We wish to acknowledge the work of each of the barristers who have contributed their time, energy and expertise in bringing this Review to life. Without their contributions it would not have been possible. Contributors Include:
Construction Law and Renewables (Martin Scott KC/Carla Aumann/James McNicol Smith);
Criminal Law (Dr Julian Murphy);
Energy Law (Energy Regulators) (Stephen Parmenter KC/William Stone/Kess Dovey);
Environment (Commonwealth and State Acts) (Zoe Maud SC/Sophie Molyneux);
Human Rights (Emrys Nekvapil SC);
Insolvency (Stewart Maiden KC/Panagiota Pisani); Insurance Law (Dr Andrew Hanak KC/Veronica Holt);
International Law (Dr Daye Gang); Intellectual Property Law (Craig Smith SC); Land Use Law (Fiona McLeod AO SC); Planning (Victoria) (Susan Brennan SC);
Regulatory (Australian Securities and Investments Commission) (Dr Laura Schuijers);
Shipping Law (Matthew Harvey KC/Dr Daye Gang) and Taxation Law (Andrew de Wijn SC/Edward Moore).
SPONSORS
Commercial Bar Association of Victoria
AUSTRALIAN CLIMATE CHANGE
HIGHLIGHTS
» Climate change will give rise to new and complex issues that will intersect with a wide range of legal practice areas not just the traditional areas of environmental law, planning law, administrative law and misleading or deceptive conduct (i.e. greenwashing). This Review explores this intersection in 16 legal practice areas.
» Forty-three climate change litigation cases were identified.1
» Climate change litigation cases were identified in 11 of the 16 legal practice areas considered in the Review. Human rights, greenwashing (Regulatory and NonRegulatory) and Criminal Law were the three practice areas with the greatest number of cases in 2024 with 21 percent (nine cases), 19 percent (eight cases) and 16 percent (seven cases), respectively. The Criminal Law cases are arguably an example of a type of litigation known as Strategic Litigation Against Public Participation (SLAPP). SLAPP litigation has not been confined to the Criminal Law practice area in 20242. The spread of cases across various legal practice areas clearly suggests that climate change litigation is more than simply greenwashing.
» No climate change litigation cases were identified in the practice areas of Construction and Renewables, Insolvency, Insurance, Intellectual Property Law, Shipping Law and Taxation Law in 2024.
» The Federal Court of Australia was by far the forum attracting the most cases, with about 42 percent of climate change litigation cases commenced in that court in 2024. Climate change litigation in State courts was comparatively less, however, cases were identified
in the Australian Capital Territory, New South Wales, Northern Territory, Queensland, Victoria and Western Australia. Somewhat surprisingly the land courts in the various State jurisdictions, particularly the New South Wales Land and Environment Court (NSWLEC) did not register large numbers of cases that fell within the definition of “climate change litigation” used in the Review3 .
» Non-governmental organisations (NGOs) (38 percent) and then natural persons (33 percent)4 filed the greatest number of climate litigation cases. Regulators5 commenced about 9 percent of the cases. No cases were commenced by listed companies, shareholders or the Commonwealth.
» The most targeted defendants were the Commonwealth (38 percent) and unlisted companies (26 percent). If claims against listed and unlisted companies are combined it brings the total number of cases against companies to 34 percent, approaching the amount against the Commonwealth (38 percent). Regulators and NGOs were the least targeted (2 percent).
» Declarations and injunctions were the most claimed relief. Damages were only claimed in one of the 43 cases (domestically). Absence of this form of relief may hint at causation issues being unresolved as well as the need to further develop the attribution science and its integration into orthodox legal principles and reasoning.
» Administrative law cases in the Federal Court of Australia and the Administrative Review Tribunal (ART, previously the AAT) remain the predominant
1. Planning legislation and schemes throughout the Australian States impose obligations on planning decision makers to consider a wide range of climate change risks and impacts (where relevant). Planning decisions can be reviewed and appealed to various Tribunals and Courts. We understand that there are a significant number of planning cases that involve issues of climate science, law and policy to varying degrees. Therefore, the inclusion of the planning cases across Australia in the tally was likely to skew the numbers and trends. Accordingly, we have excluded the planning cases from the tally. Examples of the Planning Law cases extant in 2024 are included in Appendix D.
2. In Munkara v Santos NA Barossa Pty Ltd (No. 3) [2024] FCA 9, certain Tiwi Islanders were ultimately unsuccessful in their claim for an injunction preventing the construction of a gas pipeline in the Timor Sea. The Federal Court was critical of the “cultural mapping process” adopted by the applicants and expressed a view that witnesses were subject to a “form of subtle coaching” to extend their cultural stories to the area of the pipeline (at [994]). Santos is seeking costs against the person who funded the litigation. Environmental organisations have described this step as an example of SLAPP litigation (Financial Review, “Federal Court orders EDO to release 3200 documents in financier search” by Ayesha de Kretser and Elouise Fowler, 9 October 2024).
3. Two climate litigation cases were identified in the NSWLEC in 2024. In next year’s Review, the Editors will reassess the definition of “climate change litigation” and its application to the cases before the NSWLEC.
4. The percentages given throughout the Review should be understood as approximate figures.
5. The term “Regulators” refers to the Australian Securities and Investments Commission and the Australian Competition and Consumer Commission.
type of cases in Australia in 2024. The expected eclipsing of administrative law cases (i.e. first wave cases) with cases founded on other causes of action such as tort and misleading or deceptive conduct (i.e. second and third wave cases) has not yet occurred in Australia. Criminal prosecution against climate protestors have been prominent this year, with cases in Victoria, the Australian Capital Territory, Queensland and Western Australia. There have been no directors’ duties cases. Whether such cases may be commenced following the newly enacted mandatory climate reporting laws6 (and the expiration of the limited immunity, insofar as litigation other than by the Australian Securities and Investments Commission is concerned (ASIC)) remains to be seen.
» Unlike in overseas jurisdictions, we have not identified climate litigation cases challenging the funding of high emissions projects or cases claiming damages against “carbon majors” for their contribution to climate change.7
» The Oil & Gas Industry and Mining Industry were the industries with the most climate litigation cases with 21 percent and 19 percent, respectively. Interestingly,
there were no climate litigation cases in the “hard to abate” industries (Construction, Manufacturing, Shipping, and Transport). Despite widespread criticism of the sustainability claims in the Fashion Industry, no cases were identified in that industry in 2024.
» The London School of Economics (the LSE) has identified a number of strategies used in “climate-aligned lawsuits”.8 “Integrating climate considerations”9 was the most commonly used strategy (about 47 percent, or 20 cases). Next was the “climate washing cases”10 at about 14 percent (six cases). Depending upon the classification of cases there may be an argument for inclusion of at least one case under each of the other strategies11 identified by the LSE. Of particular interest during the next few years in Australia may be the “transition risk” cases which “concern the (mis)management of low-carbon transition risk by directors, officers and others tasked with ensuring the success of a business”.12 Again, the enactment of the mandatory climate reporting legislation earlier this year13 may provide the basis for cases being brought in the future.
6. Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024 (Cth).
7. The categories are derived from the Bank of England’s 2021 Biennial Exploratory Scenario published on 8 June 2021.
8. Setzer J and Higham C (2024) “Global Trends in Climate Change Litigation: 2024 Snapshot”. London: Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science (pp.3 to 5) (LSE Snapshot (2024)).
9. Cases that apply an “integrating climate considerations” strategy are cases that seek to integrate climate considerations, standards or principles into a given decision (LSE Snapshot (2024) at pp.3 to 5).
10. Cases that apply the “climate washing” strategy are cases that challenge inaccurate government or corporate narratives regarding contributions to the transition to a low-carbon future, or misinformation about climate science decision (LSE Snapshot (2024) at pp.3 to 5).
11. The other strategies are “Government framework”; “Corporate Framework”; “Turning off the taps”; “Failure to adapt”; “Transition risk”; and “Polluter pays (compensation). These strategies are defined and discussed in the LSE Snapshot (2024) at pp.3 to 5.
12. LSE Snapshot (2024) at pp.3 to 5.
13. Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024 (Cth).
THE TOTAL NUMBER OF CLIMATE LITIGATION CASES CONTINUES TO RISE GLOBALLY, WITH AUSTRALIA CONSISTENTLY RECORDING THE SECOND HIGHEST NUMBER OF CASES.
INTRODUCTION
By TOMO BOSTON KC, LISA DE FERRARI SC and VERONICA HOLT
Purpose
GLOBALLY, CLIMATE CHANGE litigation continues to rise. Both the total number of climate change litigation cases and the number of countries in which those cases were commenced has doubled in the six years since 201814
The majority of these cases have been commenced in the USA with Australia15 consistently recording the second highest number of climate change litigation cases.
A purpose of the Review is to provide an insight into the Australian climate litigation cases that were extant at any time in 2024, by examining case numbers, parties, causes of action, relief, industries and current and future trends. This examination was conducted by leading senior practitioners at the Victorian Bar under various legal practice areas.
Another purpose of the Review is to develop competency and interest in climate change issues and in particular, the intersection with legal practice areas. As economies move towards the Paris Agreement milestone dates of 2030 and 2050, and seek to achieve emission reductions as part of the net zero transition:
» the ways of doing business will change;
» the ways in which businesses operate will change;
» the ways in which governments and regulators regulate will change;
» the ways in which businesses interact with other businesses and consumers will change; and
» the impacts of climate change on humans and their respective rights will be impacted.
These changes will be profound. They will necessarily give rise to new and complex factual and legal issues across many legal practice areas, not limited to the obvious areas such as environmental law and administrative law. Accordingly, it is critical that practitioners develop some level of competency with climate change issues, and in particular:
» the interaction between the practitioners’ legal practice area and climate change; and
» the impact of climate change on clients’ interests.
The 16 legal practice areas addressed in the Review are a starting point. In subsequent Reviews, intersections between climate and other legal practice areas will be explored.
What is climate change litigation?
A feature that plagues the broad area of climate law is the lack of agreed definitions. The problem extends to the very definition of climate change litigation.
We have adopted the definition of climate change litigation used by the LSE in its annual Snapshot, namely “cases brought before judicial and quasi-judicial bodies that involve material issues of climate change science, policy or law”. 16 These cases:
» include cases in other jurisdictions in which Australia or an Australian citizen is a party. Thus for example, complaints to international bodies such as the United Nations Human Rights Committee may be included;
» exclude investigations, communications by domestic and international bodies, complaints to regulators, requests for prosecution or enforcement actions.
14. 1328 and 2666 climate change litigation cases were reported in 2018 and 2023, respectively. Climate change litigation cases were filed in 28 countries in 2018 and 55 countries in 2023. LSE Snapshot 2024. The figures from 2018 to 2023 set out in the Table are sourced from the LSE Snapshot for 2019, 2020, 2021, 2022 and 2023.
15. 132 cases in 2023 and 94 cases in 2018 (LSE Snapshot (2024)). The difference between the LSE’s tally and the Review’s tally appears to be that the LSE’s tally is cumulative whereas the Review’s tally is not. In other words, with the LSE’s tally new cases from a subsequent year are added to the previous year’s tally. Whereas the Review’s tally focuses on cases that were extant in 2024 and excluded cases that had concluded prior to 2024.
16. Setzer J and Higham C (2024) “Global Trends in Climate Change Litigation: 2024 Snapshot”. London: Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science at page 7.
UPDATE ON THE CLIMATE LITIGATION LANDSCAPE IN 2024
Active regulators
In 2024, both the Australian Securities and Investments Commission (ASIC) and the Australian Competition and Consumer Commission (ACCC) were active in addressing alleged greenwashing in the financial products and services, and the consumer products industries, respectively.
ASIC’s particular focus has been on ensuring market integrity and proper disclosures and governance so that retail consumers in particular can participate in the financial system in a “confident and informed” manner.17 ASIC’s role will expand to include responsibility for the new mandatory climate reporting regime.18 These roles are seen as critical because private capital will be integral to Australia’s transition to net zero.19
During 2024, ASIC has pursued civil penalty proceedings, infringement notices and corrective disclosures20 to address specific types of alleged greenwashing: (a) underlying investments that are inconsistent with disclosed ESG investment screens and investment policies; (b) sustainability-related claims made without reasonable grounds; (c) insufficient disclosure on the scope of ESG investment screens and investment methodologies; and (d) sustainability-related
claims made without sufficient detail.21
Most notably, ASIC was successful in its greenwashing claims against Mercer Superannuation (Australia) Ltd,22 Vanguard Investments Australia Ltd23 and LGSS Pty Ltd24 (Active Super), and secured civil penalties of $11.3 million against Mercer25 and $12.9 million against Vanguard.26 In addition, between 1 April 2023 and 30 June 2024, ASIC issued eight infringement notices and 37 corrective disclosure outcomes related to greenwashing27.
The ACCC’s focus has been on sustainability claims in relation to consumer goods. Consumers are increasingly using sustainability claims to make purchasing decisions but commonly lack the necessary information and capacity to verify the claims. Accordingly, consumers are required to trust the claims as made.28 In addition, the ACCC has published a draft guide on sustainability collaborations29 recognising that to achieve better environmental outcomes collaboration with competitors might be necessary, whilst on the other hand, such collaborative arrangements could lead to prohibited conduct such as cartel conduct and other anticompetitive practices.
17. Report 791 “ASIC’s interventions on greenwashing misconduct:2023-2024” (August 2024) at pp.3-5
18. Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024 (Cth), which amended various legislation, including the Corporations Act 2001 (Cth).
19. Report 791 “ASIC’s interventions on greenwashing misconduct:2023-2024” (August 2024) at p.5.
20. Report 791 “ASIC’s interventions on greenwashing misconduct:2023-2024” (August 2024) at p.3.
21. Report 791 “ASIC’s interventions on greenwashing misconduct:2023-2024” (August 2024) at p.5.
22. ASIC v Mercer Superannuation (Australia) Ltd [2024] FCA 850.
23. ASIC v Vanguard Investments Australia Ltd [2024] FCA 308 (liability proceeding).
24. ASIC v LGSS Pty Ltd [2024] FCA 587.
25. ASIC v Mercer Superannuation (Australia) Ltd [2024] FCA 850.
26. ASIC v Vanguard Investments Australia Ltd (No.2) [2024] FCA 1086 (Civil penalty).
27. “ASIC’s interventions on greenwashing misconduct: 2023-2024” Report 791, August 2024 at p.3.
28. “Greenwashing by businesses in Australia: Findings of the ACCC’s internet sweep of environmental claims” produced by the ACCC (March 2023).
29. “Sustainability collaborations and Australian competition law: A guide for business” draft for consultation. Published by the ACCC (July 2024).
On 18 April 2024, the ACCC commenced proceedings in the Federal Court of Australia against Clorox Australia Pty Limited, the producers of GLAD tidy bags. The essential allegation concerns a false and misleading description of GLAD-branded kitchen tidy and garbage bags being marketed as comprising “50 percent ocean plastic”.30
New and proposed legislation
In August 2024, the Australian Capital Territory amended its Human Rights Act 2004 (ACT) to include a “right to a clean, healthy and sustainable environment…”.31 This is the first and only recognition of such a right in Australia.
In September 2024, the Commonwealth Parliament passed the Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024 (Cth), which amended various legislation, including the Corporations Act 2001 (Cth). The amendments to the Corporations Act will impose obligations on many large Australian businesses and financial institutions to include in their annual reports, a sustainability report which will require climate-related financial disclosures.32
We note in passing that in June 2024, the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 was rejected by the Commonwealth Senate.33 The Bill had sought to impose a statutory duty on identified administrative decision-makers to consider the health and wellbeing of current and future children of Australia. Introduction of the Bill followed on from the decision of the Full Federal Court of Australia in Sharma rejecting a similarly focused duty of care.34
More legislation and guidance can be expected:
» the October 2020 review into the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) found that it was outdated, ineffective, and required fundamental reform35. In April 2024, the Federal Government announced a package of reforms which included the establishment of a Federal environment protection authority called Environment Protection
Australia;
» the Senate inquiry into greenwashing, which is expected to report by 12 February 2025, is considering “legislative options to protect consumers from greenwashing”; and
» the Australian Government is working with the Australian Sustainable Finance Institute to develop a sustainable finance taxonomy.36
Non-curial complaints
In 2024, NGOs, individuals and shareholders have sought to achieve climate outcomes through non-curial means. While these steps have not been included in the tally of climate change litigation cases in the Review, it is worth mentioning some examples to provide a fuller picture of the climate change landscape in Australia.
Examples of non-curial complaints made by NGOs and individuals in 2024, include:37
» in April 2024, Dr Standen, a member of the superannuation fund UniSuper, lodged a complaint with ASIC alleging that some of its investment products had been mislabelled as sustainable, even though those products invested in Transurban Group, one of the world’s largest toll road operators. It was alleged that the Transurban business model relies on increasing road traffic which increases climate change and pollution;38 and » in October 2024, the Environmental Defenders Office filed a complaint with the ACCC on behalf of the research and advocacy organisation, Climate Integrity, alleging that Qantas Airlines’ fly carbon neutral product, promotion of sustainable aviation fuels and the credibility of the company’s net zero transition are misleading or deceptive because Qantas’ global carbon emissions are equivalent to 4 percent of Australia’s total annual emissions.39
Shareholder activists have sought to influence the climate impacting activities of listed companies. These shareholder activists are no longer single investors or activists groups, but now include large institutional investors and Australian superannuation funds. These activist shareholders utilise a
30. GLAD bags manufacturer in court for ‘50% ocean plastic’ claims | ACCC.
31. Human Rights (Healthy Environment) Amendment Bill 2023, section 27C.
32. Part 2M of the Corporations Act 2001 (Cth). In addition, in November 2024, ASIC released “Consultation Paper 380: Sustainability reporting” and a draft regulatory guide, “Regulatory Guide 000: Sustainability Reporting.”
33. Report on the “Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023” prepared by the Environment and Communications Legislation Committee of the Senate (June 2024) at p.vii.
34. Minister for Environment v Sharma (2022) 291 FCR 311 ([2022] FCAFC 35).
35. DCCEEW 2022: “Nature Positive Plan: better for the environment better for business” at page 4.
36. Interim report: Developing an Australian sustainable finance taxonomy - Initial phase: Grant report for Treasury.
39. Formal ACCC complaint lodged against Qantas for allegedly misleading sustainability claims - Environmental Defenders Office (edo. org.au). In March 2024, District Court of Amsterdam found that KLM Royal Dutch Airlines marketing that flying can be or is becoming sustainable, and that its “offsetting” products reduce or compensate for the climate impact of flying were misleading and therefore unlawfully breached the EU Unfair Commercial Practices Directive (Historic win against greenwashing as KLM’s advertising ruled illegal | ClientEarth).
range of strategies to influence a company’s climate policy including calling a meeting, distributing information to shareholders and proposing climate resolutions. Some examples are:
» in April 2024, 58.4 percent of shareholders voted against the Climate Transition Action Plan and 2023 Progress Report of the Annual General Meeting of Woodside Energy Group.40 The Future Fund was one of the institutional investors that voted against the Climate Transition Action Plan;41
» in September 2024, institutional investors withdrew a shareholder resolution filed with BHP Group Limited which sought the provision of further disclosure on BHP’s Scope 3 plans and investments. BHP’s Scope 3 emission, particularly from its processing of iron ore and metallurgical coal to steel, accounts for over 95 percent of its emissions. The withdrawal was made as a result of further disclosures in BHP’s 2024 Climate Transition Action Plan;42 and
» in November 2023, the National Australia Bank (NAB) announced that corporate and institutional customers would require a transition plan from 1 October 2025 as a precondition for loans. In October 2024, NAB shareholders, unsatisfied with the disclosures on this precondition proposed a resolution to the upcoming Annual General Meeting scheduled for 18 December 2024. The resolution seeks disclosures on whether a range of customers will be eligible for new loans. Included in the shareholders’ purview are, for example, customers whose transition plans are not “credibly aligned” with the Paris Agreement targets or all fossil fuel company customers.43
Class Actions
There is a recent history of using the class action regime under Part IVA of the Federal Court of Australia Act 1976 (Cth) and Division 9.3 of the Federal Court Rules 2011 (Cth) to pursue climate change litigation. We did not identify any cases that have utilised the class action regimes in the various States in 2024.44
Climate impacts whether through sea level rise, increased storm intensity or other climate phenomenon, or the greenwashing of consumer and financial products and services have the potential to impact large numbers of
people and properties. The evidentiary and financial burden of these claims might be too burdensome for an individual. As a result, the class action regime is suited to bringing climate change litigation where there are common issues of fact and law between affected individuals.
The cases we have identified have all involved individuals making claims against the Commonwealth government or their Ministers/Departments. Of those cases, only Pabai & Ors v Commonwealth remained on foot in 2024. The remaining cases of O’Donnell v Commonwealth of Australia45 and Minister for Environment v Sharma46 were resolved prior to 2024 and were excluded from the tally.
The Sharma case and the Pabai case have some similarities. In short, the Sharma case sought to establish that the Commonwealth Minister for the Environment owed persons under the age of 18 years of age and resident in Australia a duty of care arising out of the Minister’s consideration of a coal mine extension under the EPBC Act
The Pabai case sought to establish that the Commonwealth owed the Torres Strait Islanders a duty to protect them from climate change. Both are negligence claims in which damage was alleged. Both seek to establish a mitigation duty. However, in the Pabai case an adaptation duty was also pleaded.
The O’Donnell case is dissimilar to the Sharma case and the Pabai case. It is not a negligence case but rather can broadly be classified as a greenwashing case. The allegation was that the Commonwealth had failed to make proper disclosure of the climate change risks in respect of certain sovereign bonds. The failure to disclose these risks was alleged to amount to misleading or deceptive conduct under s.12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth). Declaratory and injunctive relief was sought but damages was not.
We are yet to see any class actions against corporations for:
» greenwashing in relation to net zero pledges and targets;47
» damages for contribution through current and historical emissions for damage to the climate, property and person;48 and
» failure to adapt business practices and operations to achieve net zero.49
40. Status quo inconceivable: majority of investors reject Woodside’s climate strategy - ACCR.
41. Future Fund reveals it voted against Woodside’s climate strategy (afr.com).
43. NAB shareholders call for bank to plug climate transition plan gaps — Capital Brief.
44. We did not have access to the various court registries. Therefore, we relied solely on information that was publicly available.
45. [2023] FCA 1227.
46. (2022) 291 FCR 311 ([2022] FCAFC 35).
47. We note that in ACCR v Santos the NGO applicant has made allegations of this nature against Santos
48. Cases of this type have been filed in the USA. For example, State of Rhode Island v Chevron Corp (PC-2018-4716); and City of Annapolis v BP PLC (C-02-CV-21-000250);
49. Cases of this type have been filed in the USA. For example, The People of the State of New York v JBS USA Food Company (450682/2024).
DISCUSSION OF DATA AND TRENDS
Cases per jurisdiction
Forty-three climate litigation cases were identified as having been or continue to be on foot in 2024.50 About 93 percent of these cases (40 cases) were commenced in our domestic courts and tribunals, with the remaining 7 percent (three cases) commenced in international tribunals.
In our domestic courts, about 60 percent of the cases (25 cases) were commenced in the Federal jurisdiction (predominantly the Federal Court of Australia and the Administrative Review Tribunal). New South Wales, Queensland, Victoria and the Australian National Contact Point (AusNCP) had the next most number of cases with just under 7 percent each (three cases). The Australian Capital Territory, Western Australia and the Northern Territory had just over 2 percent each (one case in each jurisdiction).51 There were no cases identified in South Australia and Tasmania.
In the international tribunals, about 5 percent (two cases) were commenced in the World Trade Organization and just over 2 percent (one case) were commenced in the United Nations.52
Types of claims
The majority of domestic cases (just under 40 percent or 17 cases) remain administrative in nature, either judicial or merits review. The greenwashing claims under the misleading or deceptive conduct provisions of both the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) constitute the next largest group of cases, with just under 14 percent (six cases). Criminal cases against climate protesters also represented just under 14 percent (six cases). Close behind, with just under 12 percent (five cases) were cases commenced under various environmental legislation. There is one negligence case and one case under strata scheme legislation (just over 2 percent).
The predominant international climate change litigation cases in 2024 with an Australian connection were brought under the OECD Guidelines (three cases, about 7 percent), international agreements (two cases, about 5 percent) and the Paris Agreement and various UN Conventions (one case, about 2 percent).
50. See fn.1, above.
51. The cases in Western Australia and the Australian Capital Territory were criminal cases.
52. United Nations Special Rapporteur on Human Rights and the Environment; Special Rapporteur on the rights of Indigenous peoples; and Special Rapporteur on the rights of persons with disabilities.
Cases per legal practice area
The 43 climate change litigation cases were spread across a number of legal practice areas.53 Cases in the Human Rights practice area accounted for the largest number of climate litigation cases in 2024 (nine cases, about 21 percent). A number of refugee protection visa claims (seven cases) before the ART/AAT, in which climate change was raised as a basis for the grant of a protection visa, provides the reason why the Human Rights practice area accounted for the most cases in 2024. A grouping which runs across the regulatory54 and private55 greenwashing cases together account for about 19 percent (eight cases). The Criminal Law practice area came in next with just over 16 percent (seven cases). These cases were predominantly prosecutions against climate protesters. International Law climate litigation cases came in next with just under 14 percent (six cases). The Land Use practice area was next with about 12 percent (five cases). Environment (Cth and State Legislation) and Energy Law (Energy regulators) came in at just over 9 percent (four cases) and 7 percent (three cases), respectively. There was just over 2 percent (one case) in the Class Action climate litigation context in 2024. There were no cases identified in the practice areas of Construction and Renewables, Insolvency, Insurance,
Law and Taxation Law.
Cases per industry
The Oil & Gas Industry (about 21 percent (nine cases)) closely followed by the Mining Industry (about 19 percent (eight cases)) had the most number of climate litigation cases in 2024.56 The Financial Products & Services Industry and the Forestry Industry were next with each having about 7 percent (three cases). The Electricity Industry and Renewable Energy Industry were next with each having about 5 percent (two cases). The Banking, Real Estate and Waste industries were next with each having just over 2 percent (one case). Interestingly, there were no cases identified in industries such as Agriculture, Aviation, Construction, Fashion, Insurance, Manufacturing, and Transport.
53. A few of cases were identified in more than one practice area. To avoid double counting, we have not attributed cases to more than one practice area. This fact reveals that cases are capable of more than one characterisation which means that cases per legal practice area could show differing numbers depending on characterisation.
54. There were about 7 percent (three cases) Regulatory (ASIC) and about 2 percent (one case) Regulatory (ACCC) climate litigation cases in 2024.
55. There were a little over 9 percent (four cases) Non-Regulatory climate litigation cases in 2024.
56. Thirteen of the 43 cases do not fit within a particular industry and so have been excluded. For example, the seven claims by refugees for protection visas were excluded on this basis.
Types of litigants
Non-governmental organisations (38 percent) and natural persons (33 percent) commenced the most number of climate change litigation cases. Regulators57 and the various State governments (including departments and agencies) each commenced about 9 percent of the climate change litigation cases. Closely following behind were unlisted companies with about 7 percent (three cases). No proceedings were commenced by listed companies, shareholders or the Commonwealth.
The Federal Court of Australia was by far the forum attracting the most cases, with about 42 percent (18) of cases commenced in that court in 2024. The ART/AAT was next with approximately 16 percent (seven) of the cases having been commenced in that jurisdiction. These cases concerned protection visa appeals in which climate change was a factor advanced in support of the granting of those visas. The remaining cases were spread widely across a range of domestic and international courts and tribunals.
and natural persons were next with each recording approximately 9 percent (four cases). Regulators and Non-governmental
(2
Relief sought
The types of relief sought in the 43 climate change litigation cases varied. Appeals against conviction by climate protesters, declarations and injunctions, grant of protection visas, civil and pecuniary penalties to name a few. Declarations (30 percent) and injunctions (14 percent), quashing decisions (12 percent) and civil/pecuniary penalties (9 percent) were the most claimed relief. In the domestic sphere, damages were claimed in only one case.58
CONSTRUCTION LAW AND RENEWABLES
By MARTIN SCOTT KC, CARLA AUMANN and JAMES McNICOL SMITH
AUSTRALIA HAS MORE than 12 gigawatts of installed renewable energy generation and 22 gigawatt hours of storage capacity.1
In 2024, $3.8 billion was invested in renewable energy generation and $100 million was invested in energy storage.2 Considering the present and anticipated impacts of climate change, investment in renewable energy projects and associated infrastructure in Australia will increase. Investment in traditional resources projects is also continuing, with a number of mining and projects pursuing expansion plans.
Given the scale of investment across resources and renewables sectors, it is surprising to report that in 2024 there were no Australian climate change litigation cases concerning the areas of construction law and renewables—that is, cases involving a legal cause of action (a) that could be fairly described as belonging to construction law, or (b) arising directly in respect of the design or construction of renewable energy projects. This is because cases reported on in this Review must involve material issues of climate change science, policy or law and must have a serious impact on the volume of greenhouse gas emissions or on the community’s resilience to climate change.3
While climate-based litigation continues to feature construction and renewables projects as its factual setting, the causes of action by which those cases are pursued arise in other areas of law. Most frequently in Australia, litigation concerning participants in the construction and resources sectors arises in the context of challenges to environmental approvals for projects, brought by environmental groups and on occasion by traditional owners. Regulators have also been increasingly called upon to regulate alleged ‘greenwashing’ by industry participants.
However, at present climate change is not a central issue in disputes arising during the performance of construction and renewables contracts in Australia. Litigation about infrastructure projects continues to feature the usual suite of claims for delay and disruption, liability for defective design or construction work, unforeseen environmental conditions, security for performance, misleading representations, negligence and insurance. Greenhouse gas emissions and climate change resilience are not a feature of these disputes.
There is, of course, scope that climate change will drive an increase of certain types of construction claims on projects in Australia. For example, climate change is
MOST FREQUENTLY IN AUSTRALIA, LITIGATION CONCERNING
PARTICIPANTS IN THE CONSTRUCTION AND RESOURCES SECTORS ARISES IN THE CONTEXT OF CHALLENGES TO ENVIRONMENTAL APPROVALS FOR PROJECTS, BROUGHT BY ENVIRONMENTAL GROUPS AND ON OCCASION BY TRADITIONAL OWNERS.
expected to lead to an increase in the incidence of natural disasters such as bushfires, floods or cyclones, which depending on the drafting of individual contracts may trigger rights pursuant to force majeure provisions. The allocation of risk for such events is also increasingly likely to be dealt with outside force majeure provisions, including through an express allocations of risk or specific requirements for insurance cover. To the extent those claims are already being made, we expect they are being determined privately between the parties rather than by determination of the courts.
The construction law and renewables cases reported on in this section of the Review include:
» an objection by an environmental group to a government decision permitting the expansion of a coal mine;4
» an enforceable undertaking given by a manufacturer of energy storage systems to the ACCC to alert consumers to potential faults in solar storage batteries;5
» judicial review of a government decision to refuse a feasibility licence to an offshore wind project in Gippsland;6
» judicial review sought by an environmental group of a government decision to expand the Hunter Valley coal mines;7
» judicial review sought by an environmental group of a government decision to approve a thermal and metallurgical coal mine;8
» an objection by an environmental group to a government decision to grant a water licence to a coal mine (following earlier, unsuccessful, objections to the grant of certain mining leases and amendment of an environmental authority);9 and
» a consumer protection claim by an environmental group against an oil and gas company over representations that natural gas is a clean fuel and that the company has a credible pathway to net zero emissions by 2040.10
These decisions illustrate that there is heavy regulation of energy and renewables projects at multiple levels. As with all markets, there is a trade-off between the imposition of regulation and the commercial viability of projects— particularly those with a long lead time. Very few companies have the balance sheet, or the appetite, to invest significant capital into the development of an energy project only to have that project stalled by or tied up in regulatory proceedings. We can therefore expect that regulation will be streamlined to enable otherwise viable projects to proceed. If not, major investors will depart our market.
Climate change will also impact construction law in other ways. Building and design standards (including the Australian Standards) are often expressed by frequency of exceedance, such as a one-in-100year event. It is distinctly possible that the world’s increasingly unpredictable climate will drive changes to those standards in the future. Were that to happen, there will be significant impacts to cost and risk for all market participants, including consumers. The insurance market will also suffer distortions and it is plausible if not likely that certain parts of Australia will be rendered uninhabitable because the cost of construction is too high or insurance is not available or both. While regulatory disputes about construction and energy projects will continue in the immediate future, we also expect disputes to arise in relation to changes to building and design standards in the next five years.
4. Rolleston Coal Holdings Pty Ltd v Environmental Advocacy of Central Queensland Inc
5. Enforceable undertaking given by LG Energy Solution Ltd (Korean Corporation Number 110111-7701356) and LG Energy Solution Australia Pty Ltd.
6. Seadragon Offshore Wind Pty Ltd v Minister for Climate Change and Energy
7. Hunter Environment Lobby Inc v Minister for the Water and Environment.
8. Australian Conservation Foundation v Whitehaven Coal
9. Oakey Coal Alliance v Department of Regional Development, Manufacturing and Water and New Acland Coal, and see New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. & Ors (No 2) [2021] QLC 44.
10. Australasian Centre for Corporate Responsibility v Santos Ltd
CRIMINAL LAW
By DR JULIAN MURPHY
THE MAJORITY OF cases at the intersection of climate change and criminal law in 2024 concerned the prosecution of protestors. This is not entirely new. In relatively recent years, there have been a number of high-profile prosecutions of protestors, often for ‘locking on’ to mining machinery. One case reached the High Court: Grajewski v Director of Public Prosecutions (NSW). 1 Others prompted legislative change targeting protestors. Some of that legislative change in turn generated litigation, including a successful constitutional challenge in New South Wales: Kvelde v State of New South Wales.2
Of the 2024 protest cases, they typically raised either or both of: (a) issues concerning the severity (or leniency) of sentencing protestors; (b) novel defences, such as reliance on the climate crisis as a sudden or extraordinary emergency. In both of these respects, the case law in 2024 represents a continuation of a trend that can be discerned in previous years. In 2019 and 2020, a number of cases considered the proper approach to sentencing climate protests, including Avery & Ors v Queensland Police Service3 and EH v QPS; GS v QPS.4 In superior courts, more recent cases concerning the severity of sentence include Edwards v Police; Weber v Police; Homewood v Police.5 On the issue of novel defences, in 2020 in the decision of Rolles v Commissioner of Police,6 the accused unsuccessfully mounted a sudden or extraordinary emergency defence, including in reliance on expert evidence as to the impacts of climate change.
These trends are also apparent abroad. For example, in the United Kingdom, the Court of Appeal recently considered the defence of sudden or extraordinary emergency in a case arising from a climate change protest: Attorney General’s Reference (No 1 of 2023).7
1. [2019] HCA 8; (2019) 264 CLR 470.
2. [2023] NSWSC 1560.
3. [2019] QDC 21.
4. [2020] QDC 205.
5. [2023] SASC 170.
6. [2020] QDC 331.
7. [2024] EWCA Crim 243; [2024] 1 WLR 3205.
8. [2024] NSWLEC 97.
9. [2024] NSWLEC 91.
10. [2024] NSWLEC 81.
A less prominent strand in the 2024 case law also warrants mention. This line of cases concerns civil proceedings in which injunctions are sought for the anticipated contravention of statutory schemes that impose both criminal and civil penalties. The cases in this category show courts grappling with difficult questions of statutory construction of criminal offence provisions, and also considering the standard of proof applicable to potentially criminal conduct raised in criminal proceedings.
It seems likely that both the protest cases and the injunction lines of cases will continue into 2025.
It should be noted that there were a number of cases in 2024 concerning the prosecution of broadly described ‘environmental offences’, including in the context of coal mining, waste disposal and illegal logging. See, respectively, Environment Protection Authority v Maules Creek Coal Pty Ltd (No 3)8; Environment Protection Authority v Hughes9; Environment Protection Authority v Green.10 As none of these cases concerned offence provisions concerning greenhouse gas emissions, they have not been included in this year’s Review. However, it can be expected that these regulatory prosecutions will continue and may in future years become more centrally concerned with defendants’ contributions to emissions. In this respect, it is noted that there has been an attempt at the international level to recognise ecocide as an international crime (that attempt is made by Vanuatu, Fiji and Samoa by a submission to the International Criminal Court on 9 September 2024). The domestic and International Criminal Court of such ‘climate crimes’ will likely be a matter attracting further judicial attention in the years to come.
AS A BROADER OBSERVATION, IT APPEARS THAT COURTS CONSIDERING MATTERS INVOLVING ENERGY REGULATORS ARE INCREASINGLY TAKING JUDICIAL NOTICE OF CLIMATE CHANGE. THIS MAY REDUCE THE BURDEN ON NGOS AND OTHER CLIMATE ACTIVISTS TO PROVE ISSUES RELATING TO CLIMATE CHANGE.
ENERGY LAW (ENERGY REGULATORS)
By STEPHEN PARMENTER KC, WILLIAM STONE and KESS DOVEY
General observations on climate change litigation cases involving Energy Regulators
THERE ARE PRESENTLY very few examples of climate change litigation cases involving energy regulators in Australia.
In 2024, and historically, energy regulators have been involved in climate change litigation cases where their decisions have been sought to be impugned. Judicial review is a common form of challenge, to allege that the decision-maker did not make the decision properly.
This includes where a regulator’s decision, such as one in relation to a licence review, has the effect of allowing carbon-intensive activities to continue. In Maules Creek Community Council Inc v Environment Protection Authority, a community group challenged a licence review undertaken by the Environment Protection Authority (EPA) in respect of the Maules Creek Coal Mine. It was alleged that the licence review decision had not been made lawfully, in that, amongst other things, it did not address the pollution caused by air pollutants and
did not require practical measures to be taken to mitigate that pollution and to protect the environment from harm as a result of that pollution.1 The claim failed on the basis that the applicant had not established that the EPA had failed to consider these matters in undertaking the licence review.2
A regulator’s decision has also been challenged where the outcome of the decision is the opposite, namely where activities that may cause environmental impact are prohibited. A proceeding was brought in 2024 challenging the Victorian Minister for Climate Change and Energy’s decision to refuse to issue a feasibility licence for an offshore wind farm. The licence was refused on grounds including concerns about the project’s environmental impacts.3 The proceeding is still on foot.
It is unclear whether climate change litigation involving energy regulators will see growth in Australia in 2025 and beyond. In the context of litigation by or against NGOs and other climate activists, cases involving energy regulators are few: for example, we have not identified a decision in 2024 where a party to climate change litigation successfully obtained relief to impugn an energy regulator’s decision. Entities that actually
1. [2024] NSWLEC 71 at [1], [14], [16], [104].
2. [2024] NSWLEC 71 at [157]-[158].
3. Seadragon Offshore Wind Pty Ltd v Minister for Climate Change and Energy (Federal Court NSD777/2024), as reported at https:// law.app.unimelb.edu.au/climate-change/case.php?CaseID=1027&subjectID=5&id=5.
engage in the regulated activities, such as oil and gas companies, may perhaps be more prominent targets for such litigation. It is also possible that regulators are aware of the increased scrutiny that they are under in making their decisions which include climate change issues. This may lead to more careful consideration and elucidation of their reasoning and decision-making, rendering it more difficult for their decisions to be impugned.
Looking overseas, climate change litigation involving regulators does not presently seem to be particularly widespread, although there are some examples. In the United States, criminal prosecutions have been commenced against persons alleged to have defrauded carbon credit schemes.4 In Brazil, a proceeding was commenced by the conservative Democratic Renewal Party seeking to challenge the constitutionality of Brazil’s biofuel policy and alleging that it discriminates against fossil fuel distributors.5 The latter case emphasises that climate change litigation involving energy regulators and regulations may not only be brought by those seeking outcomes that are restrictive on carbon-intensive activities, but may also be brought by those advocating for less onerous regulations.
As a broader observation, it appears that courts considering matters involving energy regulators are increasingly taking judicial notice of climate change.6 This may reduce the burden on NGOs and other climate activists to prove issues relating to climate change.
Outside the immediate context of litigation, energy regulators continue to be active in taking steps to seek to address issues related to climate change. For example:
» on 26 June 2024, the Australian Energy Market Operator released a 25-year roadmap to transition the National Electricity Market (NEM) to net zero by 2050. The Integrated System Plan (ISP) confirms that renewable energy connected with transmission
and distribution, firmed with storage, and backed up by gas-powered generation is the lowest-cost way to supply electricity to homes and businesses as Australia transitions to a net zero economy. Urgency to renew the NEM is being driven by the progressive closure of Australia’s remaining coal-fired power stations. Ten large coal-fired power stations have closed since 2012, and the ISP projects that 90 percent of today’s capacity will be closed by 2035 and all before 2040. The centrepiece of the plan is the optimal development path (ODP)—a mix of replacement grid-scale generation, storage, and transmission, with an annualised capital cost of $122 billion to 2050. The ODP is the least cost path to meet Federal and State government energy policies on emissions reductions;7
» on 2 October 2024, the Clean Energy Regulator announced that total added renewable energy capacity could exceed 7 gigawatts (GW) this year—a combination of an upgraded estimate of 3-4 GW large-scale wind and solar reaching first generation and an estimated 3.1 GW of small-scale rooftop solar, according to the Clean Energy Regulator’s Quarterly Carbon Market Report for Q2 2024;8
» on 17 October 2024, the Australian Energy Market Commission (AEMC) unveiled its inaugural report “A Consumer-Focused Net Zero Energy System”, offering insights into potential pathways for Australia’s energy transition through to 2050 and beyond. The report serves as a strategic guide for the AEMC in prioritising its work program within the broader context of the energy transition. As the body responsible for making and amending rules for the National Energy Market, the AEMC aims to provide stakeholders with clarity on how it is thinking about the energy transition.9
It seems possible that such steps by energy regulators, and the changes which continue to occur in the energy regulation area, may lead to more climate change litigation in future.
4. United States v Newcombe docket number 24-cr-567 (as reported at https://climatecasechart.com/case/united-states-vnewcombe/); United States v Steele docket number 1:24-cr-00572 (as reported at https://climatecasechart.com/case/united-statesv-steele/).
5. ADI 7596 (RenovaBio and Unlawful Interference in Economic Activity) (as reported at https://climatecasechart.com/non-us-case/adi7596-renovabio-and-unlawful-interference-in-economic-activity/).
6. See, e.g., Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd [2024] NSWLEC 21 at [126]; Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action [2024] FCA 317 at [57].
7. (As reported at https://aemo.com.au/newsroom/media-release/energy-roadmap-lights-the-way-to-net-zero.)
8. (As reported at https://cer.gov.au/news-and-media/media/2024/september/new-large-scale-renewables-strengthen-according-tolatest-quarterly-carbon-market-report.)
9. (As reported at https://www.aemc.gov.au/news-centre/media-releases/aemc-explores-pathways-australias-net-zero-energyfuture.)
ENVIRONMENT (CTH AND STATE ACTS)
By ZOE MAUD SC and SOPHIE MOLYNEUX
JUDICIAL REVIEW PROCEEDINGS challenging decisions of the executive government—in particular in relation to mining and forestry operations— continue to be a means adopted by local community organisations to seek to incorporate climate change considerations within the decision-making framework of environmental legislation.
In recent years, opponents of new fossil fuel generating projects have had some success in preventing such projects through decisions under environmental legislation, particularly at the State level. For example, in 2019, the NSW Land and Environment Court, exercising
1. [2019] NSWLEC 7; (2019) 234 LGERA 257.
the Minister’s function as consent authority under the Environmental Planning and Assessment Act 1979 (NSW), refused a development application for the Rocky Hill Coal Project near Gloucester. The costs of the proposed open cut coal mine, including the emission of greenhouse gases from the transportation and combustion of the coal (Scope 3 emissions), were found to exceed the benefits: Gloucester Resources Limited v Minister for Planning 1 However, attempts to incorporate consideration of potential climate change impacts of new fossil fuel generating projects into the decision-making framework under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) have proven more difficult.
IN THE ABSENCE OF SIGNIFICANT REFORM TO THE EPBC ACT, THERE MAY BE LIMITED SCOPE FOR FUTURE CHALLENGES TO DECISION MAKING UNDER THAT ACT IN RELATION TO FOSSIL FUEL PROJECTS BASED ON CLIMATE CHANGE IMPACTS TO MATTERS OF NATIONAL ENVIRONMENTAL SIGNIFICANCE.
» In May 2024, the Full Federal Court dismissed an appeal from a decision of McElwaine J in litigation known as the Living Wonders case: Environment Council of Central Queensland Inc v Minister for the Environment and Water 2
McElwaine J had refused relief in two judicial review proceedings challenging decisions of the Commonwealth Minister for Environment and Water under the EPBC Act. A delegate of the Minister had made “controlled action decisions” pursuant to s 75(1) of the EPBC Act in relation to a proposed action to extend underground mining operations at the existing Narrabri mine in New South Wales, and a proposed action to extend an open cut coal at Mt Pleasant. Neither of the controlled action decisions had identified impacts on matters of national environmental significance arising from the greenhouse gas emissions associated with the extension of each of the coal mines as “relevant impacts”.
The Minister was asked to revoke each of the controlled action decisions on the basis of new material, and to substitute a new decision. In refusing the request to revoke the controlled action decisions, the Minister had considered information indicating that one of the mine extension proposals would contribute to a net increase in global greenhouse gas emissions and global average temperature of approximately 0.00024oC.
The Minister found that the amount of coal to be combusted from the proposed action, and the possible increase in net global greenhouse gas emissions and global average temperature that would result from combusting this amount of coal, were very small. The
proposed action therefore would not meet the statutory threshold of being a “substantial” cause of the physical effects of climate change on the relevant matters of national environmental significance. The Full Court rejected all grounds of appeal.
Importantly, the judgment of Mortimer CJ and Colvin J noted that s 527E of the EPBC Act, and its approach to “indirect impacts” was ill-suited to respond to the indirect impacts from a global phenomenon such as climate change. Their Honours said (at [144]):
This proceeding, and the merits decision-making underlying it, might be said to raise the question whether the legislative scheme is fit for purpose in this respect.
The concerns raised by two members of the Court in this case echo more general concerns regarding the effectiveness of the EPBC Act to protect nature raised by Professor Graeme Samuel AC in the Second Independent Review of the EPBC Act, released in 2019. This year, the Australian Government has introduced legislation to reform the EPBC Act to establish Environment Protection Australia and the Head of Environment Information Australia, and to strengthen powers to ensure effective compliance and enforcement of national environmental laws.3 It is unclear at present whether the legislation will pass.
In the absence of significant reform to the EPBC Act, there may be limited scope for future challenges to decision making under that Act in relation to fossil fuel projects based on climate change impacts to matters of national environmental significance.
2. [2024] FCAFC 56. The High Court has refused special leave to appeal.
3. Department of Climate Change, Energy, the Environment and Water website, accessed 4 November 2024: https://www.dcceew.gov.au/environment/epbc/epbc-act-reform. The High Court has refused special leave to appeal.
INTERNATIONALLY, AND IN FOREIGN DOMESTIC TRIBUNALS, THERE IS A GROWING FOCUS ON THE INTERSECTION BETWEEN CLIMATE CHANGE AND THE GROUNDS FOR REFUGEE STATUS UNDER THE REFUGEES CONVENTION.
HUMAN RIGHTS
By EMRYS NEKVAPIL
SC
Queensland Land Court
IN WARATAH COAL Pty Ltd v Youth Verdict Ltd1, the Queensland Land Court decided that, in performing its function under both the Mineral Resources Act 1989 (Qld) and the Environmental Protection Act 1994 (Qld) of making a recommendation to the Queensland Executive as to whether a coal mine should be approved, the Land Court is a “public entity”, within the meaning of the Human Rights Act 2019 (Qld), and as such is bound by the obligations in s 58 of that Act, including the requirement to give proper consideration to relevant human rights.
Accordingly, in Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6)2, the Land Court gave careful consideration to relevant rights, being those impacted by climate change: life, cultural rights of Aboriginal and Torres Strait Islander Peoples, children’s rights, property, and non-discrimination.
Since that decision, the Land Court has given proper consideration to those rights in all matters that concern coal mines, or other projects resulting in export and combustion of fossil fuels. For example, this was done by President Stilgoe OAM, in BHP Coal Pty Ltd v Chief Executive, Department of; Environment, Science and Innovation3, albeit without any active objector as a contradictor to lead evidence or making submissions. This demonstrates the need for the Land Court to acquit its obligations under the Human Rights Act, whether or not an issue is in controversy between parties (and whether or not there is a contradicting party).
The only present matter, of which I am aware, in which these matters will be fully contested on expert and lay evidence, and submissions, is the Whitehaven matter described above. However, all pending proceedings of that kind, in that court, will require the Land Court to discharge its obligations under the Human Rights Act, requiring consideration of the impacts of climate change on the relevant human rights.
Administrative Review Tribunal— protection visas—refugees from lowlying islands
In 1916631 (Refugee)4 , 2402927 (Refugee)5 and 2314840 (Refugee)6 , the former Administrative Appeals Tribunal took account of climate change impacts in considering a merits review of a decision to refuse a protection visa, where the applicant was a national of a low-lying island nation threatened by climate change (Fiji, Vanuatu and Tonga).
Internationally, and in foreign domestic tribunals, there is a growing focus on the intersection between climate change and the grounds for refugee status under the Refugees Convention. This may be expected to increase exponentially, as large areas of the world become unliveable, especially in poorer countries where the government has been unable to take any effective action to enforce mitigation by the wealthier countries who are responsible for greenhouse gas emissions, and do not have adequate funding for adaptation.
There must be other cases of this kind presently before the Administrative Review Tribunal, but not yet heard.
Protest cases
There are presently numerous criminal prosecutions of climate protesters before the Magistrates Court of Victoria. One is listed for hearing in February 2025, with the others being adjourned to await its outcome. The defendant has raised a defence of sudden or extraordinary emergency, under s 322R of the Crimes Act 1958 (Vic).
As the actual effects of climate change become more visible to the people, and have an exponentially increasing adverse impact on their daily lives, it may be expected that the gap between rational action and action taken by Australian Federal and State governments will give rise to greater protest action. Based on overseas experience, and cases already determined in Queensland and Western Australia, it seems likely there will be a rise in climate change-related grounds of defence, and pleas in mitigation on sentence.
1. [2020] QLC 33.
2. [2022] QLC 21.
3. [2024] QLC 7.
4. [2024] AATA 3961.
5. [2024] AATA 2294.
6. [2024] AATA 1145.
INSOLVENCY
By STEWART MAIDEN
KC
and PANAGIOTA
PISANI
THE FOLLOWING DISCUSSION assumes familiarity with Australian insolvency and restructuring law.
The authors have not identified any Australian insolvency-related climate change litigation cases which settled or remained on foot in 2024.1 It follows that no themes can be distilled from the cases. For that reason, to forecast what the likely intersection of climate change issues and insolvency law in Australia might look like in 2025, one must look to general trends in business, regulation and litigation.
Much of what is considered to be ‘climate risk’ is actually regulatory or business risk created by changes in the behaviour and expectations of regulators and powerful private sector actors (the latter themselves often acting in response to regulators). Those changes are designed to respond to a widely accepted understanding that the emission of carbon dioxide into the atmosphere must be reduced to prevent irreversible environmental harm. As such, climate change issues form part of a broader suite of environmental issues, and it is useful to consider them in that context.
Studied in that light, the interaction between climate change issues and insolvency may be broken down
into two components. The first is the extent to which environmental issues can influence insolvency and restructuring processes in Australia. The second is the impact of climate risk on a company’s financial health.
Impact of climate and broader environmental issues in insolvency and restructuring
The specific impact of environmental issues on insolvency and restructuring procedures in Australia is limited at present. We will consider three particular possibilities.
First, environmental liabilities are not generally given priority under Australia’s statutory insolvency and restructuring regimes. But some exceptions have recently begun to emerge. For example, ss 297 and 297A of the Environment Protection Act 2017 (Vic) permits the Victorian Environment Protection Authority to recover from a company reasonable costs incurred by the Authority in exercising its regulatory powers, purportedly to the exclusion of certain parts of the insolvency regime in the Corporations Act 2001 (Cth) (Corporations Act)—although those sections have not been tested in any reported judgment as at the time
1. The scope of our research was confined to investigating cases which had been reported publicly (whether due to a decision being published, or via press reports, or through some other means). The project was not resourced to interrogate court registries to determine the existence and extent of ongoing litigation which has not reached the public eye.
of writing. More generally, where the discharge of an environmental obligation is secured over the company’s property,2 the regulatory authority holding the security will have the rights of a secured creditor. Similarly, a liability might attract a de facto priority if it is paid in the course of a voluntary administration, because provisions giving priority to administration costs are commonplace in deeds of company arrangement (DOCAs).
Secondly, in liquidation, a liquidator can disclaim onerous property (including property burdened by environmental liabilities),3 releasing the company from its rights, interests and liabilities in the disclaimed property, and leaving any person aggrieved by the disclaimer to prove as an unsecured creditor.4 Litigation concerning the effects of disclaimer over assets burdened by environmental obligations has occurred with increasing frequency in recent years.5
Practically, the impact of those first two matters may be to increase complexity and reduce the returns available to other creditors (including employees and other priority claimants) in the liquidation or restructuring of businesses with ongoing or emerging environmental liabilities.
Thirdly, it is possible that an attempt to restructure an insolvent company via a DOCA or a scheme of arrangement might raise environmental concerns (for example, assets might be divested as part of a restructure, leaving future rehabilitation or abatement obligations unfunded). But standing to challenge a DOCA is restricted to the company, its creditors, ASIC and persons whose material rights and economic interests are or might be substantially affected by the deed.6 Third parties attempting to raise environmental objections to a DOCA are unlikely to be given leave to intervene. And in so far as schemes of arrangement are concerned, the only public policies which are relevant to a court’s authorisation of creditors’ meetings and scheme documents are those relevant to the interests
of members, creditors, future counterparties and future investors.7 While it is unlikely that an environmental regulator or advocacy group would have standing to oppose a scheme for a public interest purpose, their input might be relevant if, practically speaking, the future success of the business in question were to depend on regulatory compliance or an absence of challenge from advocacy groups.
Impact of climate / environmental issues on a company’s financial health
A recent paper published in the British Journal of Management suggested that climate exposure will affect a firm’s bankruptcy risk.8 Real world trends suggest that such a hypothesis might be reflected in future insolvency statistics. The potential impact of climate risk has been recognised by regulators. For example, the Reserve Bank of Australia and the Australian Prudential Regulation Authority issued a combined statement in 2021 which noted that the physical impact of climate change will affect economic output and, as a driver of change in the value of certain assets and income streams, will pose a risk to financial institutions and financial stability.9 More directly, Australian banks have begun to factor climate risk into business lending decisions. For example, in November 2023 the Australia and New Zealand Banking Group Limited elevated climate to a “material risk”, such that climate risk is now assessed, managed, monitored and reported on-par with risks such as credit risk.10
Further, as economic decisions are more and more driven by decarbonisation and the transition of Australia’s energy industry from fossil fuel dependence towards renewables (along with the regulatory imperatives designed to achieve those objectives) there will inevitably be insolvency impacts where businesses involved in those industries fail. The emergence of complex derivative markets created to exploit the opportunities created by
2. See e.g. Protection of the Environment Operations Act 1997 (NSW), s 250(1)(h) and Part 8.4 of the Environment Protection Act 2017 (Vic).
3. Corporations Act, Part 5.6, Div 7A.
4. Corporations Act, s 568D(2).
5. See e.g. Longley v Chief Executive, Dept of Environment and Heritage Protection [2018] 3 Qd R 459 (Court of Appeal); Australian Sawmilling Co Pty Ltd (in liq) v Environment Protection Authority (2021) 64 VR 523 (Court of Appeal) and David Barry Logistics Pty Ltd v State of Victoria (2021) 65 VR 233 (M. Osborne J).
6. Sev.en Gamma a.s. v IG Power (Callide) Pty Ltd (Administrators Appointed) [2024] FCA 30, [91]-[109] (Derrington J).
7. Re CSR Ltd (2010) 183 FCR 358, 375 [54] (Keane CJ and Jacobsen J), 381 [82] (Finkelstein J).
8. Fan Feng et al, “Climate Change Exposure and Bankruptcy Risk”, (2024) 35(4) British Journal of Management, 1843–1866.
10. https://bluenotes.anz.com/posts/2024/august/anz-news-kevin-corbally-climate-risk. Each of the other three ‘big four’ banks have similar policies: see https://www.commbank.com.au/content/dam/commbank-assets/investors/docs/results/fy24/CBA-2024Climate-Report.pdf, at 97 (CBA); https://www.nab.com.au/content/dam/nab/documents/reports/corporate/2023-climate-report. pdf, at 12 (NAB) and https://www.westpac.com.au/content/dam/public/wbc/documents/pdf/aw/sustainability/wbc-2023-climatereport.pdf, at 39 (Westpac).
AS
ECONOMIC DECISIONS ARE MORE AND MORE DRIVEN BY
DECARBONISATION AND
THE
TRANSITION OF AUSTRALIA’S
ENERGY INDUSTRY FROM FOSSIL FUEL DEPENDENCE TOWARDS RENEWABLES (ALONG WITH THE REGULATORY IMPERATIVES DESIGNED TO ACHIEVE THOSE OBJECTIVES) THERE WILL INEVITABLY BE INSOLVENCY IMPACTS WHERE BUSINESSES INVOLVED IN THOSE INDUSTRIES FAIL.
new energy markets and regulatory regimes compounds those possibilities. The liquidation of Emerging Energy Solutions Pty Ltd in 2024 is a case in point. The company was in the business of purchasing “small-scale technology certificates” from solar installation companies and onselling them to energy retailers, who are compelled to purchase certain volumes of such certificates under the Renewable Energy (Electricity) Act 2000 (Cth). When it was wound up, the company owed nearly $90 million, much of it to small solar installers.11 Such collapses create a risk of insolvency contagion, ultimately risking the health of the energy transition industry itself.
Conclusion
While climate change and environmental impact are not expressly recognised by Australia’s insolvency system, environmental laws are intruding in that regime
in ways which will impact on its operation. Further, the abatement of emissions and associated increased regulatory burdens have become a cost of doing business, as companies comply with increasing regulation of their own environmental impact and that of their customers.
Financial institutions are also amending lending criteria to cater for regulatory concerns around the potential impact of climate on business operations and asset values. The end result is that such concerns have become self-fulfilling. And as climate-related industries become a larger part of the economy, business failure in those industries will have increasing importance to the health of the economy as a whole. All of those things will inevitably drive an increase in litigation in the medium to long term, and that increased litigation will, one way or the other, be climate-related.
11. See https://www.abc.net.au/news/2024-10-05/solar-businesses-chase-debts-in-complex-rebate-scheme/104413810.
INSURANCE LAW
By DR ANDREW HANAK KC and VERONICA HOLT
Introduction
The insurance industry in Australia is aware of the impact of climate change on its business. In 2022, the Insurance Council of Australia published the Climate Change Roadmap, a document intended to provide a framework for Australian insurers to cut greenhouse gas emissions.1 A year on from the launch of that roadmap, 85 percent of members of the Insurance Council who were surveyed reported setting overall net zero targets by 2050 or sooner.2
In Australia in this calendar year there has been an absence of cases in the insurance field involving a material issue of climate change science, policy, or law.3 For the Review, we have focused on identifying how Australian insurers have been engaging with climate change risks and on the emerging trends that will impact the insurance industry in the near term.
Insurance Related Climate Change Risks
The insurance industry has long recognised that it faces several risks from the impacts of climate change. The risks which have been considered by the industry can be divided into five categories.
The first category consists of physical risks. These risks arise from increased damage caused by the physical phenomena associated with climate change.4 Damage caused by natural disasters and extreme weather events is the most often cited example of climate-related impacts.5 Physical risks impact general insurers who have underwriting liabilities exposed to these risks,6 for example property damage policies. The Insurance Council of Australia has reported that, in 2022, more than 302,000 disaster-related claims were lodged, arising from four insurance events across Australia. These events resulted in $7.28 billion worth of insured losses.7
1. Insurance Council of Australia, Climate Change Roadmap Towards a Net-Zero and Resilient Future: 2023 Update (2023) 5.
2. Ibid.
3. The Climate Change Section of the Commercial Bar Association has adopted the following definition of climate change litigation cases: “…cases brought before judicial and quasi-judicial bodies, investigations, communications by domestic and international bodies, complaints to regulators, requests for prosecution and enforcement actions that: (a) involve material issues of climate change science, policy or law; and (b) will have a serious impact on the volume of greenhouse gas emissions or on the community’s resilience to climate change (e.g. illegal deforestation and planning decisions).”
4. International Association of Insurance Supervisors, Issues Paper on Climate Change Risks to the Insurance Sector (July 2018) 15.
5. International Association of Insurance Supervisors, Global Insurance Market Report (December 2023) 49.
6. Ibid 19.
7. Insurance Council of Australia, Climate Change Action, see https://insurancecouncil.com.au/issues-in-focus/climate-change-action/.
Climate-related physical risks present unique challenges for insurers. There are difficulties involved in accurately assessing the prevalence of weather-related disasters and the extent of any damage associated with a particular weather-related event. Historical climate data used to make these assessments can be inaccurate. This makes the pricing of physical risks particularly difficult for insurers.
In the second category are economic risks. Economic risks will arise if there is inaccurate pricing of insurance business. The insurance industry recognises that climate shocks can lead to economic disruptions impacting national economies and financial systems.8 The Australian Prudential Regulation Authority has stated that there is a high degree of certainty that some financial risks will materialise due to climate change.9 Insurers are exposed to these risks through the investments that they hold.10 Adverse economic impacts from climate shocks can directly impact insurers by affecting the value of assets on their balance sheets.
The third category of risks are transition risks. Transition risks are those risks arising from transitioning to a lowcarbon economy.11 Transition risks may impact the value of investment assets; they may impact the costs of doing business for insurance companies, or they may result in additional costs associated with reforms in carbonintensive industries.12 Australian insurers have been encouraged to commit to reducing carbon emissions in their operations, in their investment portfolios and their
underwriting portfolios.13 Change in each of these areas introduces transition risks.
The fourth category of climate change risks are liability risks. These are risks arising from climate-related claims under insurance policies as well as direct claims against insurers for failing to adequately manage climate-related risk.14
Liability risks arising from climate-related claims can impact several different insurance product lines. Claims might be made under general liability policies for defence costs arising from an insured’s defence of climate-related litigation.15 Socalled “adaptation claims” might arise under directors’ and officers’ insurance policies. These are claims that companies have failed to prepare for the physical, legal, and economic impacts of climate change.16 Class action proceedings where companies have failed to disclose such impacts to investors adequately are likely. Weather-related disasters may give rise to business interruption claims.17 Construction projects might be similarly impacted, which might cause insured companies to consider claims under construction risk and material damage policies.18 Professional indemnity policies might be engaged in claims against professionals who work in industries that contribute to greenhouse gas emissions. Corporate regulators have brought claims in relation to the accuracy of climate related statements made by businesses.19 Similar claims may also arise from public disclosures by businesses of their environmental or sustainability intentions. Management liability policies might be engaged in relation to such claims.
8. International Association of Insurance Supervisors, Issues Paper on Climate Change Risks to the Insurance Sector (July 2018) 14.
9. Australian Prudential Regulation Authority, Prudential Practice Guide CPG 229—Climate Change Financial Risks (November 2021) 8.
10. For example, data collected at the end of 2022 by the International Association of Insurance Supervisors identified that climaterelated assets held by global insurers represented a significant proportion of their total assets. International Association of Insurance Supervisors, Global Insurance Market Report (December 2023) 43–44. Climate related assets were defined as sovereign debt instruments, real estate and equities, corporate debt instruments, and loans and mortgages belonging to six climate-related sectors: agriculture, energy intensive, fossil fuel, housing, transport and utilities.
11. Samuel Kurian, Georgie Reid and Maxwell Sutton, Climate Change and Financial Risk, Reserve Bank of Australia (2023), https:// www.rba.gov.au/publications/bulletin/2023/jun/pdf/climate-change-and-financial-risk.pdf.
12. International Association of Insurance Supervisors, Issues Paper on Climate Change Risks to the Insurance Sector (July 2018) 15.
13. Insurance Council of Australia, Climate Change Roadmap Towards a Net-Zero and Resilient Future: 2023 Update (2023) 21.
14. International Association of Insurance Supervisors, Issues Paper on Climate Change Risks to the Insurance Sector (July 2018) 15.
15. S Doering, M Radcliffe and M Lockman, Climate Litigation Risk: Is There Shelter from the Storm? (19 September 2023) 5–6. The authors cite the Aloha Petroleum Ltd. v. National Union Fire Insurance Co. of Pittsburgh proceeding commenced in the United States District Court for the District of Hawaii (Civ. No. 22-372 (D. Haw. filed Aug. 10, 2022) where such a claim was made.
16. Ibid 7.
17. Herbert Smith Freehills, Managing climate change risks—The role of insurance (22 January 2024), https://www.herbertsmithfreehills. com/insights/2024-01/managing-climate-change-risks-the-role-of-insurance. Norton Rose Fulbright, Climate change and sustainability disputes: Insurance sector perspectives (21 July 2021), https://www.nortonrosefulbright.com/en-us/knowledge/ publications/53feff57/climate-change-and-sustainability-disputes-insurance-perspective.
18. For example, see Acciona Infrastructure Australia Pty Ltd v Zurich Australian Insurance Limited [2023] FCAFC 47 (Derrington, Button and Jackman JJ).
19. In 2024, in Australian Securities and Investments Commission v Vanguard Investments Australia [2024] FCA 308, the Federal Court of Australia made declarations that between August 2018 and February 2021, the defendant contravened the law by making misleading claims about certain environmental, social and governance exclusionary screens applied to investments in an index fund. Also see Media Release published by ASIC, ASIC wins first greenwashing civil penalty action against Vanguard (28 March 2024), https://asic.gov.au/about-asic/news-centre/find-a-media-release/2024-releases/24-061mr-asic-wins-first-greenwashingcivil-penalty-action-against-vanguard/. ASIC has taken similar enforcement action in other cases, see Australian Securities and Investments Commission v Mercer Superannuation (Australia) Ltd [2024] FCA 850 and Australian Securities and Investments Commission v LGSS Pty Ltd [2024] FCA 587. The Australian Competition and Consumer Commission has also taken enforcement action, see ACCC GLAD bags manufacturer in court for ‘50% ocean plastic’ claims, https://www.accc.gov.au/media-release/gladbags-manufacturer-in-court-for-50-ocean-plastic-claims.
HISTORICAL CLIMATE DATA USED TO MAKE ASSESSMENTS CAN BE INACCURATE. THIS MAKES THE PRICING OF PHYSICAL RISKS PARTICULARLY DIFFICULT FOR INSURERS.
The fifth category of climate-related risks are regulatory risks. The growing rise of climate-related liability risks has drawn the attention of insurance regulators in Australia20 and other jurisdictions.21 However, Australian regulators are also focused on a more challenging issue: the impact of climate risk on the availability of insurance. In 2022, the Australian Climate Council released a report called Uninsurable Nation: Australia’s Most ClimateVulnerable Places 22 The report identified the impact of extreme weather events on insurance premiums and concluded that by 2030, approximately one in every 25 Australian properties will be uninsurable.23
In May 2024, the Commonwealth Parliament established a Select Committee on the Impact of Climate Risks on Insurance Premiums and Availability. The terms of reference of the Committee include looking at the role of government to “implement climate adaptation and resilience measures to reduce risks and the cost of insurance”. 24 The Australian Prudential Regulation Authority has commenced an Insurance Climate Vulnerability Assessment designed to explore how insurance affordability in Australia could change over the medium term. 25 In light of the work being undertaken by Australian regulators, policy and regulatory changes aimed at improving insurance affordability are likely. Regulatory risks will inevitably accompany these changes.
The Emerging Trends
We consider that there are two emerging trends that can be expected in insurance-related climate litigation over the short term.
The increasing focus by regulators on the accuracy of climate-related statements made by businesses is likely to continue in the short term. This will generate further investigation and litigation as regulators pursue penalties for inaccurate corporate statements. This is likely to lead to consideration of whether management liability or other similar policies can be relied on to provide cover, at least as to defence costs. As regulators increase the number of such claims, we expect insurance-related disputes in relation to these claims to emerge.
The second area where we expect greater activity is in property damage and related liability claims. These claims typically follow significant adverse weather events, and they will naturally arise if Australia experiences another season with such weather events.
Conclusion
The insurance industry is aware of the risks posed to its business by climate change. Whilst we have not seen any climate change cases in the insurance field in 2024, the sector is exposed to litigation risk from several fronts. In the short term, we are likely to see climate litigation in the insurance sector given the increase in regulatory interest in climate change and also in respect of property damage and related liability claims.
20. For example, see Australian Prudential Regulation Authority, APRA to step up scrutiny of climate risks after releasing survey results (20 March 2019), https://www.apra.gov.au/news-and-publications/apra-to-step-up-scrutiny-of-climate-risks-after-releasingsurvey-results.
21. S Doering, M Radcliffe and M Lockman (n 15) 3.
23. Ibid 23. In the same year, the Actuaries Institute of Australia released a green paper on home insurance affordability, which noted that one million Australian households were already experiencing “extreme home insurance affordability pressure”. It concluded that premium affordability for these households deteriorated a further 20 percent under a high emissions scenario: Actuaries Institute, Home Insurance Affordability and Socioeconomic Equity in a Changing Climate, (August 2022) pp. 5 and 7.
24. Parliament of Australia, Select Committee on the Impact of Climate Risk on Insurance Premiums and Availability, Terms of Reference available at https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Impact_of_Climate_Risk_on_Insurance/ ClimateRiskonInsurance/Terms_of_Reference.
25. Letter from Australian Prudential Regulation Authority to the Chair of Select Committee on the Impact of Climate Risk on Insurance Premiums and Availability dated 2 July 2024, https://www.apra.gov.au/sites/default/files/2024-07/Submission%20-%20 Senate%20Inquiry%20on%20the%20Impact%20of%20Climate%20Risk%20on%20Insurance%20Premiums%20and%20 Availability.pdf.
INTERNATIONAL LAW
By DR DAYE GANG
New principles of public international law
THE SECTOR IS undergoing seismic developments in public international law, which will shape the role of climate litigation in private international and domestic law.
The most recent of these is the advisory opinion of the International Tribunal for the Law of the Sea (ITLOS) setting out the obligations of States Parties to the United Nations Convention on the Laws of the Sea (UNCLOS) on pollution and marine environment conservation in light of climate change. States also await the advisory opinion of the International Court of Justice (ICJ) on protection obligations, and responsibility for harm, of States in respect of climate change (ICJ Advisory Opinion).
Both advisory opinions, and the proposal to amend the Rome Statute of the International Criminal Court to enact the crime of ecocide as an international crime, are led by Pacific States. Vanuatu and Tuvalu also lead a campaign for a fossil fuel non-proliferation treaty, joined by a majority of Pacific States. They are well and truly punching above their weight in using international law as a platform for global systemic change.
Because States act in accordance with their obligations under international law, climate litigation in public or private international law, and domestic law with international dimensions, will evolve significantly over the short and medium term.
Hard international law of human rights treaties
Some legal climate advocacy has taken the form of engaging human rights treaties and special mandate holders, such as Special Rapporteurs. The challenge of framing a claim in respect of human rights treaties is that the remedy sought informs both the rights to be engaged, and the domestic remedies claimed to have been exhausted. The former would determine the treaty or special procedure to be used, and the latter usually determines admissibility.1 In Australia, counsel with international law and advocacy experience are usually briefed to settle these submissions.
Soft international law, with Australia as the seat
Corporations have long been international actors regulated by little more than the laws of their jurisdiction of incorporation. Soft law principles now create guidelines on
1. Wunna Nyiyaparli v Australia resolved in 2023; Daniel Billy et al. v Australia resolved in 2022; Communications to Australia and three Australian companies concerning the fossil fuel activities of Woodside Energy resolved in 2022
responsible business conduct for corporations, including state-owned enterprises, and States.
National Contact Points for Responsible Business Conduct (NCPs) are non-judicial, executive agencies established by governments to be grievance mechanisms for the acts and omissions of multinational enterprises alleged to contravene the OECD Guidelines for Multinational Enterprises (OECD Guidelines). Complaints may be filed in any NCP as long as there is a jurisdictional link to Australia. At its lowest, this may be that a corporation has an office in Australia. Current complaints filed in Australia are for companies based in Australia, such as BHP Group2 and ANZ Banking Group,3 or where the worksite is based in Australia, such as Port Hedland.4 Australia is a favourable location for the filing of these complaints, given that its operating language is English and its rule of law processes are robust.
Advocacy organisations may also find it useful to draw on the OECD Guidelines for public reporting on irresponsible business conduct by States and corporations.
In trade and investment, including as a third party
Investors and investor states would be able to sue in the International Centre for Settlement of Investment Disputes (ICSID) if they can argue that the effects of climate change have caused economic harm, and harmed the interests of international investors, in relation to a relevant investment. It does not appear that such a claim has been brought, but certainly there have been enough ICSID disputes in natural resources and mining for investors and investor states to start mounting these claims in areas severely affected by climate change. No doubt this will mean the deployment of emerging principles of international law in service of investor states’ financial and national interests, and investors’ national interests. Counsel could be briefed to formulate creative claims based on principles emerging from developments in public international law, especially where they would protect the economic selfdetermination of low and middle-income countries.
It is also likely that trade disputes will rise from transitions into greener energy sources. There are already World Trade Organisation (WTO) disputes among States from disagreements arising over what should be considered renewable energy sources (DS-600: European Union and Certain Member States—Certain Measures Concerning Palm Oil and Oil Palm Crop-Based Biofuels). Current cases already problematise the formulation of climate policies by energy importer States where they directly or indirectly promote regional or national protectionism. More litigation is likely to arise as more states introduce climate policies that impact existing import or export arrangements. Small states should take advantage of litigation opportunities where their exports are disadvantaged by the introduction of policies that may be protectionist, especially if other, non-protectionist, policies could have been introduced. Counsel can also be retained to advise on identifying and mitigating the risk of domestic or international litigation in the formulation and adoption of climate policies.
Applied to domestic litigation
Counsel with both domestic and international law expertise will be well-placed to challenge government decisions, arguing a failure to consider both domestic and international legal obligations when making decisions under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). For example, while Australian Conservation Foundation Incorporated v Minister for the Environment and Energy5 was eventually dismissed because of a finding that the challenge amounted to merits review, developments in public international law may create new strategies for judicial review.
Future directions for international law
As a consent-based jurisdiction, international law is constantly in development. This gives potential climate litigants a constantly shifting landscape of opportunities to remediate damage, hold polluters accountable, and further shape the actions and interactions of States.
On the public international law front, the Pacific nations and broader international community await
2. Global Legal Action Network v Anglo American Plc, BHP Group Ltd and Glencore International AG (Complaint no. 23) resolved in 2023.
3. Friends of the Earth, Egan, Dodds and Simons v ANZ Banking Group (Complaint no. 20) resolved in 2021; Australian Conservation Foundation et al. v ANZ Banking Group (Complaint no. 2) resolved in 2006.
4. Port Hedland Community Progress Association Inc v BHP (Complaint no. 24) resolved in 2021; Ralph Bleechmore on behalf of parties in Colombia v BHP-Billiton (Complaint no. 3) resolved in 2009.
5. (2017) 251 FCR 359.
VANUATU AND TUVALU ALSO LEAD A CAMPAIGN FOR A FOSSIL FUEL NON-PROLIFERATION TREATY, JOINED BY A MAJORITY OF PACIFIC STATES. THEY ARE WELL AND TRULY PUNCHING ABOVE THEIR WEIGHT IN USING INTERNATIONAL LAW AS A PLATFORM FOR GLOBAL SYSTEMIC CHANGE.
the development of accountability principles for harm committed by major polluter states, both in the ICJ Advisory Opinion and in the push to have ecocide recognised as an international crime before the International Criminal Court. The ICJ Advisory Opinion alone will prompt innovative approaches to holding states accountable for their acts and omissions that have “caused significant harm to the climate system and other parts of the environment”.
Within the next two years, with the ICJ Advisory Opinion expected in 2025 or 2026 and sea levels constantly rising, island states are looking to preserve sovereignty over existing baselines for territorial seas
and exclusive economic zones under the United Nations Convention on the Law of the Sea. The work of Pacific states on the Pacific Maritime Boundaries Programme, to declare shared ocean boundaries between them, continues. This work should also be consistently framed as the emergence of customary international law across states with coastline changes.
Finally, states should be alert to emerging principles of public international law in developing new domestic legislation requiring private action to mitigate climate impacts, such as in regulating corporate activity or establishing carbon-neutral building standards.
INTELLECTUAL PROPERTY LAW
By CRAIG SMITH
SC
THERE ARE VARIOUS actual and potential intersections between intellectual property rights and climate change. Of these, patents stand out as having the greatest potential impact, although confidential information laws and trade marks may also have relevance.
One of the aims of granting patents is to encourage innovation by encouraging investment. The results of successful research may be rewarded with the statutory grant of a limited patent monopoly in respect of any inventive developments, which can assist in achieving a return on R&D investment. In Australia, patent applicants for green technology can request expedited examination in order to accelerate the pathway to achieving a granted patent.
Conversely, patents can deter competition, and can limit the extent of uptake of new technology, and the transfer of technology, including to less-developed countries. It follows that patents can motivate R&D in areas that target the reduction of greenhouse gas emissions, but may also limit the extent to which the market is able to adopt such developments. There has been extensive patenting worldwide in areas including solar panels, wind turbines and batteries.
The following is an example of a case from last year where patent rights were sought to be enforced to prevent competitors from adopting an improvement in solar panel design that was addressed to the efficiency of the solar panel.
Hanwha Solutions Corp v REC Solar Pte Ltd1
On 29 August 2023 the Federal Court of Australia gave judgment in a patent infringement case brought by Hanwha Solutions, a South Korean manufacturer of solar cells. Hanwha sued two Chinese companies (LONGi 1. [2023]
Green Energy Technology Co and JinkoSolar), and a Norwegian company (REC Solar), alleging that each company’s products infringed Hanwha’s patent. LONGi and JinkoSolar are two of the five largest manufacturers of solar cells globally.
The patent was directed to achieving a more efficient solar panel. The two Chinese respondents settled post-trial, but before judgment. REC Solar successfully defended the infringement allegations in respect of its panels, and were partly successful in revoking some of the claims of the patent.
The above case is an isolated example of patent litigation involving technology relevant to climate change. The potential for such litigation may increase as the economic importance of this field of technology grows. It is likely, however, that such litigation may arise as an adjunct to patent litigation occurring in other jurisdictions, because of the limited size of the Australian economy, and the expense of patent litigation proceedings.
For example, the Hanwha case above had analogue proceedings that ran in the United States and in Europe, with differing outcomes. Because of the global market for these technologies, it will often be the case that a patentee will seek to enforce its patent portfolio in a larger marker, and success in that market may achieve a global outcome.
While trade marks may be used as part of greenwashing activities, the avenues for addressing such conduct are more likely to lie in actions taken under consumer protection legislation, including by regulators (such as the ACCC), rather than under trade mark law which has a different focus. In an unusual case in 2021 AGL, a large electricity and gas distributor, sued Greenpeace for trade mark infringement in relation to its use of modified AGL logos as part of a protest campaign—the court readily dismissed that part of the case.
LAND USE LAW
By FIONA M c LEOD
AO SC
Development of the law in Australia
IN AUSTRALIA, CLIMATE change issues have previously typically arisen in the context of judicial or merits review of decisions made under resource extraction, environmental protection and planning legislation.
In recent time there is an increasing challenge to both inaction by governments and to proposed activity that interfere with human rights, particularly those rights held by First Peoples, where traditional connection to land, waters and resources persists alongside other land use rights. There has also been a strategic fight back by non-state actors seeking to suppress and discourage climate change litigation targeting their operations.
In November 1994, less than eight months after the UNFCCC came into effect, a case before the Land and Environment Court in New South Wales expressly challenged the decision of a local council to approve a coal fired power station under State environmental and planning law on the grounds that emissions, especially CO2 emissions, by the project would unacceptably exacerbate the “greenhouse effect”.1
It was then noted that while Australia’s CO2 emissions represent approximately 1.4 percent of the world’s total,
on a per capita basis it is estimated that Australia is the fourth-largest contributor, a fact that has not changed significantly over the course of 30 years according to the best available science and evidence in recent cases. Nevertheless, the relatively small national contribution, or contribution of any single project, continues to be raised by proponents in support of high emissions projects.
From this early start in Australia, the targets of climate land use litigation remains squarely directed to governments and non-state actors. Courts have found that GHG emissions from a particular activity or use, must be considered in deciding whether to approve activities involving fossil fuel extraction or use in operations where required by the constitutional or statutory context.
Emerging Trends
A number of cases of significance determined or proceeding in 2024 involve consideration of climate change impact on the rights and interests of First Peoples.
In the decision of Munkara v Santos NA Barossa Pty Ltd (No 3)2 the Australian Federal Court rejected a claim by the Applicants that a gas pipeline project through
1. Greenpeace Australia Ltd v Redbank Power Company Pty Ltd & Anor. (1994) 86 LGERA 143
2. [2024] FCA 9
CASES CHALLENGING LAND USE ARE PRINCIPALLY LED BY NGOS
OR INDIVIDUALS AGAINST COMPANIES IN HIGH EMISSIONS INDUSTRIES AND GOVERNMENTS. THESE CASES MAY RESULT IN COUNTER SUITS FOR STRATEGIC PURPOSES (SLAPP LITIGATION)
WITH PRESSURE IN SOME JURISDICTIONS TO PROHIBIT OR MANAGE SUCH ACTION DUE TO THE CHILLING EFFECT ON PUBLIC PURPOSE LITIGATION.
their traditional sea country in the Tiwi Islands would impact their cultural heritage including Dreaming stories, artefacts and burial grounds on or under the seabed in such a way that the proponent was required to submit a revised environmental plan. The case turned in part upon the Court’s determination that the evidence required to establish a threat to cultural heritage in that case was insufficient to prove damage to the cultural rights of the group as a whole. This decision will be significant in cases where acts of colonisation have effectively stripped cultural knowledge holders of connection to traditional lands and waters and thus undermined their cultural authority as a source of expert evidence.
In Smith v Fonterra Co-operative Group Ltd & Ors3 the New Zealand Supreme Court rejected an application to strike out claims in tort against seven non-state actors, private companies engaged in significant emissions in their operations, for interference with public rights including tikanga Maori—Maori customs and traditional values and practices—and damage to places of customary and cultural significance including fishing places, landing places, pathways to the ocean, burial and other sacred sites, waterways and campsites. The seven respondents are claimed to be responsible for more than one third of New Zealand’s GHG emissions. The
3. [2024] NZSC 5 4. Federal Court of Australia VID 622/2021
Court found, consistent with the findings of the IPCC Sixth Assessment Report that it was common ground or indisputable that “Climate change threatens human wellbeing and planetary health… the window of opportunity to ensure a liveable and sustainable future for all is rapidly closing. The choices made and actions implemented in this decade will have impacts both now and for thousands of years.” A number of key climate findings were noted. The claims will now proceed to trial in the High Court on three causes of action: public nuisance, negligence and a novel duty to cease materially contributing to climate system damage and will consider the rights and obligations including environmental harm arising under customary law.
In Pabai & Anor v Commonwealth4 the Australian Federal Court has reserved judgment following the conclusion of evidence and final submissions in May 2024. The Applicants allege that the Commonwealth owes them a novel duty of care to protect them, their land and marine environment and their traditional way of life Ailan Kastom from the impacts of climate change due to their special vulnerability living on low lying islands and interconnected relationship with the land and marine environment of the Torres Strait. The case seeks to develop the concept of duty of care found to exist in
Urgenda Federation v Netherlands and subsequent cases, and judgment is expected in 2025.
In Gomeroi People v Santos NSW Pty Ltd & Anor (No 2)5 the traditional owners of the lands associated with a coal seam gas project successfully challenged a decision of the Native Title Tribunal for failure to take up to date climate change information and the impact of GHG emissions from the project on various prescribed statutory matters into account in its decision to approve the project. The Gomeroi submitted that the project would result in grave and irreversible consequences for their culture, lands and waters. The matter was remitted to the Tribunal for rehearing and the parties have since filed further evidence and submissions concerning climate impacts.
Cases challenging land use are principally led by NGOs or individuals against companies in high emissions industries and governments. These cases may result in counter suits for strategic purposes (SLAPP litigation) with pressure in some jurisdictions to prohibit or manage such action due to the chilling effect on public purpose litigation.
Land use cases are often issued to challenge approval of land, water and marine projects including adaptation and mitigation works, in some cases resulting in delay and remission of decisions for reconsideration. Increasingly, torts and statutory claims seek declaratory relief and, in rights-based nations, declarations of illegality.
It is expected that in future land and water use challenges the focus on competing rights and interests, especially the rights and interests of First Peoples and vulnerable groups, including children, will continue raising a range of constitutional, human rights and competing social-economic arguments.
While there is less contest around the basic physical and chemical science of climate change, cases focusing on climate modelling, especially at local and regional levels and causation and attribution of emissions on locally observed impacts will continue to be a focus. These cases require consideration of direct and indirect effects and the compounding vulnerabilities of degraded ecosystems affected by habitat loss, changing climate and other environmental damage.
5. [2024] FCAFC 49
PLANNING LAW (VICTORIA)
By SUSAN BRENNAN SC
THE PLANNING AND Environment Act 1987 (Vic) (PE Act) regulates use and development of land in Victoria. Decisions under the PE Act are made pursuant to subordinate legislative instruments known as planning schemes. One of the four purposes of the Victoria Planning Provisions planning schemes is to “support responses to climate change”. All planning schemes contain extensive policy which must be considered, as appropriate, by decision-makers to respond to climate change, to plan for adaptation and mitigation, and to respond to increased risks due to climate change.
For example, State policy in relation to natural hazards and climate change provides:
Objective
To minimise the impacts of natural hazards and adapt to the impacts of climate change through risk-based planning.
Strategies
» Respond to the risks associated with climate change in planning and management decision making processes.
» Identify at risk areas using the best available data and climate change science.
» Integrate strategic land use planning with emergency management decision making.
» Direct population growth and development to low-risk locations.
» Develop adaptation response strategies for existing settlements in risk areas to accommodate change over time.
» Ensure planning controls allow for risk mitigation and climate change adaptation strategies to be implemented.
» Site and design development to minimise risk to life, health, property, the natural environment and community infrastructure from natural hazards.
Policy guidelines
Consider as relevant:
» Climate change data and information maintained by the Department of Energy, Environment and Climate Action.
» Adaptation action plans prepared under Division 2 of Part 5 of the Climate Change Act 2017.
Policy documents
Consider as relevant:
» Climate science report prepared under Part 6 of the Climate Change Act 2017.
» Likewise, the policy in relation to coastal inundation and erosion provides for decision makers to plan for and manage coastal hazard risk and climate change impacts, by inter alia planning for sea level rise of not less than 0.8 metres by 2100.
As a consequence, decisions about use and development of land in Victoria by responsible authorities (usually,
local Councils or the Minister for Planning) and by the Victorian Civil and Administrative Tribunal on review are required to consider and minimise the impacts of climate change. Many planning decisions are influenced indirectly by the need to address climate change, particularly by policies designed to concentrate development in activity centres in light of their proximity to goods, services, jobs and public transport, in order to reduce reliance on motor vehicles and their associated emissions.
Further, the objectives of planning in the PE Act have been amended by the Climate Change and Energy Legislation Amendment (Renewable Energy and Storage Targets) Act 2024 (Vic) (CCELA Act), which introduces a new objective as s 4(da) of the PE Act:
to provide for explicit consideration of the policies and obligations of the State relating to climate change, including but not limited to greenhouse gas emissions reduction targets and the need to increase resilience to climate change, when decisions are made about the use and development of land.
The CCELA Act received Royal Assent on 26 March 2024. The amendments to the PE Act will commence on 26 March 2025 unless proclaimed earlier. The objectives of planning must be considered in assessing an application for a planning permit and are expected to strengthen climate change considerations in planning decisions.
Over 2024, key areas of litigation have concerned:
» the effects of climate change on flooding, including the reliability and implications of flood modelling for the year 2100; the suitability of urban development and land use intensification on land affected by flood now and in 2100; and the adequacy of existing and future mitigation works, particularly in the aftermath of the Maribyrnong River floods of 2022, about which the final inquiry report second addendum was released during 2024;1
» the merits and lawfulness of approvals of renewable energy projects, including solar farms and wind energy facilities, which have been the subject of challenges in the Supreme Court over the past five years;2
» enforcement proceedings in relation to renewable energy projects, following a successful nuisance proceeding in relation to the adverse acoustic impacts of a windfarm in 2022;3
1. Maribyrnong River Flood Event Independent Review, August 2023; addendum 26 October 2023; second addendum 19 April 2024.
2. For example, Cumming v Minister for Planning [2019] VSC 811; Cumming v Minister for Planning [2020] VSCA 208; Strzelelcki Community Alliance Inc v Minister for Planning and Delburn Wind Farm Pty Ltd [2023] VSC 132.
3. Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145
MANY PLANNING DECISIONS ARE INFLUENCED INDIRECTLY BY THE NEED TO ADDRESS CLIMATE CHANGE, PARTICULARLY BY POLICIES DESIGNED TO CONCENTRATE DEVELOPMENT IN ACTIVITY CENTRES IN LIGHT OF THEIR PROXIMITY TO GOODS, SERVICES, JOBS AND PUBLIC TRANSPORT, IN ORDER TO REDUCE RELIANCE ON MOTOR VEHICLES AND THEIR ASSOCIATED EMISSIONS.
» the legal and strategic basis for funding mechanisms for climate change flood mitigation works, including the construction of levee banks along the Yarra River in Fishermans Bend, Australia’s largest urban renewal area;
» the legal and strategic basis for new building design standards and requirements through planning scheme amendment C376melb in response to the declaration by Melbourne City Council of a climate and biodiversity emergency and a commitment to zero carbon emissions by 2040.
The rationale for C376melb included:
The City of Melbourne’s Climate Change Mitigation Strategy to 2050 (2018) details how Greater Melbourne’s emissions per capita in 2017 of 13.89 tonnes per person are very high by international comparison. In contrast, Melbourne’s fellow members of C40, a global network of cities collaborating to reduce emissions, averaged 5.1 tonnes per person in 2015. The emissions per capita of the City of Melbourne are even greater at 31 tonnes per person—one of the highest in the world. The City of Melbourne performs particularly poorly on a per capita basis because of the high number and large size of its buildings. As a result, buildings account for approximately two-thirds of municipal emissions. To reduce emissions in
line with the goals of both the City of Melbourne and the Victorian Government, efforts in the City of Melbourne need to focus particularly on designing and constructing buildings to be more sustainable.4
Into 2025, litigation associated with approval of renewable energy projects is expected to continue, brought by local communities concerned about the visual and acoustic impacts of wind farms and brought by environmental groups concerned about ecological and biodiversity impacts associated with vegetation removal and threatened species loss. Challenges to decisions of flood management authorities managing the risk of climate change affected flooding are also expected to continue. Major infrastructure projects required for expansion of renewable energy projects such as the Western Renewables Link will be the subject of approval processes. Implementation of future renewable energy zones and their translation into the Victoria Planning Provisions will likely be progressed through next year.
Brennan SC gratefully acknowledges the input from Juliet Forsyth SC, Barnaby Chessell SC, Andrew Walker, Joel Fetter, Alexandra Guild and Jordan Wright.
REGULATORY (AUSTRALIAN COMPETITION AND CONSUMER COMMISSION)
By OREN
BIGOS KC and REBECCA KELLY
ACCC’s Response to Greenwashing
IN LINE WITH a global increase in climate litigation, in recent years the Australian Competition and Consumer Commission (ACCC) has put businesses on notice that it would be on the look-out for misleading environmental claims. Since 2022, the ACCC’s compliance and enforcement priorities have included focusing on manipulative or deceptive environmental claims. This has been expanded since then to include consumer, product safety, fair trading and competition concerns in relation to environmental claims and sustainability1 and the creation of a sustainability taskforce.
In October 2022, the ACCC conducted an internet sweep of 247 businesses/brands across different sectors to identify where it is common for environmental claims to be made and whether they could potentially mislead consumers. The sweep found that 57 percent of the businesses reviewed made claims that were concerning. Many businesses were making unqualified claims often with little substantiating information provided. This included many uses of third-party certifications without clearly describing the nature of the scheme.2
1. ACCC, ‘Compliance and Enforcement Priorities’.
In December 2023, the ACCC released a guide for businesses on ‘Making Environmental Claims’ which set out eight principles for businesses to keep in mind when making environmental claims and provides some practical examples such as avoiding broad and unqualified claims like ‘environmentally friendly’ or ‘green’.
ACCC greenwashing litigation
Since the internet sweep was conducted, the ACCC has so far commenced one court proceeding for misleading environmental claims—ACCC v Clorox Australia Pty Ltd where the ACCC alleges that the manufacturer of GLAD-branded kitchen and garbage bags breached the Australian Consumer Law (ACL) by making false or misleading representations that certain kitchen and garbage bags were partly made of recycled “ocean plastic”.
The ACCC had previously held businesses who make misleading environmental claims to account, including Saab Australia,3 DuluxGroup4 and Volkswagen,5 and we can expect to see more court proceedings in future.
Outside litigation, in November 2023, the ACCC obtained an enforceable undertaking from Moo
2. ACCC, ‘Greenwashing by Businesses in Australia—findings of ACCC’s internet sweep’, March 2023.
3. Australian Competition and Consumer Commission v GM Holden Ltd (ACN 006 893 232) [2008] FCA 1428.
4. Australian Competition and Consumer Commission v DuluxGroup (Australia) Pty Limited (No 2) [2016] FCA 1286.
5. Australian Competition and Consumer Commission v Volkswagen Aktiengesellschaft [2019] FCA 2166.
THUS FAR, THE FOCUS OF ASIC’S CLIMATE-RELATED ENFORCEMENT ACTIVITY HAS BEEN ON THE ‘LONG-STANDING AND WELL-ESTABLISHED’ LEGAL OBLIGATIONS THAT PROHIBIT MISLEADING AND DECEPTIVE CONDUCT.
Premium Foods Pty Ltd in respect of representations that its yoghurt tubs were made from “100% ocean plastic”.6 This suggests that whilst we are not seeing more proceedings yet, the regulator is exercising its information gathering powers to investigate businesses making environmental claims.
In addition to conducting its own investigations, the ACCC has recently received two greenwashing complaints through the Environmental Defenders Office (a non-governmental organisation), on behalf of two other organisations. The first complaint was made on behalf of the Australian Institute regarding “Climate Active”—the Australian government’s carbon neutral certification program. The complaint alleges that the Climate Active trade mark makes misleading or deceptive representations about a certified entity’s carbon neutral status and that consumers may assume that a certified entity is actively reducing its emissions whereas they may simply be purchasing carbon offset credits.7 This raises interesting issues regarding what an ordinary reasonable consumer would understand the term “carbon neutral” to mean in light of the ability to purchase carbon offsets credits and whether a trade mark or certification changes that understanding. In response, Climate Active ran a public consultation regarding updates to its program. The outcome is likely to be released later in 2024.
The ACCC also received a complaint in October 2024 on behalf of Climate Integrity regarding Qantas.8 Climate Integrity alleges that Qantas may be misleading customers by claiming to be a market sustainability leader without providing credible targets or substantiating its strategy to achieve net zero carbon emissions by 2050. The complaint is topical as it follows the ACCC obtaining recently penalties of $100m against Qantas for contravening the ACL. 9
Private litigation on greenwashing
Apart from ACCC proceedings, a proceeding was commenced in August 2021 by the Australasian Centre for Corporate Responsibility against Santos Limited, alleging that Santos engaged in misleading or deceptive conduct by representing that it has a clear and credible pathway to achieve “net zero” Scope 1 and 2 greenhouse has emissions by 2040; and that hydrogen produced from natural gas with carbon capture and storage (blue hydrogen) is “clean” and “zero emissions”. The matter is listed for trial in the Federal Court of Australia in October and November 2024 and is the first case in Australia to challenge the accuracy of a company’s net zero claims. Further, in August 2023 a proceeding was commenced by Australian Parents for Climate Action (now Parents for Climate Ltd) (AP4CA) against EnergyAustralia, alleging the company is misleading consumers through its “Go Neutral” electricity and gas products. Parents for Climate argue that representations made about the Go Neutral products (including that they are carbon neutral) are misleading because purchasing carbon credits does not eliminate the emissions produced by EnergyAustralia’s products. The matter is listed for trial in May 2025.
What’s happening in other jurisdictions?
Like the ACCC, regulators in the United States of America, the United Kingdom and the European Union are also taking steps to update guidance notes for businesses making environmental claims. Recently, there has been limited litigation commenced by overseas regulators, though increased climate litigation brought by environmental organisations or activists against corporates alleged of making misleading claims to consumers. Many of these are focused on businesses advertising their products as being carbon-neutral.
6. ACCC, ‘MOO Premium Foods gives undertaking after ACCC investigates ‘ocean plastics’ claim’, 28 November 2023.
7. Australia Institute, ‘Australian Government Breaching Consumer Law Following Four Corners’, 14 February 2023.
8. Climate Integrity, ‘Complaint filed with the ACCC to investigate Qantas’ misleading sustainability and net zero claims’, October 2024.
9. Australian Competition and Consumer Commission v Qantas Airways Limited, VID685/2023, 8 October 2024.
In the US, the Federal Trade Commission (FTC) is in the process of updating its “Green Guides”, which have been in place since 1992 but not updated since 2012. The update was expected to be published in 2024 but is yet to be released.10 In 2022, the FTC settled proceedings against Khol’s and Walmart for making deceptive claims in respect of textiles which were represented to be environmentally friendly.11
In the UK, in September 2024, the Competition & Markets Authority (CMA) published a compliance guide specifically for fashion brands making environmental claims.12 The CMA conducted a review of environmental claims made by fashion brands which led to investigations and, ultimately, formal undertakings provided by ASOS, Boohoo and George at Asda about how they make environmental claims.13 The UK advertising regulator, Advertising Standards Authority (ASA), has also made several rulings in respect of misleading environmental claims in ad campaigns including for example against Air France, Etihad and Lufthansa.14 In each of these cases, the ASA found that the absolute environmental claims made were not supported by sufficient substantiation.
In Europe, the EU has introduced the Greenwashing Directive and is in the process of introducing the Green Claims Directive which impose stricter requirements on businesses making environmental claims, including proposed prohibitions on making generic environmental claims (eco-friendly, green, climate friendly etc.) when excellent environmental performance cannot be demonstrated.15 Austria’s Association for Consumer Information commenced proceedings against Austrian Airlines AG. The Court found that the airline’s ads offering CO2-neutral flights that used 100 percent
sustainable aviation fuel (SAF) misled the public because it was not currently possible to operate 100 percent SAF flights.16 In the Netherlands, the District Court of Amsterdam recently handed down judgment against airline carrier KLM for greenwashing, in a proceeding brought by Dutch NGO, Fossielvrij NL (Fossil Free Netherlands).17
What to expect in 2025?
Given the increased public interest in holding businesses to account for their environmental claims, we expect to see continued focus by regulators and private litigants in this area. We expect any private litigation to remain focused on highly polluting industries such as oil and gas, energy and airlines.
In circumstances where many consumer markets are now global, regulators around the world may seek to adopt a consistent approach to environmental claims.18 The ACCC’s recent guidelines to businesses make it clear that it expects environmental claims to be accurate and substantiated and that extra caution should be exercised when making emissions related claims, particularly in highly polluting industries. There is a Senate Inquiry into Greenwashing on foot, with a report due by 12 February 2025.19 Depending on the outcomes of the senate inquiry, in 2025 we at least expect the ACCC to continue closely monitoring environmental claims made by businesses (particularly in highly polluting industries); to exercise its powers to request information and documents where businesses make broad environmental claims; and seeking enforceable undertakings or commencing proceedings where such claims cannot be substantiated.
10. Federal Trade Commission, ‘FTC Seeks Public Comment on Potential Updates to its ‘Green Guides’ for the Use of Environmental Marketing Claims’, 14 December 2022.
11. US Department of Justice, ‘Khol’s and Walmart Agree to Pay $5.5 million in Combined Penalties for Alleged Deceptive Violations of the Textile Act and Rules and FTC Act Around the Use of Bamboo’, 5 May 2022.
12. Competition & Markets Authority, ‘Complying with consumer law when making environmental claims in the fashion retail sector’, 18 September 2024.
13. Competition & Markets Authority, ‘Fashion greenwashing: investigation into ASOS, Boohoo and Asda’, 26 January 2023.
14. Advertising Standards Authority, Ruling on Air France-KLM, 6 December 2023; Advertising Standards Authority, Ruling on Etihad Airways, 6 December 2023; Advertising Standards Authority, Ruling on Lufthansa AG t/a Lufthansa, 1 March 2023.
15. Directive (EU) 2024/825 of the European Parliament and of the Council of 28 February 2024 amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and through better information, European Union, [9].
16. Federal Court proceeding NSD833/2023.
17. Stichting Ter Bevordering van de Fossielvrij-Beweging v Koninklijke Luchtvaart Maatschappij NV, (Amsterdam District Court, Case No C/13/719848 / HA ZA 22-524, 20 March 2024).
18. The ACCC noted that this was desirable in its recent submission to the Senate Inquiry into Greenwashing.
19. Parliament of Australia, Senate inquiry into Greenwashing.
REGULATORY (AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION)
By DR LAURA
SCHUIJERS
THE AUSTRALIAN SECURITIES and Investment Commission (ASIC) regulates the Australian financial system and the entities within it. ASIC’s powers and functions under the Australian Securities and Investment Commission Act 2001 (Cth) (ASIC Act) include promoting informed participation in the financial system, protecting consumers and investors, and facilitating market integrity. ASIC also administers the Corporations Act 2001 (Cth) (Corporations Act).
Understanding ASIC’s current and potential future role in climate change litigation requires an appreciation of the area of overlap between ASIC’s powers and functions, and the way in which the financial system is linked to the changing climate. This linkage includes factors such as vulnerability to the physical effects of climate change on assets, exposure to market volatility following climate-related disaster, and fossil fuel dependency via the allocation of capital in emissionsintensive industry. The global response to climate change, including the economic transition to a low or net zero emissions future, has put pressure on entities within
the Australian financial system to keep pace. Failure to align is increasingly perceived as a significant risk. Being able to advertise climate change credentials offers a concomitant opportunity to attract consumers and investors and attain a competitive advantage.
Thus far, the focus of ASIC’s climate-related enforcement activity has been on the ‘long-standing and wellestablished’ legal obligations that prohibit misleading and deceptive conduct.1 ‘Greenwashing’—which is a colloquial but commonly adopted term used to describe conduct that misrepresents environmental benefits or credentials—was one of ASIC’s enforcement priorities in 2023 and again in 2024.2 Greenwashing encompasses the false advertisement of climate change credentials such as carbon neutral, net zero, and fossil fuel free. It has also been used to describe misleading conduct relating broadly to ESG (“environmental, social, and governance”) parameters, including parameters relevant to climate change.
This year, ASIC reported nearly 50 greenwashing interventions between April 2023 and August 2024.3 These interventions resulted in, for example,
1. Joe Longo, “Greenwashing: a view from the regulator” (speech delivered at the RIAA conference, 2 May 2024) available via asic.gov. au. The misleading and deceptive conduct provisions of the ASIC Act are ss 12DA, 12DB, 12DF, and 12BB, and of the Corporations Act, ss 1041E, 1041G, 1041H, and 769C.
2. See ASIC, “Enforcement priorities” at https://asic.gov.au/about-asic/asic-investigations-and-enforcement/asic-enforcementpriorities/.
3. ASIC, ASIC’s interventions on greenwashing misconduct (Report 791, August 2024).
infringement notices issued in relation to fossil fuel investments,4 and corrective disclosure outcomes clarifying potentially misleading climate-related statements.5 ASIC has initiated three civil penalty proceedings, each of which came before the Court in 2024.
Climate change cases in 2024
The first greenwashing case instigated by ASIC was a civil penalty proceeding against Mercer Superannuation Australia Limited. Relevantly to the climate change aspects of the case, ASIC alleged that Mercer held investments contrary to representations that its “sustainable” options were not and would not in future be invested in companies involved in or deriving profit from the extraction or sale of carbon intensive fossil fuels.6 In fact, the sustainable options collectively held investments in up to 15 such companies.7 Mercer admitted liability, and the jointly proposed penalty of $11.3 million was ordered by the Court in August.8
Horan J said it is “vital” that consumers in the financial services industry can have confidence in ESG claims, and that greenwashing “undermines that confidence to the detriment of consumers and the industry generally”.9
ASIC’s second case, against Vanguard Investments Australia Ltd, concerned the way in which ESG screening criteria were applied supposedly to exclude, among other things, certain fossil fuel investments from an “ethically conscious” fund.10 In fact, the fund, which was based on an index, contained investments in fossil fuels. Vanguard largely admitted liability, and the Court ordered a $12.9 million penalty in September.11 O’Bryan J recognised that Vanguard’s conduct had benefited it in the sense that the misrepresentations had enhanced Vanguard’s ability to
4. Ibid 11-12; 14.
5. Ibid 13.
6. ASIC v Mercer Superannuation (Australia) Limited [2024] FCA 850.
7. Ibid [1] (Horan J).
attract investors, as well as its reputation as a provider of investment funds with ESG characteristics.12
In its third case, ASIC alleged that LGSS Pty Ltd made ESG representations including that a superannuation fund of which it was trustee would not make or hold investments in companies that derived a certain proportion of revenue from coal mining, when in fact it held investments contrary to these representations.13 O’Callaghan J, adopting the perspective of an ordinary and reasonable consumer, rejected the proposition that LGSS’ claims that there was “no way” the fund would invest contrary to ESG criteria were to be read subject to a proviso that there was a way in which it would do exactly that.14 His Honour also noted that, accepting “for the sake of argument” that some or all of the alleged representations were as to future matters, insufficient evidence had been adduced to establish that LGSS had reasonable grounds upon which to make them.15 In June, the Court granted declaratory relief substantially as requested by ASIC;16 it is yet to determine ASIC’s claims for a pecuniary penalty and other relief.
Two further cases that were ongoing in 2024 should be mentioned, each brought by parties other than ASIC, but under the misleading conduct provisions of the Corporations and/or ASIC Acts. First, the Australasian Centre for Corporate Responsibility’s case against Santos alleges misleading representations about Santos having a clear and credible pathway to net zero, and misleading representations around natural gas and blue hydrogen being “clean”.17 This case was being heard by the Court in Sydney at the time of writing.18 Secondly, Greenpeace Australia Pacific Limited’s case against Woodside Energy Group Ltd concerns certain statements made by Woodside regarding its net zero by 2050 plan,
8. ASIC v Mercer Superannuation (Australia) Limited [2024] FCA 850 (Horan J). Note that the penalty encompassed conduct relating to other ESG parameters.
9. Ibid [148].
10. ASIC v Vanguard Investments Australia Ltd [2024] FCA 308.
11. ASIC v Vanguard Investments Australia Ltd (No 2) [2024] FCA 1086 (O’Bryan J). As above, the penalty encompassed conduct relating to other ESG parameters.
17. The allegations made by the Australasian Centre for Corporate Responsibility are summarised in its media release: “Australasian Centre for Corporate Responsibility updates case against Santos in Federal Court” (media release, 26 June 2023) at www.accr.org.au/ news/australasian-centre-for-corporate-responsibility-updates-case-against-santos-in-federal-court/. The official case documents are not, at this stage, publicly available. The Guardian reported on the case on 28 October 2024: Petra Stock, “Santos sued by its own shareholder in world-fist greenwashing case” www.theguardian.com/environment/2024/oct/28/santos-sued-shareholdergreenwashing-case.
18. Online case file: www.comcourts.gov.au/file/Federal/P/NSD858/2021/actions.
THUS FAR, THE FOCUS OF ASIC’S CLIMATE-RELATED ENFORCEMENT ACTIVITY HAS BEEN ON THE ‘LONG-STANDING AND WELL-ESTABLISHED’ LEGAL OBLIGATIONS THAT PROHIBIT MISLEADING AND DECEPTIVE CONDUCT.
which Greenpeace alleges is aspirational rather than sufficiently defined, as well as Woodside’s interim emissions reduction targets. Greenpeace says Woodside’s representations are misleading in part because its plans and targets don’t include scope 3 emissions, and because they rely on offsetting.19
It is worth noting that cases brought under the ASIC and Corporations Acts may also involve alleged contraventions of the Australian Consumer Law (ACL), and that the Court’s decisions in ACL climate change cases are likely to be relevant to financial services cases.20
Forecast for 2025
An amendment to the Corporations Act that will mandate reporting on climate change-related financial “risks and opportunities” for entities that report under Chapter 2M was passed in September. The Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Bill 2024 (Cth) requires climate change reporting in accordance with the Australian Sustainability Reporting Standards.21 The reporting regime will take effect from 2025, and will be administered and enforced by ASIC. This means ASIC will be monitoring the accuracy of statements made about, for example, how an
entity is affected by climate change, and plans to respond to the climate transition. If those statements relate to the future, ASIC will consider whether they are founded on reasonable grounds. A limited immunity provision will temporarily prohibit third party litigation relating to the disclosure requirements.22 ASIC has said it will take a “proportional and pragmatic” approach to enforcement in the adjustment period.23
It is foreseeable that in coming years ASIC will expand its enforcement activity beyond the misleading and deceptive conduct provisions of the ASIC and Corporations Acts. The now relatively well-accepted link between directors’ duties and climate change, for example, could become the subject of enforcement activity in the future.24 Developments in sustainable finance taxonomy, the release of the report from the recently concluded Senate Inquiry into Greenwashing, and other commentary and guidance including from ASIC may help to shape this emerging area of law. ASIC has also indicated a future role in reviewing how insurers are handling claims following severe weather events, as well in supervising carbon markets and monitoring carbon-based financial products;25 these are two further areas to watch.
19. The official documents for this case are not publicly available, but Greenpeace has published a copy of its Amended Concise Statement on its website: https://www.greenpeace.org.au/static/planet4-australiapacific-stateless/2024/05/20240411NSD1520_2023_Amended-Concise-Statement-sealed.pdf. Online case file: https://comcourts.gov.au/file/Federal/P/ NSD1520/2023/actions.
20. The misleading and deceptive conduct provisions of the ASIC and Corporations Acts share a common ancestry with those of the ACL, and they are typically interpreted consistently: Australian Securities and Investment Commission v Vanguard Investments Australia Ltd [2024] FCA 308, [21] (O’Bryan J). In terms of a potentially relevant ACL climate change case, see, e.g., Parents for Climate v Energy Australia Pty Ltd: “Parents for Climate v EnergyAustralia: Offsets Greenwashing” https://equitygenerationlawyers.com/case/ ap4ca-v-energyaustralia/; online case file: www.comcourts.gov.au/file/Federal/P/NSD833/2023/actions.
21. These standards are set by the Australian Accounting Standards Board, developed with reference to international standards. See AASB S1 at https://standards.aasb.gov.au/aasb-s1-sep-2024.
22. Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Bill 2024 (Cth) sch 4, pt 4, s 145, inserting new s 1707D into the Corporations Act. Although I have not included corporate disclosure cases in this section, note that the new reporting requirements are preceded by a series of actions brought by private individuals seeking greater transparency in relation to their investments and associated climate-related risks: see, e.g., Re AGL Energy Limited [2022] NSWSC 576; Diana Beere v National Australia Bank; Catherine Rossiter v ANZ Group Holdings Limited; Abrahams v Commonwealth Bank of Australia; McVeigh v Retail Employees Superannuation Pty Ltd.
23. ASIC, “ASIC urges businesses to prepare for mandatory climate reporting” (media release 24-205MR, 18 September 2024) available via asic.gov.au.
24. See, e.g., Noel Hutley SC and Sebastian Hartford Davis (instructed by Sarah Barker), “Climate Change and Directors’ Duties—Further Supplementary Memorandum of Opinion” (Centre for Policy Development, 23 April 2021) available via cpd.org.au.
25. ASIC, Corporate plan—2024–25, available via https://asic.gov.au/about-asic/corporate-publications/asic-corporate-plan/.
SHIPPING LAW
By
MATTHEW HARVEY KC
and DR DAYE GANG
Shipping upholds global trade at very high energy efficiency
THE UNITED NATIONS estimates shipping to produce approximately 11 percent of all emissions in the transport industry, transporting 90 percent of the world’s goods by weight. The International Maritime Organization (IMO) identifies transport of goods by ship as the most energy-efficient mode of transportation by far compared to transportation by truck and air freight. Since 2008, the global fleet’s tonnage has approximately doubled in size, while emissions have reduced by approximately 14 percent. It is the size, rather than the energy efficiency, of this industry that prompts scrutiny: it is responsible for two to three percent of global greenhouse gas emissions.
Given the fundamental role of the shipping industry for global trade, climate litigation and arbitration in this industry will be targeted at systemic improvement of current technology as well as the development of “green” fuel, such as hydrogen and ammonia.
This and other factors may explain the relative paucity of litigation and arbitration in this area. For one, unlike resources industries that have existing realistic alternatives in the market, there is no alternative to shipping. For another, the shipping and transport industry already collaborates and self-governs in climate impact mitigation, led by the IMO. The IMO itself
developed the Carbon Intensity Indicator (CII), a rating system that measures how efficiently a ship transports goods and passengers, as a mandatory measure to improve the carbon efficiency of ships.
Of around 30 climate litigation cases in the shipping sector identified by Opportunity Green in March 2024, only one was filed in Australia relating to the approval of a coal mine in 2015, where the applicant filed a judicial review against the Minister for the Environment and Energy. The applicants, the Australian Conservation Foundation Incorporated, argued that the Minister made an error of law in failing to consider the effect of emissions from transport by rail, shipping, and combustion of the product coal overseas as part of the discharge of the Minister’s statutory task in accordance with section 527E of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) The application was ultimately dismissed.
Litigation risks and opportunities proliferate for companies and activists alike
For all the benefits of international shipping, it is inevitably exposed to endemic risks: its reliance on, and carriage of, oil and gas; the complexity of the shipping and transport supply chain and gaps in due diligence arising therefrom; and the many jurisdictions that create overlapping laws and regulations over movable assets.
Potential respondents to climate litigation are all companies in the shipping supply chain, and their directors, investors, and insurers, sued by government regulators, upstream and downstream supply chain companies, competitors, shareholders, investors, and climate activists.
Public action
In the Federal Court, environmental considerations under the EPBC Act in the issuance of regulatory permits and licences could be ground for judicial review applications upstream and downstream in the shipping industry. The EPBC Act poses a low bar for climate considerations. However, new avenues may open with cutting-edge developments, such as the decision of the International Tribunal for the Law of the Sea, in Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (Request for Advisory Opinion submitted to the Tribunal), that greenhouse gases constitute marine pollution, or by the application of established standards such as the IMO’s CII.
Regulatory frameworks outside Australia can lead to the publication of information that can be used as evidence in proceedings against shipping companies. An example of this is the European Union’s inclusion of the shipping industry in its Emission Trading Scheme from 1 January 2024. Although the credits were allocated on historical use of the Red Sea transits, this information can be searched for relevant evidence in Australian proceedings about compliance with Australian regulations, and international treaties that have effect in Australia: the International Convention for the Prevention of Pollution from Ships, implemented domestically through Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) (POS Act) and the Navigation Act 2012 (Cth).
The POS Act, in particular, creates criminal charges against individuals and corporations for sea pollution.
Private action
Risks also arise where companies make claims in the course of trade or commerce. In September 2023, UK climate activist group Opportunity Green filed a complaint with the Advertising Standards Authority over what it described as “the cruise industry’s systemic misleading advertising of fossil LNG as a ‘green’ fuel”. This complaint could find its Australian cognate in a claim of misleading and deceptive conduct in the course of trade or commerce under the Australian Consumer Law. Possible claims are that fuel used is
better for the environment than it actually is, or that a vessel or voyage is carbon neutral. Victims of the climate impact of an at-sea oil spill or other environmental damage may sue in the traditional use of the “polluter pays” principle, if there is ongoing harm and damage after the Australian Maritime Safety Authority manages the initial cleanup.
Shareholders or investors may consider suing in negligence for not considering the risks of climate change on shareholder value as climate change impacts shipping routes. As an example, shareholders could sue for losses in shareholder value incurred as a result of failing to consider the impact of increasing use of the Arctic Northern Shipping Route by competitors for speed and cost-effectiveness. Or, as force majeurelevel weather events gradually become known events, contract disputes may become more common on the basis that some extreme weather events no longer qualify. These kinds of suit may find their home in arbitration rather than in a domestic court if in the context of a contract with an arbitration clause. Depending on the factual matrix, directors might be sued in the above circumstances by companies or shareholders in derivative actions for breaches of directors’ duties and failure to meet disclosure obligations under the Corporations Act 2001 (Cth).
Given that litigation is framed by evidence and standing, the cause of action would have to be determined by what documents are available or can be discovered, by whom, and how.
“Green” fuels and ports
In the past five years, industry has focused its attention on “green” fuels. At industry forums, it is increasingly the case that benefits and detriments of biodiesel, hydrogen and ammonia for powering ships is discussed.
As projects for the manufacture and provision of such fuels moves from the drawing board to reality it can be expected that litigation will arise in three broad areas:
» the construction and maintenance of “green” fuel production facilities;
» the construction and maintenance of systems for the fuelling of ships with “green fuels”;
» failures in meeting specifications for such fuels.
Finally, it cannot be forgotten that “green” fuels such as ammonia and hydrogen carry their own significant safety issues. There may well be litigation arising from failures to implement reasonable safety measures.
The
value of litigation and arbitration in shipping will be in encouraging systemic change
There is no doubt that shipping is crucial to commerce. Therefore, climate litigation in this sector might focus on accelerating reduction of emissions in the grey areas where hard international law and domestic law and regulations find too complex and diverse for granular dictation.
Given the complexity of the land, port and sea environment in which shipping companies work, climate litigation or arbitration may be settled quickly and quietly
by briefing counsel early to consider settlement with commitments and actions to lead or influence systemic change. The shipping and transport industries are a particularly rich environment to continue the systemic efforts of the actors themselves, under the governance of the IMO.
Litigation and arbitration in the shipping industry would appear to open fertile ground for early counsel-tocounsel negotiations about what that systemic change might be.
THE REAL SIGNIFICANCE OF VANDERSTOCK, HOWEVER, LIES IN ITS IMPLICATIONS FOR THE ABILITY OF THE STATES TO USE TAXES AND LEVIES TO AFFECT THE DEMAND FOR POLLUTING PRODUCTS
TAXATION LAW
By ANDREW DE WIJN SC and EDWARD MOORE
THE HIGH COURT decision in Vanderstock v Victoria1 (Vanderstock ) concerned the constitutional validity of a Victorian road user charge called the “ZLEV” (the Zero and Low Emission Vehicles charge).
The ZLEV was charged annually, based on the kilometres travelled in an electric or hydrogen-fuelled vehicle in the preceding past 12 months on any Australian roads.
The Court decided by a narrow majority that the charge was constitutionally invalid, because it was an “excise”. Only the Commonwealth (and not the States) can impose excise by reason of section 90 of the Constitution.
This result was a surprise to most tax lawyers, and likely the States, given that it overruled an earlier contrary decision (Dickenson’s Arcade Pty Ltd v Tasmania2) that had been affirmed (or not overruled) by the High Court on nine earlier occasions.
The immediate effect of the demise of the ZLEV is perhaps a very mild reduction in carbon emissions, on the assumption that taxing the use of electric vehicles slightly less should increase their popularity. However, the underlying policy rationale of the ZLEV was to lay the foundations for a stable tax base for a future in which electric and hydrogen vehicles replace fossil fuel models. At present, the States depend on fuel excise
1. (2023) 414 ALR 161.
2. (1974) 130 CLR 177.
(among other taxes and levies) collected and remitted by the Commonwealth to fund their road infrastructure. Therefore, as fossil fuels are gradually phased out of the transportation sector, an important part of the State’s tax base will be eroded. Reinforcing the States’ dependency upon fossil fuel consumption may not be a good thing in the long term.
The real significance of Vanderstock, however, lies in its implications for the ability of the States to use taxes and levies to affect the demand for polluting products. The essence of the High Court’s reasoning was that a State tax, duty or levy may be unconstitutional where it has a tendency to depress demand for particular goods. The matter will be determined as a matter of substance, rather than form, which is why the ZLEV was struck down despite being levied on road use (per kilometre) rather than upon purchasing a vehicle. In light of those principles, a State wishing to levy a tax or impost upon particularly carbon intensive products, or activities involved in their manufacture or consumption, may now be constitutionally unable to do so. Given the policy paralysis that has long prevailed at a Commonwealth level on these issues, this is unfortunate.
However, the scope of the judgment is still unsettled. Since Vanderstock throws doubt on other existing State imposts—such as waste disposal levies and motor vehicle duties—it is likely to inspire more litigation in the years to come.
CONCLUSION
Climate change litigation is increasing world-wide. We expect increasing litigation to be the case in Australia. We will provide data in next year’s Review, which will measure the extent of this growth by comparing the current data with the 2025 data.
Climate change litigation has been categorised into first wave cases (i.e. government accountability cases), second wave cases (i.e. human rights cases), and third wave cases (i.e. corporate responsibility cases). To this, one could potentially add a category based on legal practice areas, as this Review reveals. This category is useful to track the expected expansion of “material issues of climate change science, policy or law”1 in the various legal practice areas, and notifies practitioners of the potential intersection of climate issues with their practice areas.
Most notably in 2024, we have seen the growth of climate change litigation cases in the Criminal Law and Regulatory contexts. We expect growth in other practice areas. For example, the increased frequency and intensity of climate events due to climate change and the corresponding losses to person and property is likely to introduce “climate science, policy and law” into the Insurance practice area. A similar intersection can be envisaged in the Construction Law practice area, with the significant investments envisaged in renewable energy projects and the inevitable disputes that will arise. These features suggest that climate change litigation is not homogenous nor discrete. Climate change litigation cases are distinguishable on the basis of the parties, the causes of action, the relief and the industry the subject of the litigation. That said, at a broad level, the cases are unified by the fact that each “involve[s] material
issues of climate change science, policy or law”.2 Even if the particular “climate change science, policy or law” engaged is not the same across all cases.
There are features of Australian climate change litigation that may mean that cases here will not mirror paths available overseas. For example, with the exception of the recent amendment to the Human Rights Act 2004 (ACT), there is no legislated right to a “clean, healthy and sustainable environment”. Whether that gap can be filled by deploying the legislative recognition of our First Nations Peoples’ cultural rights3 may be answered with the forthcoming judgment in the Pabai case.
Further, Australian law maintains a policy/operational distinction4 in tort law that limits the challenges to government’s climate decisions, such as setting emission targets. The exact extent of that distinction and any corresponding limitation is expected to be addressed in the forthcoming judgment in the Pabai case.
Over 40 percent of the climate litigation cases were administrative in nature, with greenwashing cases totalling about 14 percent of the cases in 2024. Therefore, the shift to third wave cases outnumbering first wave cases, which has been widely projected, did not occur in Australia in 2024. We will continue to monitor this projected transition.
1. Setzer J and Higham C (2024) “Global Trends in Climate Change Litigation: 2024 Snapshot”. London: Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science at page 7.
2. Setzer J and Higham C (2024) “Global Trends in Climate Change Litigation: 2024 Snapshot”. London: Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science at page 7.
3. For example, Human Rights Act (Qld) ss 27 and 28.
4. Minister for the Environment v Sharma [2022] FCAFC 35; (2022) 291 FCR 311.
ACKNOWLEDGEMENTS
This Review could not have been produced without the assistance of the Victorian Bar and in particular the CommBar.
The Editors are greatly indebted to all of our colleagues who have shared their knowledge and insights for the purpose of this Review
The views in this Review are those of the authors and do not represent those of the Victorian Bar or CommBar. Any errors or omissions remain those of the authors.
Permissions requests should be directed to CommBar.
Suggested citation: Victorian Bar (2024) T. Boston KC, L.De Ferrari SC and V. Holt Australian Climate Change Litigation—Annual Review (2024)
APPENDIX A
Methodology
A variety of sources were used to identify climate change litigation cases that were settled or remained on foot in the 2024 calendar year, the objective being to provide a comprehensive and accurate count and details of the 2024 cases. There were, however, limitations in the searches. There are varying levels of restrictions on access to documents filed in the State and Federal Courts. Therefore, there is a risk that the Review could have missed cases that have not received any media coverage and/or have not been the subject of any published judgments. However, given that climate change litigation is such a topical issue, we expect this risk to be small.
We have cross-checked the cases identified against the Sabin Center’s Global Climate Litigation Database and the University of Melbourne’s Australian and Pacific Climate Change Litigation Database.
Planning legislation and schemes throughout the Australian States impose obligations on planning decision makers to consider a wide range of climate change risks and impacts (where relevant). Planning decisions can be reviewed and appealed to various tribunals and courts. We understand that there are a significant number of planning cases that involve issues of climate science, law and policy to varying degrees. Therefore, the inclusion of the planning cases across Australia in the tally was likely to skew the numbers and trends. Accordingly, we have excluded the planning cases from the tally. Examples of the planning cases extant in 2024 are included in Appendix D.
APPENDIX B
Definition of legal practice areas
For the purposes of the Review, we have defined the legal practice areas as follows.
Construction Law
The definition of construction law used for the purposes of the Review: cases concerning “the law that applies to and in respect of the undertaking of construction and engineering projects”.1 More specifically, “construction” concerns the work undertaken in the construction of houses, buildings and similar structures including related amenities, and “engineering” concerns the work undertaken in the creation of infrastructure such as roads and rail, bridges and tunnels, power stations, renewable energy assets, mining projects, oil and gas projects, and any other infrastructure the product of engineering.
Criminal Law
The definition of Criminal Law used for the purposes of the Review: cases related to criminal prosecutions, or otherwise considering criminal offence provisions. Such cases include those where the substantive offence is one concerning the protection of the environment, but also those where the offence is ‘climate neutral’ but the facts of the case raise an issue concerning the climate. An example of the former would be a prosecution of a company for an environmental offence concerning the emission of greenhouse gasses. An example of the latter would be the prosecution of an individual for ‘public order’ offences (such as trespass) in circumstances where the individual is protesting against government or corporate contributions to climate change. It should be noted that many criminal prosecutions for environmental offences will not fall within this definition; for example,
1. Julian Bailey, Construction Law (London Publishing Partnership, 4th ed, 2024) at 1.04.
prosecutions for discrete acts of pollution (not involving greenhouse gases) or illegal logging.
Energy Law (Energy Regulators)
The definition of Energy Regulators used for the purposes of the Review: bodies or agencies at a Commonwealth, State and Territory level which implement and oversee rules relating to energy production, distribution and consumption and related emissions. This includes regulators whose tasks include enforcing regulations, such as the Australian Energy Regulator, the Essential Services Commission, and the relevant State and Territory Environment Protection Authorities, as well as others who propose or prepare regulations or have responsibility for energy policy and decision-making, such as relevant Ministers and government departments.
Environment (Cth and State Acts)
Climate Change Litigation commenced in Australia involving the principal environmental legislation enacted by the Commonwealth, State or Territory governments.
Human Rights
Any climate change litigation cases (as defined) that require consideration of human rights the subject of international treaties to which Australia is a party.
International Law
“International law” for the purposes of the Review, means the area of law relating to the development of principles, complaints under hard and soft laws brought by individuals against States, and inter-State agreements and disputes.
Insolvency Law
The definition of Insolvency law2 used for the purposes of the Review is the area of law which deals with the consequences of a debtor’s actual or potential inability to satisfy all of its financial obligations as and when they fall due. The law deals with the impacts of that situation as between debtor and creditor, and as between the creditors themselves. It can resolve over-indebtedness
via the compulsory discharge of debts and distribution of assets, or by the restructuring of debt and equity capital. It can also alter the debtor’s relationships with the broader community; it can change the legal status of the debtor, and it can sanction the debtor and certain counterparties for actions taken during (or in the shadow of) the period of over-indebtedness.
Intellectual Property
The definition of Intellectual Property used for the purposes of the Review covers all of the statutory rights provided under the Patents Act 1990 (Cth), Trade Marks Act 1995 (Cth), Copyrights Act 1968 (Cth) and Designs Act 2003 (Cth).
Land Use
The definition of Land Use adopted for the purposes of the Review covers those cases where the impacts of climate change, climate change mitigation and/or adaptation impact the use of and human connection to land, waters and resources in the domestic and international context.
Planning Law (Vic)
Planning law concerns the body of law regulating the use and development of land and water, and involves legislation dealing with town planning, endangered species, water resources and water management, catchment management, environmental effects, environment protection, heritage, Aboriginal cultural heritage, major projects, mineral resources development, building design, subdivision and land acquisition. Because constitutional arrangements in Australia result in legislative responsibility for land and water resting largely with the States, planning law tends to be practiced by reference to State-based legislation. Hence, the section on planning law (Vic) concerns legislative reform and litigation in Victorian courts and tribunals.
Regulatory (ACCC)
The definition of Regulatory (ACCC) used for the purposes of the Review is the area of law in which climate change litigation was commenced in Australia by the Australian Competition and Consumer Commission
2. The term ‘insolvency law’ is synonymous with ‘bankruptcy law’; the specific use of the two terms varies between jurisdictions. In Australia, the umbrella term ‘insolvency’ is typically confined to corporate insolvency, whereas ‘bankruptcy’ refers to personal insolvency. The Insolvency law section of the report confines itself to considering corporate insolvency law.
or private litigation alleging contraventions of the Australian Consumer Law. Climate Change Litigation commenced by international competition and consumer regulators, or private litigation alleging misleading or deceptive conduct, is only included when an Australian entity or citizen is a party.
Regulatory (ASIC)
The definition of Regulatory (ASIC) used for the purposes of the Review is the area of law in which climate change litigation was commenced in Australia by the Australian Securities and Investments Commission and by other parties: (a) relating directly or indirectly to climate change; and (b) brought under the provisions
of the Australian Securities and Investment Act 2001 (Cth) and the Corporations Act 2001 (Cth). ASIC’s wider enforcement activity, as well as published guidance and strategy, was also considered.
Shipping Law
The definition of Shipping Law used for the purposes of the Review is litigation and arbitration with a connection to the shipping industry and its infrastructure.
Taxation Law
The definition of Taxation Law used for the purposes of the Review is any law imposing a tax or duty.
APPENDIX C
List of cases
Class actions
» Pabai Pabai v Commonwealth of Australia (VID 622/2021)
Criminal law
» C v WA Police [2024] WASC 79
» Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9
» Police v Abel; Police v Adams; Police v Kelly; Police v; Molan; Police v Wurcker [2024] ACTMC 1
» R v Coaldrake [2024] QMC 3
» R v Deanne Coco and Bradley Homewood (Magistrates’ Court of Victoria)
» Deanne Coco and Bradley Homewood v R (County Court of Victoria)
» R v Bradley Homewood (Magistrates’ Court of Victoria) Energy Law (Energy Regulators)
» Maules Creek Community Council Inc v Environment Protection Authority [2024] NSWLEC 71
» Seadragon Offshore Wind Pty Ltd v Minister for Climate Change and Energy (Federal Court NSD777/2024)
» Hunter Environment Lobby Inc v Minister for Environment and Water (Federal Court NSD711/2024)
Environment (Commonwealth & State Acts)
» Environment Council of Central Qld Inc v Minister for Environment and Water ([2024] FCAFC 56)
» Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc v MACH Energy Australia Pty Ltd [2024] NSWLEC 86
» Central Australian Frack Free Alliance Inc v Minister for Environment [2024] NTSC 75
» North East Forest Alliance Inc v Commonwealth [2024] FCA 5
Human Rights
» BHP Coal Pty Ltd v Chief Executive, Department of; Environment, Science and Innovation [2024] QLC 7
» Whitehaven WS Pty Ltd v Australian Conservation Foundation [Land Court of Queensland]
» 1916631 (Refugee) [2024] AATA 3961
» 2402927 (Refugee) [2024] AATA 2294
» 2314840 (Refugee) [2024] AATA 1145
» 2401199 (Refugee) [2024] AATA 1251
» 2401197 (Refugee) [2024] AATA 1757
» 2402656 (Refugee) [2024] AATA 1362
» 2320711 (Refugee) [2024] AATA 1118
International law
» Environmental Justice Australia v Australia
» Human Rights Law Centre on behalf of affected individuals v Rio Tinto (Complaint no. 21)3
» Project Sepik and Jubilee Australia Research Centre on
3. This case was included in the tally because the conduct and events occurred in the Global South and the circumstances underpinning the dispute has the potential to impact the community’s resilience to climate change.
behalf of affected Sepik River communities v PanAust Limited (Complaint no. 29) 4
» Evangelical Lutheran Church of Papua New Guinea, Centre for Environmental Law and Community Rights Inc and Jubilee Australia Research Centre on behalf of affected Morobe Province communities v Newcrest Mining Ltd and Harmony Gold (Australia) Pty Ltd (Complaint no. 31) 5
» DS-600: European Union and Certain Member States— Certain Measures Concerning Palm Oil and Oil Palm Crop-Based Biofuels
» DS-593: European Union—Certain Measures Concerning Palm Oil and Oil Palm Crop-based Biofuels
Land use
» Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26
» Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (No. 2) [2024] FCAFC 49.
» Hunt v The Owners - Strata Plan No 1158/84199 [2024] NSWCATAP 65
» Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action [2024] FCA 317
» Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action [2024] FCAFC 134
Non-regulatory greenwashing
» Australasian Centre for Corporate Responsibility v Santos Limited (Federal Court NSD858/2021)
» Australian Parents for Climate Action v EnergyAustralia Pty Ltd (Federal Court NSD833/2023)
» Greenpeace Australia Pacific Limited v Woodside Energy Group Ltd
» Jubilee Australia Research Centre Ltd v Export Finance and Insurance Corporation (Federal Court NSD724/2023)
Regulatory (ACCC)
» Australian Competition and Consumer Commission v Clorox Australia Pty Ltd (Federal Court VID 315/2024)
Regulatory (ASIC)
» ASIC v Mercer Superannuation (Australia) Limited [2024] FCA 850
» ASIC v LGSS Pty Ltd [2024] FCA 587
» ASIC v Vanguard Investments Australia Ltd [2024] FCA 308; and ASIC v Vanguard Investments Australia Ltd (No 2) [2024] FCA 1086
