Judicial attitudes are evolving

An important initial trend to observe is the apparent willingness of judges to intervene on climate-related grounds, and decreasing propensity to defer to the legislature and executive.

In April 2019 a landmark ruling by the Chief Judge of the NSW Land and Environment Court in Gloucester Resources Limited v Minister for Planning[1] confirmed the willingness of the judicial arm to rule against fossil fuel development on climate change grounds.

In that case, Chief Judge Brian Preston upheld the refusal of an application to develop an open-cut coal mine in the Hunter Valley. According to Preston CJ, the Project would have 'significant and unacceptable planning, visual and social impacts, which cannot be satisfactorily mitigated', and 'the Project should be refused for these reasons alone'. However, Chief Judge Preston also found that '[t]he GHG emissions of the Project and their likely contribution to adverse impacts on the climate system, environment and people adds a further reason for refusal'. According to the Chief Judge:

[A]n open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time… because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.

The Gloucester Resources case built upon earlier judicial decisions which had recognised the relevance of downstream, scope 3 GHG emissions to environmental assessments of new mining projects[2] and amendments to planning schemes.[3]

A similar judicial attitude is evident in the interim decision of the Supreme Court of Victoria in Wildlife of the Central Highlands Inc v VicForests.[4] Following the destruction of large swathes of forest in the 2019/20 Australian summer bushfires, Wildlife of the Central Highlands (WCH) brought an application for an injunction restraining VicForests from continuing logging activities, on the grounds that VicForests would violate Victorian laws if it were to undertake those activities in coupes containing bushfire-affected threatened species. The court rejected VicForests' contention that the plaintiff's application was a 'transparent attempt to use the legal process to achieve a political outcome' and that the management of dynamic State forests was a matter of policy that was properly left to the executive. Justice Kate McMillan held, to the contrary, that the dispute over the application of sustainable timber harvesting laws raised an issue of the proper construction of the relevant legislation such that it was 'inherently suited to the judiciary'[5].

Although not expressly a climate-related claim, the WCH v VicForests case points to the scope for physical phenomena understood to be linked to climate change to tip the balance in favour of courts stepping in to restrain (or indeed compel) government action.

Courts becoming active in shaping climate change laws, but there are limits

A willingness on the part of the judiciary to step into the fray is not universal and will in some cases find its limits. So much is evident from the recent decision of the Ninth Circuit Federal Court of Appeals in Juliana v United States.[6] The proceeding, filed in 2015, concerned a challenge by 21 young people to US Government energy policies which alleges that those policies have destabilised the climate system and, in violation of the plaintiffs' constitutional rights, jeopardised human life, private property and 'civilisation itself'. On 17 January this year, the Court (2-1) dismissed the claim, the majority conceding that the US Government's climate policies might pose 'clear and present danger' capable of destroying the nation, but holding that it was for the Federal Government and Congress to act on climate change. According to the majority, the plaintiffs had constitutional rights to a stable climate system, but they did not have standing because they had not established that the relief sought would be substantially likely to redress the plaintiffs’ injuries. Further, an order requiring the Government to develop a plan to 'phase out fossil fuel emissions and draw down excess atmospheric carbon dioxide emissions' was in any event beyond the court's constitutional power.[7]

Less than one month earlier, on 20 December 2019, the Supreme Court of Netherlands in Urgenda Foundation v State of the Netherlands,[8] reached the opposite view to the Juliana majority. The court held that on the basis of the European Convention on Human Rights, the Netherlands has a positive obligation to take measures to prevent climate change and ordered the Dutch Government to increase its 2020 target to align with the levels of emissions reduction recommended by international climate science bodies. Although the Netherlands decision (which we explore further in the sections that follow) should be viewed in its unique jurisdictional context, we agree with the assessment of Melbourne University Professor Jacqueline Peel that decisions such as these demonstrate that 'around the world, courts are showing that they can be an active player in shaping how the law applies to climate change'.[9] Having regard to Rocky Hill and VicForests, we believe this comment to be true closer to home.

'Around the world, courts are showing that they can be an active player in shaping how the law applies to climate change.'

Professor Jacqueline Peel, Melbourne University

Targeting net zero

Navigating the risks and opportunities of climate change

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