NSWLEC 7 at [530].

  35. 35.

    [2019 NSWLEC 7 at [530]–[533].

  36. 36.

    Statement by Gloucester Resources Ltd. noted in Lawyers Weekly, 14 February 2019 (Autumn 2019), 24.

  37. 37.

    White R, Hallinan J, Raymont B (2018) Climate change takes centre stage in Land and Environment Court. Law Society Journal (NSW) 54:80; Wilder M, Sharona C (2019) The Mainstreaming to Climate Litigation. Asia Jurist 71.

  38. 38.

    Cf Oshlack v Richmond River Council (1988) 193 CLR 72 at 89 [45] per Gaudron and Gummow JJ, 125–6 [139]–[141] per Kirby J.

  39. 39.

    KEPCO Bylong Australia Pty Ltd v Independent Planning Commission (No 2) [2020] NSWLEC 179.

  40. 40.

    https://www.equitygenerationlawyers.com/odonnell-v-commonwealth/

  41. 41.

    Paris (France) 13 December 2015, in force 4 November 2016 UNFCC, Report of the Conference of the Parties on its 21st Session, Addendum, undocfccc/cp/2015/10/add1, 29 January 2016. Australia ratified the Paris Agreement on 10 November 2016. In August 2017, the Government of the United States of America submitted a formal notice that the United States intended to withdraw from the Paris Agreement, a process which was completed in November 2020, in accordance with art 28 of the Agreement. See Peel J (2017) Climate Change Litigation: Lessons and Pathways. Judicial Officers’ Bulletin (NSW) 29:99. See also McAdam J (2012) Climate Change, Forced Migration and International Law. Oxford University Press, England and Saul B et al. (2012) Climate Change and Australia: Warming to the Global Challenge. Federation, Sydney p 191–232.

  42. 42.

    Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948).

  43. 43.

    Nagra S (2017) The Oslo Principles and Climate Change Displacement: Missed Opportunity or Misplaced Expectations? Carbon and Climate Law Review. Birnie TW, Boyle AE (1992) International Law and the Environment, Oxford University Press, England p 188–195.

  44. 44.

    Oslo Principles on Global Climate Change Obligations (1 March 2015), https://globaljustice.yale.edu/sites/default/files/files/OsloPrinciples.pdf“Oslo Principles”. In 2013, the author accepted an invitation from judges of the Hoge Raad der Nederlanden (the Supreme Court of the Netherlands) to join an international expert group to develop legal principles that might meaningfully engage with the problem of climate change, in a way that municipal judges and like decision-makers would understand and find useful. The Oslo Principles were drafted by this group.

  45. 45.

    See Baxter T (2017) Urgenda-style Litigation has Promise in Australia. Australian Environment Review 32(3):70. In common law countries such proceedings are likely to be brought under administrative review remedies. Cf Thomson v Minister for Climate Change Issues [2017] NZHC 733; <www.courtsofnz.govt.nz/cases/thomson-v-the-minister-for-climate-change-issues/atatimages/filedDecision?r=732.86082992, (accessed 27 Nov 2017). The Court found that the results of New Zealand’s election, installing a Labour Coalition Government, rendered the decision moot as the new Government had pledged to review and reduce the country’s 2050 carbon target.

  46. 46.

    State of the Netherlands v Urgenda (see unofficial translation here: https://www.urgenda.nl/wp-content/uploads/ENG-Dutch-Supreme-Court-Urgenda-v-Netherlands-20-12-2019.pdf)

  47. 47.

    Ibid [5.7.9].

  48. 48.

    Knox J (2019), Issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment – Report of the Special Rapporteur, Human Rights Committee, 40th sess, Agenda Item 3, UN Doc A/HRC/40/55 (8 January 2019) 3 [16].

  49. 49.

    See for example Migration Act 1958 (Cth) which adopted a non-racial right to seek immigration to Australia, commencing the repeal of ‘White Australia’ laws. Contrast Pacific Island Labourers Act 1901 (Cth). See also Australian Communist Party v The Commonwealth (1951) 83 CLR 1 which invalidated the Communist Party Dissolution Act 1950 (Cth) which purported to dissolve the Communist Party but was held to be unconstitutional.

  50. 50.

    See e.g. Al-Kateb v Godwin (2004) 215 CLR 562 (validity of indefinite detention under federal statutory law and executive orders).

  51. 51.

    Human Rights Act 2004 (ACT), 22.

  52. 52.

    Charter of Human Rights and Responsibilities Act 2006 (Vic), s 23.

  53. 53.

    Human Rights Act 2019 (Qld).

  54. 54.

    Although noting that under Human Rights Act 2019 (Qld), s48(3), international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

  55. 55.

    See, e.g., Environmental Planning and Assessment Act 1979 (NSW) s 4.15(1)(e); Environmental Protection Act 1994 (Qld) s 175, sch 4 (meaning of ‘standard criteria’); Environment Protection Act 1970 (Vic) s 67 AC; Development Act 1993 (SA) s 85(7); Planning and Development Act 2005 (WA) s 247(1).

  56. 56.

    See e.g. Tesco Stores v Secretary of State for the Environment [1995] 1WLR 759 (HL); R v Secretary of State for the Environment, Transport and the Regions; ex parte Holding and Barnes plc [2001] JPL 291; [2001] UKHRR 270.

  57. 57.

    (2011) Case Law Analysis, Planning Law and the Human Rights Act 1998. Journal of Environmental Law. Oxford University Press 13:3.

  58. 58.

    Hart D (2000) The Impact of the European Convention on Human Rights on Planning and Environmental Law. Journal of Planning & Environmental Law 117; Purdue M (2002) Human Rights and Planning Law, the UK Experience. Asia Pacific Law Review 10:195.

  59. 59.

    Ferguson A (2000) Human Rights and Planning Law Collide. Scots Law Times 27:211; Enemark S, Hvingel L, Galland G (2014) Land Administration, Planning and Human Rights. Planning Theory 13:331; Purdue M (2004) The Human Rights Act 1998, Planning Law and Proportionality Environmental Law Review 6:161.

  60. 60.

    Human Rights Act 1998 (UK).

  61. 61.

    European Convention, art 1 (Peaceful enjoyment of property rights).

  62. 62.

    Ibid, art 8 (Privacy and family rights).

  63. 63.

    Ibid, art 14 (Freedom from discrimination in respect of protected rights).

  64. 64.

    Ibid, art 6 of the first Protocol to the European Convention; cf. UNHCR, art 19 (Freedom of opinion and expression).

  65. 65.

    [2001] UKHL 23 at [48]–[53], [60], [70], [139].

  66. 66.

    Purdue M (2004) The Human Rights Act 1998, Planning Law and Proportionality Environmental Law Review 6:164.

  67. 67.

    (2001) 10 BHRC 48.

  68. 68.

    R (On the application of Michael and Jenny Boyd and English Nature) [2004] EWHC 1105 at [19]–[20].

  69. 69.

    The Associated Provincial Picture Theatre Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. See now in Australia Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(e), 5(2)(g), 6(1)(e) and 6(2)(g). In England, the test was earlier expressed as “so unreasonable that it was irrational”. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410, 415. Subsequently, a test has been reformulated in terms of proportionality.

  70. 70.

    See R (On the Application of Egan) v Department of Transport, Local Government and the Regions [1991] AC 749. In R v Secretary of State for the Home Department; ex parte Brind [1991] AC 749 at [2] Lord Slynn of Hadley observed that the time had come for the principle of proportionality to be recognised as part of the English law.

  71. 71.

    United Kingdom Government, Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom (19 October 2019) [7] (emphasis added).

  72. 72.

    Compare the references in the High Court of Australia in Minogue v Victoria (2018) 92 ALJR 668 at [63]; [2018] HCA 27 citing Vinter v United Kingdom (2013) 63 EHRR 1 a case concerning prisoners’ rights under the Charter of Human Rights and Responsibilities 2006 (Vic). See also Groves M (2018) A Life Without Hope – The Victorian Charter and Parole. Criminal Law Journal 42:364.

  73. 73.

    Hart D (2000) The Impact of the European Court of Human Rights on Planning and Environmental Law. Journal of Planning and Environmental Law 117.

  74. 74.

    (1998) 56 EHRR 357. See Hart above n.43 at 122.

  75. 75.

    (1998) 4 BHRC 447.

  76. 76.

    (1999) 5 BHRC 293 at 321 [116].

  77. 77.

    A/303-C, [1994] ECHR 46. See also McGinley v United Kingdom (1998) 27 EHRR 1; and Pine Valley Developments v Ireland (1991) 14 EHRR 319.

  78. 78.

    (1994) A 303-C para [51].

  79. 79.

    Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33

  80. 80.

    Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33

  81. 81.

    Bell-James J, Collins B (2020) Queensland’s Human Rights Act: A New Frontier for Australian Climate Change Litigation? UNSW Law Journal 43(1). http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2020/03/01-Bell-James-Collins.pdf

  82. 82.

    Griffin P (2017) The Carbon Majors Database: CDP Carbon Majors Report 2017, available at https://climateaccountability.org/pdf/CarbonMajorsRpt2017%20Jul17.pdf

  83. 83.

    See Hormio S (2017) Can Corporations Have (Moral) Responsibility Regarding Climate Change Mitigation? Journal of Ethics, Policy and Environment 2(3): 314.

  84. 84.

    http://carbonmajors.org

  85. 85.

    German Civil Code (BGV) art. 1004.

  86. 86.

    See, eg, Corporations Act 2001 (Cth) s 299A(1)(c).

  87. 87.

    See Caldwell Z (2020) Corporations and Climate Change: An Investigation of Mandatory Climate Risk Disclosure in Australia. EPLJ 37:5.

  88. 88.

    ClientEarth v Enea (2019). See https://www.clientearth.org/world-first-climate-risk-case-launched-over-major-coal-plant-in-poland/

  89. 89.

    Abrahams v Commonwealth Bank of Australia (case withdrawn)

  90. 90.

    See Hutchens G (2017) Commonwealth Bank shareholders drop suit over nondisclosure of climate risks. The Guardian Australia.

  91. 91.

    McVeigh v Retail Employees Superannuation Pty Ltd (case withdrawn). The plaintiff alleged a breach of Corporations Act 2001 (Cth) s 1017C which requires a superannuation supplier to provide information to a concerned person if it is requested and relevant to their making an informed judgment about using the supplier.

  92. 92.

    https://rest.com.au/why-rest/about-rest/news/rest-reaches-settlement-with-mark-mcveigh

  93. 93.

    See the Bank of England’s webpage on climate change, including discussions on financial disclosure and financial risk: https://www.bankofengland.co.uk/climate-change (accessed 14 Feb 2021).

  94. 94.

    Corporations Act 2001 (Cth) s 344.

  95. 95.

    Ibid s 1308.

  96. 96.

    ASIC provided more guidance to company directors in February 2021 with its “four high-level recommendations relating to climate-risk management and disclosure”: see https://asic.gov.au/about-asic/news-centre/articles/managing-climate-risk-for-directors/. (Accessed 14 Feb 2021).

  97. 97.

    See Fernyhough J (2019) Hayne rebukes directors on climate risk failure. Australian Financial Review; Sales P (2020) Directors’ Duties in a Post-Hayne World: “The Company” as More than the Sum of Its Shareholders. Australian Law Journal 94: 936, 944–946.

  98. 98.

    Hutley N SC and Hartford-Davis S (2016) Memorandum of Opinion – Climate Change and Directors’ Duties. Centre for Policy Development and the Future Business Council, Melbourne, Victoria. The authors supplemented and re-affirmed this opinion in a Supplementary Memoranda of Opinion published on 26 March 2019 by the Centre for Policy Development. This relied on the increasing attention to climate risk and disclosure by Australian financial and regulatory bodies; the changes in financial reporting frameworks relevant to the disclosure of climate risk in Australia; the increased investor and community pressure on the topic; and notable development in the state of scientific knowledge. The fact that these developments had been widely publicised persuaded the joint authors to reaffirm the “exponential” increasing exposure of individual directors of corporations to climate change litigation.

  99. 99.

    Ibid, 2 [3]–[4].

  100. 100.

    Hutley N SC and Hartford-Davis S (2019) Supplementary Memorandum of Opinion – Climate Change and Directors’ Duties, p 5.

  101. 101.

    Ibid 3 (emphasis added).

  102. 102.

    D’Amato A (1990) Do We Owe a Duty to Future Generations to Preserve the Global Environment? American J Int’l Law 84:190–198; Shelton D (1991) Human Rights, Environment Rights, and the Right to Environment. Stanford J Int’l Law 28:103–105.

  103. 103.

    Preston B (2021) “Climate Conscious Lawyering”. Australian Law Journal 95:51, 69–5.

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    Michael Kirby

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    Rod Taylor

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Kirby, M. (2022). Climate Change Litigation and Human Rights. In: Williams, S.J., Taylor, R. (eds) Sustainability and the New Economics. Springer, Cham. https://doi.org/10.1007/978-3-030-78795-0_13

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