What’s the secret to Australia’s kick-ass record on climate lawsuits

‘This case has made legal history’: young Australians just won a human rights case against an enormous coal mine – The Conversation, November 25 2022

Australasian Centre for Corporate Responsibility expands landmark Federal Court case against Santos – Environmental Defenders Office, August 25 2022

Injunction sought against Woodside’s Scarborough Gas Project to protect Great Barrier Reef – Environmental Defenders Office, June 22 2022

In the last 12 months, two years to 12 months in particular, we’ve, we’ve started to see, in my opinion a turning of the tide.

Today I am talking with Elaine Johnson from the Environmental Defenders Office about climate litigation in Australia. Now, 2022 was a big year for legal victories on climate down under.

Among the big headline wins was the Tiwi Santos case which barred oil and gas company Santos from offshore drilling in the Northern Territory, and another which shut down billionaire Clive Palmer’s plans for a coal mine in Queensland.

As this field matures, we are seeing new frontiers emerge and one of the most exciting trends is lawsuits on greenwashing.

So watch out in 2023 for the lawsuit against Santos for misleading and deceptive claims in its net zero plan.

Don’t miss our conversation, climate litigation is really on a roll globally right now, and this is a great primer on what’s up and coming in a country that’s widely seen as a trailblazer.

Elaine: My name’s Elaine Johnson. I’m the Director of Legal Strategy at the Environmental Defender’s Office.and I’m one of the legal directors oversees our, um, climate change work in Australia.

Denise: So, um, I was really interested to talk to you. It’s been like a really exciting year in Australia for, uh, climate litigation cases. You’ve had a number of landmark victories. Um, but first of all, um, I understood that like your area of work at EDO is you are in charge of, um, systemic change.

And I think one of the interesting things about the, you know, the, the new research on this space, which is changing very quickly, is that, um, it shows that actually, although these cases sometimes they will get a lot of media headlines, uh, however do they actually lead to reduction in emissions And, you know, what is, how can we understood their, how can we understand their impact?

Elaine: Thanks. I, I think that in Australia we have, um, a particularly, um, important role to play in reducing emissions globally.

Um, and that’s mostly through, uh, the exports of fossil fuels that, um, that come from Australia. We’re, we’re a large continent, and, um, we’ve had along history of, um, extracting and exporting fossil fuels, coal, oil, and gas. Um, and that’s been a big part of our history. Um, but moving forward, it’s also gonna have to be, um, a part of our history that we’ll need to leave behind.

So Australia is a big contributor to climate change through our exports of fossil fuels, and, but also we are a country. It is incredibly vulnerable to the impacts of climate change being one of the driest continents on earth. Um, we are already dealing with shortages of water and rivers drying up.

So we are definitely also one of the countries around the world that is very vulnerable to the impacts of climate change. So in, in terms of what needs, you know, what can we do as Australian lawyers to work with our clients around the country to impact on the, the rate at which the climate is changing and the threat that that poses to us and to our, um, our, um, family in the Pacific Islands.

Um, we are very much focused on keeping, uh, remaining fossil fuels in the ground, ensuring that we, um, are part of a very rapid and urgent transition away from, um, the production of fossil fuels towards the cleaner, uh, economy that’s gonna create a safer climate for everyone.

Denise: And so how would you kind of describe your theory of change?

Or maybe you can do that by walking us through two cases which you think are sort of particularly, um, illustrative of, of that impact today.

Elaine: Sure. I think that, um, really we use a range of different legal tools to achieve this goal of, of the transition away from fossil fuels, towards a cleaner economy.

Um, and one of the, um, cases that we, um, filed recently, which was the first case in the world to, um, to make this claim in a court, um, was a case against Australia’s largest gas company Santos, um, which in which we’re acting for the Australasian Center for Corporate Responsibility (ACCR). And in that case, um, we are challenging claims made by Santos that it has a credible pathway to net zero by 2040.

And this was the first time globally that a fossil fuel company has been challenged in court, um, to essentially justify and back up its claims that, um, that, that the company can continue to operate and has a credible plan to reduce emissions to net zero by 2040.

And of course, we know that the biggest challenge that we face to reducing emissions globally is that energy transition, um, piece of work that needs to be done. So it’s really important that those companies that are engaged in the extraction of fossil fuels, um, that are also claiming that their business is consistent with a safe climate, um, need to be, um, able to back those claims up with credible, um, evidence.

So that case is in the court at the moment. Um, we, we haven’t had a hearing and there’s no judgment yet. Um, but we know that simply, um, having brought that case and having it move through the federal court system, um, is already having an impact on operators in the region. So other major fossil fuel producers are looking at that case and thinking, well, I don’t wanna be the next Santos being dragged through the federal court to have to explain.

How I’m justifying our net zero plan. And so we’ve already seen some of these companies start to change the way that they talk about, um, their plan to achieve, um, net zero by a particular date. So we can see that’s already, um, having an effect on the behavior of, um, fossil fuel companies and their boards.

Denise: I mean, that’s, um, super interesting that, you know, Australia would bring the first case on that. And, um, one thing I’ve understood about these cases is that, you know, the legal profession is sort of has to scramble to get the literacy and the sort of, um, I don’t know, the, the quantitative piece, uh, together to bring the case.

And actually the judges themselves, I think, uh, you know, have a learning curve as well. Um, so I’m, I’m wondering, I mean, can you give us some details of what they were zeroing in on, you know, which were, um, the bits of the net zero that this case, um, focuses on.

Elaine: So this case focuses on that claim as a whole and whether or not it’s credible.

So what, um, what our clients are looking at in this case and what the court will have to see evidence on is, um, how is it that, um, that net zero claim can be made? Um, so it’s looking at things like, um, the likelihood of carbon capture and storage, for example, being realistic or credible pathway for a company like Santos, um, you know, blue hydrogen, where does that sit in the transition to, uh, a green, um, a green economy?

So it’s, looking at some of the real, um, I guess, fundamental claims that are made by this industry, um, around the world. And we hear, you know, carbon capture and storage is, is really relied on heavily by, um, the fossil fuel industry globally as a way in which the industry can continue to operate business as usual.

So it’s, it’s putting claims to the test, putting that technology to the test and having, um, experts come and give evidence to the court, um, about, um, how credible those claims are. And that’s, that’s kind of evidence that our clients will be bringing to the court in that case.

Denise: One thing that I find fascinating is that the ability of these cases to raise the bar for, um, corporate accountability, for reporting standards for the need to consult deeply and broadly with, indigenous communities and local landowners.

Um, , but you could also argue that perhaps because, um, what you’re up against is companies with almost like infinite, uh, material resources, um, human resources, lawyers, teams, researchers, uh, money, um, that perhaps at the end of the day, this is just a delaying process. Um, I mean, what, what are your thoughts on that?

Its a very worthy battle. But if you look at the tactics on the other side, you know, a lot of, um, the fossil fuel lobbying industry is now engaged in not so much climate denialism, but rather delay-ism. And, uh, and, and actually net zero plans are a really a key component of that.

Elaine: I think that’s right and that’s, you know, one of the reasons why, um, the, the case that we are bringing in the federal court on the net zero claims is so important because, um, we know that if we are actually going see a reduction in emissions, which is what we need to see urgently and at a rapid pace, that’s only going to happen if we are also being, um, if we’re also being truthful and honest about the source of emissions and how we’re going to reduce them. So I think it’s a really important case for testing out the, um, the credibility and the reliability of, of those sorts of claims to make sure that we’re actually on a pathway towards reducing emissions as opposed to just saying that we’re on a pathway to reduce emissions. But in reality, nothing’s happening. And I think we’ve seen, you know, very little actual progress in terms of reducing emissions, and certainly not at the rate that we need to be moving now. So the kinds of cases that the EDO are about bringing the reality of climate change, the science of climate change, and the science of climate solutions into the courts where you can have a, um, an independent arbiter essentially listen to the evidence on both sides and make a judgment and a decision about, um, which, which, where the weight of the evidence falls and which.

Which argument is more credible in terms of the science? And, and so one of the, um, I guess one of the strategies that we use at the EDO is looking for opportunities to bring that science and bring the evidence and bring the voices of First Nations peoples into the courts so that, um, so that judges are able to, um, you know, independently arbitrate this discussion and this narrative that happens, um, so easily at a political level, but it’s much more difficult once, um, you’re challenged to bring, um, to bring those narratives that the industry, um, spins around the globe and bring them into, um, a court process and, and justify that narrative before a judge.

Denise: So, um, I wanted to ask if you could speak about a keeping it in the ground case. Um, and I know there’s been like a very interesting one in Queensland recently. Perhaps you could talk about that. That was a, um, quite a spectacular victory, I believe, for EDO.

Elaine: So, um, so in Australia, unlike, um, many other countries around the world, we don’t have a bill of human rights, um, or constitutionally protected human rights in this country.

But we are seeing, um, states around the country, other jurisdictions within Australia, um, start to bring in their own human rights legislation, and that’s what’s happened in Queensland. So in Queensland we have a Human Rights Act which talks about government decision making, needing to be compatible with human rights.

And there’s a range of human rights that are protected under that legislation. So our team in, uh, Queensland brought a case on behalf of Youth Verdict, which is a group of young people including young First Nations Australians, um, who have essentially, um, taken on one of the biggest coal projects in the country which is a, a project called the Galilee Coal Project, proposed by Clive Palmer, who’s a Australian, uh, billionaire essentially, and, and does a lot of mining projects around the country.

Our clients argued before the land court in Queensland that the Galilee Coal Project should not be allowed to proceed because to do so would infringe the human rights of young people, infringe the human rights of First Nations Australians and that it would do that in a number of different ways, including impact on cultural rights, property rights, and right to privacy and right to life.

So that was a really important case for the EDO to bring because it was the first time that human rights have been used in Australia to essentially challenge, uh, extraction of fossil fuels, um, and a, a major, um, coal proposal. Um, and the judgment that came down from the land court last month, um, was supportive of our client’s claims so that there was a really strong judgment from the court, which found that were it to approve this coal project that that would have irreconcilable impacts on the human rights of Australians.

And so on that basis, the court recommended that the coal project be refused, and that has obvious implications for all other coal projects in Queensland that are subject to the same human rights legislation. So we’ll see whether that decision goes on appeal or not.

Um, but certainly the first instance judgement is very strong. Well, there’s a certain time limit in which the respondents might appeal. Um, and we’ll have to wait to see, um, whether that eventuates. But in the meantime we’ve got a, a very strong judgment, uh, which, which clearly recognizes the human rights impacts of, of climate change and of coal projects as well.

So the direct impacts and the indirect impacts.

Denise: Um, you mentioned earlier that one of the interesting things about this work is also how, uh, these cases are challenging the systems within the legal system, uh, and how, you know, evidence is heard.

Uh, I wonder if you could talk about that because I think, um, Uh, you know, in international policy processes for example, there’s a lot of talk about including, you know, the voices of marginalized, but often it’s not really on their terms because you have to travel to the UN, you have to, you know, stand on a stage, you have to deliver your message in a certain kind of way. So perhaps you could talk about that.

Elaine: So in the, um, human rights case that we ran for Youth Verdict in Queensland, um, as part of the preparation for the hearing of the case, our clients advocated for evidence from First Nations witnesses to be heard in accordance with cultural protocols.

And what that meant was we were asking the court to make orders for evidence relating to custom and culture to be given in accordance with customary law and to be given on country. So it was the first time that the Land court, um, which hears all of these applications mining projects as were, as well as other major projects in Queensland was invited and accepted the invitation out to hear from First Nations witnesses on country, um, to be welcomed on country.

The court was welcomed on country by the First Nations, uh, communities. And that was the first time that, that, that the court had conducted one of these hearings in that way. And, um, the, the court now is looking to, um, formalize that, um, process in the court rules about how these sorts of hearings occur.

So it was a really important, uh, role for the EDO to play, um, to interrogate the judicial, um, the judicial process itself. And ask is this the process that, um, is facilitating, um, evidence from First Nations witnesses who are really at the center of the heart of this case, which is about cultural rights and human rights.

We worked with, uh, not only our clients, but other, um, first Nations peoples, including legal experts, um, to put together a really detailed protocol for the court as to how it ought to hear evidence, um, from, uh, from witnesses who, who needed to give evidence on country with their community in accordance with custom and culture.

So it was a, it was a shift in the actual legal process itself and legal profession, and we’ve seen that example followed in other cases, uh, including a case that, um, the EDO ran for, um, Tiwi Islanders in the Northern Territory of Australia, um, where, um, we were also successful in the federal court in obtaining orders to have the court travel to the Tiwi Islands in the Northern Territory in hear evidence from First Nations witnesses on country, um, in that jurisdiction.

Denise: Where, where are they? Are they outdoors? Are they indoors? What’s happening?

Elaine: So it’s outdoors. Um, and uh, what that means is that the judge and the, the court staff, the, um, barristers and the lawyers for, um, all of the parties that were represented in the case traveled to communities who were giving evidence about the impact of the coal mine and the impact of climate change, um, on country. And what that involved was really, um, quite. extraordinary, but we hope it becomes ordinary. The judge and the court and all of the court staff and the lawyers were welcomed onto country and this is the way that the hearing began.

And that involved traditional smoking ceremony and to be welcomed by the community onto country to. Hear that evidence. And, um, it happened in a number of different places, um, around Queensland, um, including on some of our, um, more remote islands where the impacts of climate change are already being, um, felt from communities, um, living in some of those low lying islands in Northern Australia.

So it was really important for the court to go to those places and see, um, see the communities that are expressing concern and to hear from those communities on country and to see the impacts of climate change that are already occurring in some of these, um, low lying islands in the north of Australia.

Denise: That’s very powerful. I mean, if you could do that everywhere, if all politicians who were making decisions on their net zero plans could do that, I think we would be in a different world. Right?

Elaine: Yes. And, it was really interesting that when the judgment was handed down, um, last month, the judge actually thanked, um, thanked the communities for welcoming the court, um, onto their country and for, um, for everything that she had learned through that experience.

And, um, it certainly carried through. I think that experience carried through to the judgment that was ultimately handed down. And, um, it was a very, um, important day, I think when that judgment was handed down for, um, not just our clients, but for the broader community in Queensland.

Denise: So, um, let’s talk about some of the challenges. I mean, what you are doing seems highly disruptive to, um, a whole bunch of vested interests in a country like Australia. Uh, and I would imagine that the mining companies are also paying close attention to what’s happening. What are the challenges? How, how are the vested interests fighting back? How are they changing their tactics as you go forward with this, this work?

Elaine: Oh, it’s, it’s such a good question and there are so many different. I mean, every day we learn something new about the impact of our work on this industry and the response from corporations. But, um, I think that, um, one of the biggest challenges that we face is the narrative. So we have, um, a very, I guess, well resourced and well coordinated industry in coal and gas which has a very easy access to politicians and to the political process. Um, and also a really, um, well, uh, well drafted and coordinated narrative around, um, fossil fuels being part of the transition. Um, that gas is a transitional fuel that will help us get to renewables at some point in the future.

That Australian coal is cleaner than other coal that might be, uh, produced in other parts of the world, so therefore we should keep producing coal here. So these are some really, um, well constructed, powerful narratives that are constantly brought up through mainstream media and through every conversation that industry has around, um, the role of fossil fuels in the energy transition. So that’s, I think, one of our biggest challenges.

Um, as lawyers, we can address parts of those claims through, for example, misleading and deceptive conduct claim, um, as is occurring in the Santos and net zero claim case.

But we also need to work with of course partners across, across the spectrum of civil society, to work together to achieve the kind of major transformation that we need to see in society, um, to bring emissions down to safe levels. And, and that includes, as lawyers at the EDO working with, um, activists who, um, might occasionally get into trouble with the law when, um, when they’re voicing their opinion about, um, fossil fuel production and expansion in this country.

We have a, um, a really wonderful program for defending the defenders where we have some in-house criminal lawyers who, who appear in court on behalf of activists who are, are caught up in the legal process. We also run systemic litigation aimed at ensuring that that space in democracy is preserved for the voice that challenges that very strong narrative that industry, um, and government continues to perpetuate in this country.

We’re also in, um, the Supreme Court in New South Wales, um, challenging, um, anti-protest laws on the basis that those laws are unconstitutional because they, um, infringe on Australians implied freedom of political communication. So there’s lots of different ways I think as lawyers we engage with, with, um, addressing that narrative.

Um, but of course we don’t do it alone and we do it alongside First Nations communities alongside climate activists alongside corporate change activists. So it’s, it’s a whole, it’s a whole ecosystem, if you like, of, of people working together towards a common cause.

Denise: I wanted to ask about the corporate change part, uh, apart. What are you seeing in terms of like on the regulatory side in terms of the impact of your work is, um, how is the notion of corporate accountability, the social license to operate all of these things? What sort of change are you seeing in that space?

Elaine: I think we’ve seen an acceleration of interest from regulators in Australia, corporate regulators in Australia, um, particularly, uh, post, um, us with ACCR filing the misleading and deceptive conduct claim against Santos that we’ve been talking about.

Definitely a huge interest in understanding more about climate change, about narratives that are employed by industry to allow business as usual and wanting to know what the science says, um, versus what the claims, um, might be saying.

And so we’ve been, um, really interested to see that quick response from the regulators, um, who are, who are talking to our lawyers and saying, well, you know, what other claims do you think might need investigating?

And providing that sort of information to regulators to ensure that all, you know, all of these sorts of claims made by industry are investigated and if necessary prosecuted. So the EDO can’t run every case against every claim, but, um, we’re pleased that our corporate regulators are taking an interest in wanting to really crack down on these sorts of claims from industry.

Denise: That’s very encouraging. Um, so I guess my last question to you is, um, looking ahead. Um, you know, we’re, uh, we are recording at the end of 2022, and I’m wondering what are the big cases that you’re looking at in 2023? Are there any new trends that are popping up, you know, or are there any new areas that, um, you know, EDO is starting to move into?

Elaine: I think one of the areas that, um, is gonna be really interesting to follow in, um, coming years is, um, around corporate accountability for loss and damage. So as we start to see the impacts of climate change, the very real impacts of climate change being felt on the ground, um, in Australia and in the Pacific, um, that we’ll start to see claimants and plaintiffs bringing, uh, these sorts of claims against those who are essentially majority responsible for the climate crisis and for perpetuating and continuing that crisis into the future.

Um, so I think that’s definitely an area where we will see, um, new and exciting, um, forms of litigation happening around the world.

It’s about also bringing those voices of those who have been impacted by climate change to the doorstep of those who are causing and have caused that harm and, and requiring those companies to answer for the damage that has, has occurred and is going to be occurring into the future.

It’s gonna be interesting to see, um, where those claims go. There one of course that’s already been filed, um, in, in Germany by a Peruvian village, and I think we’ll see a lot more of those types of cases coming through the woodwork in the next couple of years.

Denise: Can you say a bit more about that case in Germany? Elaine: well, it’s brought against a German power company, um, for damage to, um, that, that is likely to occur to a village in Peru. So it’s a transnational, um, climate case and, and it’s probably the first transnational climate case that we’ve seen.

But I think we’ll start to see more and more of those types of cases. Um, and, and cases like that being brought against really, you know, the carbon majors that have known for a very long time that the damage that’s now been experienced in places like the Pacific, in Australia, um, is attributable to their business and their activities.

And so I think we’ll start to really see that ramp up in the next, in the next few years.

Denise: Um, and I mean, has anything surprised you as, as you, you know, when you’re doing this, does it, um, is it exceeding your expectations or, um, is, are you, are you, what, what, you know, what’s surprising you as you go through?

Elaine: I think that, um, what surprised me is, um, that in the last 12 months, two years to 12 months in particular, we’ve, we’ve started to see, in my opinion a turning of the tide. It’s slow, but it’s happening. Um, 10 years ago, I don’t think we could have hoped to have won a case like the Galilee Coal Project, um, case because we just weren’t at that point in, um, Australia where.

I think courts were ready to, to start refusing coal mines on the basis of climate change impacts. Um, but I feel that we are getting to a point now where the science is so clear on the impacts of climate change are here and we’ve had horrific bushfires, um, tear through the entire country over many, many months, um, only a couple of years ago.

And drought, floods, regular bleaching of the Great Barrier Reef, which is one of our national icons and, and recognized around the world as a really important, um, world Heritage Site. So I think it’s, it’s the strength of the science, the awareness of people within the judicial system as well as outside of the judicial system, that climate change is here, that the crisis has started, and that there’s an urgency now to start to, um, to draw back away from those, um, industries that have, have caused the problem and start to really, um, to really go in a different direction.

So it’s been slow, but I’ve been surprised. We’ve had a number of really significant wins in the last 12 months in particular, and I hope that we’ll be now on a trajectory towards more, more of those wins in the next year.

Denise: Um, and has the media been a factor in that? Uh, you know, because I know during the bush fires you are still, um, you know, hampered by this, Hmm, what can I call it? Um, the Murdoch climate denialism machine. Um, is, is the media landscape now also, um, blowing the good headwinds your way.

Elaine: I think again, it’s um, you know, there is a really strong narrative that industry has built and, and to challenge that narrative is going to take more than just legal cases,

And so I think that is really the big challenge for us is, is understanding in the broader community that, that fossil fuels aren’t part of the future. If we are talking about. A safe climate and we’re in the climate crisis now, if we can see that. I think joining the dots between the industry that has been so long a part of the Australian identity in many ways, um, is now, um, really inconsistent with us, uh, wanting to live safe safely, live in a safe climate and a safe environment, um, and to manage. And to be able to manage the kinds of, um, risks and, and disasters that we’re already seeing unfold in Australia. So I think the media could play a stronger role in, in joining those dots. Um, but yeah, it, it’s a, it’s an uphill battle, I think.

Denise: Well, thank you so much. It, it’s a great pleasure talking to you, and I wish you all the best with your, um, fantastic work going ahead.

Elaine: Thank you. Thanks, Denise.