Climate change litigation: the heat is on

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If it has taken governments so long to accept the reality of climate change, how long will it take them to agree on finding solutions? Will they look for the best way of tackling it, or simply the most politically expedient? Is there anything we can do to force them to act, and to act properly?

On matters to do with climate change our governments have long forsaken objective inquiry, blinkered any capacity for sensible foresight and abandoned intelligent planning.

They are intoxicated by the prospect of short term economic gain, approving environmentally disastrous projects one after another on bases such as economic benefit to the state or country or promises of job creation.

When challenged, they lapse into a mode of thinking that is reflected in Planning Minster Frank Sartor’s comments about his approval of Centennial Coal’s massive open cut Anvil Hill coal mine:

‘… you’re talking about 12 million tonnes of CO2, in that order. Half of what the Greens said. However, if Anvil Hill was stopped and we said no to it, the same amount of greenhouse gas would still be pumped out….You’re asking, give New South Wales a political whack, an economic whack, in other words – punish New South Wales economically by saying “no” when there’s no genuine environmental benefit in global warming.’

A coherent and convincing argument? What more is he saying than, ‘if we don’t do it someone else will, and we want the money’? It’s interesting that a similarly dismissive approach was taken by the assessor from the federal Environment Department who gave the Anvil Hill project the green light last year, finding that the combustion by end-users of all the coal produced by the proposed mine would produce per annum the equivalent of 0.04% of the current annual global greenhouse gas emissions. What is extraordinary is her conclusion:

‘…in light of the relatively small contribution of the proposed action to the amount of concentration of greenhouse gases in the atmosphere, I found that a possible link between the additional greenhouse gases arising from the proposed action and a measurable or identifiable increase in global atmospheric temperature or other greenhouse impacts is not likely to be identifiable.’

She also found that greenhouse gases emitted in the course of extracting and transporting the coal ‘were likely to be negligible in the context of existing emissions’. Now, one 25th of 1% may sound small, but not when you consider the magnitude of the whole: some 8 billion tons of CO2 are produced each year from burning fossil fuels, and .04% of that is more than 3 million tons. Further, being superficially small does not mean that it is inconsequential. If the then Environment Minister Mr Turnbull could rely on this argument to give Anvil Hill the go ahead, how could he tell us in the same breath to change our lightbulbs? If we all adopted the approach our government dictated for industry then we should do absolutely nothing to rein in our habits: if Anvil Hill’s impact is unidentifiable, our individual impacts are minuscule.

When the Federal Court upheld Turnbull’s delegate’s decision in September last year, Judge Stone seemed to accept that assessment. In fact, the requirement for identifiable or significant impacts was cemented into the Federal Environment Protection and Biodiversity Conservation Act 1999 by a Howard government amendment pushed through Parliament in February 2007. ‘Impact’ is now defined in a way that prevents this legislation from being used as a vehicle for public interest groups to hold government and industry accountable.

So notwithstanding our governments’ belated concern about coal-fired power generation and global warming, the powers that be are intent on ramping up our coal production. In December 2006, the Australian Bureau of Agricultural and Resource Economics released its report ‘Australian Energy National and State Projections to 2029-30′ which projects, amongst other things, that ‘Over the medium term, Australia’s total coal exports will grow at the average rate of 4.4 per cent a year, reaching 300 million tonnes by 2010-2011. Beyond the medium term (between 2011-2012 and 2029-2030), coal exports are projected to increase by a further 50 per cent to 438 million tonnes in 2029-30.’

The report is worth reading because it actually seems to be a genuine attempt to make informed, objective and accurate predictions about energy production and use. It is also interesting that there was never any question in the mind of the report’s authors that the anticipated output of Anvil Hill and other proposed mines should be included in their projections, despite community protests, active litigation and the lack of formal approvals at the time they were writing. Perhaps it’s not so difficult to make accurate predictions about the inevitable!

Each time our leaders (at all levels) are questioned about their plans to tackle global warming or their approval of questionable developments, their responses are always conditioned by concern about ‘the economy’. Perhaps they should refer to the December 2006 CSIRO publication ‘The Heat Is On – The Future of Energy In Australia‘ where all of the scenarios modelled predicted that both the Australian and world economies would continue to experience strong economic growth while carrying out greenhouse gas mitigation.

Unfortunately, there is no constitutionally enshrined obligation for any elected representative to act or to serve or to represent the best interests of all people in all parts of the community. Keeping politicians aware of their obligations rests with individuals and community groups. Absent political will and leadership, and positive action such as immediate mandatory requirements that companies and governments reduce greenhouse gas emissions, people are seeking their own solutions to official inaction. All over the world public interest advocacy groups and individuals, and even governments themselves, are looking at legal mechanisms to compel corporations and governments to address global warming issues.

Governments are already involved on both sides of climate change litigation, as is illustrated by two recent United States decisions.

The first involved 12 US states and 13 environmental groups suing the United States Environmental Protection Agency (EPA) to force it to regulate carbon dioxide and other greenhouse gases as pollutants. The Bush government contended that the EPA did not have that authority, but on 2 April 2007 the US Supreme Court ruled – by a slim majority – in Massachusetts v. Environmental Protection Agency, 549 U.S. (2007) that the EPA’s refusal to regulate greenhouse gas emissions from cars was ‘not in accordance with law’. Apart from forcing the EPA to deal with the matter properly, the decision is important because the petitioners were found to have standing to bring the proceedings. Unfortunately, however, the effect of the decision is not to resolve the problem but to send it back into the bureaucracy: New Scientist recently reported that a spokesperson for the EPA told it that setting emissions standards ‘is still in deliberation’ and that ‘it could be quite some time’ before a decision is reached. Sound familiar?

In the second case, the State of California sued six big car manufacturers – General Motors, Ford, Chrysler, Honda, Toyota, and Nissan – about costs it will face because of climate change. On 17 September 2007, federal judge Martin Jenkins dismissed the action on the basis that ‘the complaint raises non-justiciable political questions’. Saying that issues of global warming and emissions standards are, at least in the first place, political rather than legal questions again puts the ball back in the regulators’ court: as California’s supervising deputy attorney general, Ken Alex, said, ‘Right now, because the political branches – the federal government, Congress, and the executive branch – have not acted, the state of California is left without a remedy.’

These cases may not be resounding victories but they are important early steps: for example, the Supreme Court decision on standing is helpful to litigants, and the California decision makes it very clear that responsibility for action lies squarely with our elected representatives.

And fortunately California is persisting: it has now filed a lawsuit to secure United States Government approval of the State’s 2002 legislation that requires automakers to reduce vehicle emissions by 30 per cent by 2016. For the law to take effect, California requires approval with a waiver from the EPA which has not been forthcoming despite a request being filed in December 2005.

Within Australia, there is also concern in local government circles about litigation involving the consequences of climate change, such as rising water levels.

Governments at all levels risk being sued, probably mainly for failing to prevent polluting activities within their jurisdiction or failing properly to take environmental impacts into consideration when planning. But even national governments are potentially exposed to actions based on their failure to fulfil their legal duties under either international or domestic law.

In 2002, for example, we saw Tuvalu’s Prime Minister threatened to commence legal action against Australia and the United States before the International Court of Justice.

As recently as September 2007 Tuvalu Deputy Prime Minister Tavau Teii called for urgent action to address climate change because the island nation is slowly being inundated as the ocean rises, citizens are fleeing and studies predict that at the current rate the ocean is rising Tuvalu could disappear in the next 30 to 50 years.

Other impediments to direct action by persons affected, such as the daunting cost of litigation, also appear to be falling away. There are inherent difficulties and considerable expense involved in linking climate change to a corporation’s activities – including providing scientific evidence that a corporation’s activities have contributed to climate change and in quantifying such a change, especially after the previous federal government rejigged the definitions. However, the expense of climate change class actions may have become less of an obstacle after the High Court’s decision in Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd, which seemed to clear the way for litigation funding.

Government and corporate wrongdoers and their officers should now be able to see the forces massing against them. And they should be concerned, because they may well be paying any damages out of their own pockets. Insurance companies were one of the first commercial sectors to see what is coming with global warming and its potential for undermining their entire industry. Their nervousness is apparent from the fact that coverage for liability for pollution and environmental impairment are already excluded in some directors and officers policies, and those and similar exclusions are likely to spread.

The Howard Government belatedly acknowledged climate change as an important issue, but only because the polls indicated high levels of public concern, and it was therefore politically expedient to do so. They then moved to the next phase, which involved reports, reviews, exploring options, talking a lot, making empty promises, entering useless ‘agreements’ like the APEC Sydney Declaration and doing altogether too little, far too slowly. Howard’s 15% ‘clean’ energy target was a prime example: the target was too low, it’s expressed in megawatt hours rather than true percentages of overall consumption, the definition of ‘clean’ was highly contentious and, as critics pointed out, the ‘plan’ didn’t actually increase the renewable energy component from what we have now.

The Rudd Government seems to be on a stronger course with its immediate ratification of the Kyoto Protocol, but it seemed to be hedging its bets at Bali and we still have to wait for yet another report before we will have any real idea of what position it will take. The sad fact is that our State and Federal Governments’ coffers depend so heavily on taxes and royalties from deleterious economic activities that there is a strong temptation not to upset the applecart. The prospect of climate change litigation should add to the many other arguments to ignore this temptation and take strong and early action.

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