Available scientific climate change evidence to provide strong basis for future litigation - Climate Change

The judgment in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 (Bushfire Survivors), handed down on 26 August 2021, is the greatest indication yet in Australia that available scientific evidence on climate change provides a strong foundation upon which litigants will base their claims.

"On the evidence, at the current time and in the place of New South Wales, the threat to the environment of climate change is of sufficiently great magnitude and sufficiently great impact as to be one against which the environment needs to be protected."

Chief Justice Preston

On 6 August, the Intergovernmental Panel on Climate Change released the first component of its highly anticipated Sixth Assessment Report, AR6 Climate Change 2021: The Physical Science Basis (b>IPCC Sixth Report). The IPCC Sixth Report contains the most current and extensive scientific analysis of the status, and predicted future impacts, of global climate change to date. It assessed 14,000 peer-reviewed scientific studies to conclude that it is unequivocally clear human influence has caused significant warming of the atmosphere, ocean and land.

Four days later, the IPCC Report was tendered in evidence before the NSW Land and Environment Court (b>LEC) in Bushfire Survivors. In this case, the plaintiffs sought and obtained an order of mandamus compelling the NSW Environment Protection Authority (b>EPA) to "develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change".

It was argued that the statutory duty under section 9(1) of the Protection of the Environment Administration Act 1991 (b>POEA Act)evidently requires the EPA to develop policies that protect the environment from the most 'grave' threat of all, climate change. The LEC agreed that the EPA had such a statutory duty and had failed to fulfil that duty.

Key takeaways

This Insight details the key legal and commercial takeaways from these developments, and their implications for companies and proponents of major infrastructure and resource projects, and for climate litigation in Australia more broadly. These include:

the IPCC Sixth Report is expected to continue to be used as a component of expert evidence in any type of litigation where climate change grounds form part of the legal challenge. It is also likely to be incontrovertible and accepted by the Courts as evidence of the risks and threat of climate change;
the law is not static, and must evolve and adapt to the most recent scientific evidence available. The statutory language, particularly 'environment protection' in the POEA Act (and any similar language in other statutes), needs to be interpreted according to contemporary standards. This means that climate change, as a threat and risk to the environment as evidenced by the IPCC Sixth Report, is one of the matters in which the EPA must exercise its statutory duty to develop and implement policies for environment protection;
how the EPA will respond to the Bushfire Survivors judgment, either through an appeal or by complying with the mandamus orders, is unclear at this point. If the EPA accepts the judgment and does not appeal, it will likely develop policy instruments that more meaningfully and responsively engage with climate change. This may take the form of new strategies to mitigate the effects of climate change, including the imposition of requirements on major GHG emitters. For example, the EPA could impose a condition on an Environment Protection Licence to take certain steps to advance the achievement of Australia's Net Zero objective by 2040, in alignment with the NSW Climate Change Policy Framework and the NSW Net Zero Plan Stage 1: 2020–2030;
the global context of climate change and surrounding science is a material consideration when applying the public interest test enshrined in Australian environmental and planning legislation. We are likely to see more frequent legal challenges in all Australian jurisdictions alleging failure by a decision-making authority to properly take climate change into account when approving a GHG emitting project;
the Bushfire Survivors proceedings represent the second successful action brought in 2021 resulting in a finding that a public decision maker has a duty to consider, address and mitigate climate change. In conjunction with the determination in Sharma v Minister for the Environment [2021] FCA 560 (orders made in Sharma v Minister for the Environment (No 2) [2021] FCA 774)* (Sharma), this case highlights that the NSW and Commonwealth Governments, and public agencies, are likely to continue to be pressed by the courts to step up the policy framework, assessment and consideration of the impacts arising from climate change; and
given these developments, there is likely to be an increased sensitivity to, and awareness of, the materiality of climate change considerations by decision making authorities when making determinations. As a result, it is imperative that any applications by a proponent for an approval, licence or funding linked to a major GHG emitting project, fulsomely address both the contributions to climate change that may be caused by the project and the impacts of climate on the project. This includes consideration of the longer term impacts of climate change.

Understanding the IPCC's Sixth Report

Before considering the implications of the IPCC Sixth Report for climate litigation in Australia, it is important to understand the scientific evidence outlined in the Report.

The first component of the IPCC Sixth Report represents a significant progression in thinking compared to the FifthAssessment Report (IPCC Fifth Report), released in 2013/14. While the IPCC FifthReport observed that the global climate was changing partly as a result of human activities, the IPCC Sixth Report now concludes that "it is unequivocal that human influence has warmed the global climate system since pre-industrial times".

Relevantly:

anthropogenic warming is assessed to account for a 0.9 – 1.2 degree Celsius increase in global mean surface air temperature between 2010 and 2019, while an increase of only 0.1 degrees Celsius is attributed to natural warming;
global temperatures are now warmer at any time than they have been in the last 125,000 years, with the IPCC Sixth Report anticipating that warming will continue until at least 2050; and
notably, the Report concluded that even if global net zero is achieved by 2050 with negative emissions thereafter, the chance of limiting global warming to 1.5 degrees Celsius as articulated in the goals of the Paris Agreementis now less than 50%.

For Australia specifically, this state of play entails increased risk of droughts, elevated vulnerability to sea level rise, intensified storms, tropical cyclones, heatwaves, and longer, more frequent bushfire seasons. The outcomes are starkly different under the following two scenarios discussed in the report:

High Emissions Scenario : under a high emissions scenario, Australia is anticipated to lose 50 – 200 metres of shoreline due to sea level rise; and
Low Emissions Scenario:the positive effects of a low emissions future would be physically visible to human society within 20 years. Commitment to this 'low emissions future' would entail limiting the global carbon budget to 300 billion tonnes of carbon dioxide, a quantity which would be fully expended in seven to eight years at the present rate of emissions. The low emissions pathways envisioned in the IPCC Sixth Report are furthermore contingent on the achievement of a negative emissions scenario by 2050, where the amount of carbon dioxide being removed from the atmosphere would outweigh the quantity being emitted.

Implications of IPCC findings for climate change litigation

The implications of the IPCC's Sixth Report in the context of climate change litigation are anticipated to be threefold:

Expert evidence: first, the IPCC Sixth Report is likely to be used as a component of expert evidence in any type of litigation where climate change grounds form part of the legal challenge. This is clear from the Bushfire Survivors litigation, where the LEC accepted the IPCC's Sixth Report as decisive evidence of the current threats to the NSW environment and the magnitude of the risk posed by climate change;
Decision making risks : secondly, as articulated by the Federal Court in its recent judgment in Sharma, the global context of climate change and surrounding science is a material consideration when applying the public interest test enshrined in Australian environmental and planning legislation. It follows that Government decision makers will need to consider the IPCC's 6th Report when exercising their powers, and in particular when granting approvals for projects associated with a significant increase in GHG emissions. If they fail to do so, this is likely to result in legal challenges to those project approvals on climate change grounds; and
The law must evolve : in determining that the EPA had a duty to 'ensure environment protection' from climate change, the LEC in Bushfire Survivors emphasised that an appropriate, principled construction of the POEA Act requires its language to be 'ambulatory' and responsive to evolving threats to the environment. This means that the text of the statute must be interpreted in the context of scientific evidence that highlights environmental threats that are of the greatest magnitude and impact. The LEC accepted the findings contained in the reports of the IPCC and other scientific papers, stating:

"[The] IPCC Reports and scientific evidence... establish that the emission of greenhouse gases is a grave threat to the atmosphere and climate systems.

...

The LEC held that the objects of the POEA Act and the purposes of the EPA require this duty to be carried out having regard to the principles of ecologically sustainable development, with the goals of reducing risks to human health and preventing the degradation of the environment. However, it qualified this finding, stating the statutory duty cannot be construed so specifically as to require the formulation of policies aimed at limiting global temperature rises to 1.5 degrees Celsius above pre-industrial levels. On this point, Chief Justice Preston concluded in Bushfire Survivors that:

"I would formulate the aspect of environment protection in respect of which environmental quality objectives, guidelines and policies need to be developed as being simply 'climate change', as this term is sufficiently wide to embrace the phenomenon itself, as well as its causes and consequences."

Areas at greatest risk of legal challenge

It is anticipated that legal challenges to commercial ventures and projects associated with significant volumes of GHG emissions will primarily take five forms:

challenges seeking to require government decision makers to exercise statutory functions in a way which involves the adoption and implementation of appropriate climate change policies for the protection of the environment, as per the decision in Bushfire Survivors;
challenges to government decisions in the form of human rights-based claims. In the absence of human rights legislation (for example, in NSW), the claims may be framed in tort as a breach of the duty of care to prevent and mitigate climate change to prevent harm to persons;
actions against major GHG emitters to seek injunctions restraining those companies from certain activities or to compel companies into action. For example, claimants may take action seeking to require major emitters to adopt and implement emissions reduction policies to achieve reductions in GHG emissions by a certain date, such as the claim successfully made out in Milieudefensie et al. v Royal Dutch Shell plc (2021). This decision was canvassed in our recent Insight piece;
challenges to specific project approvals on the grounds of ecologically sustainable development and the public interest test, in line with the precedent set in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 'Rocky Hill'and Sharma; and
actions against companies, directors and advisors for a failure to appropriately identify, assess, act upon, mitigate and disclose material climate-related risk exposures to key stakeholders (being investors, shareholders, consumers, employees and regulatory bodies).

Courts forcing Government Action on Climate Change

The findings within the IPCC's Sixth Report are likely to propel the readjustment of global targets for greenhouse gas emissions reductions at the United Nations Climate Change COP-26 in Glasgow in November 2021. It is not yet clear whether the Australian Government intends to alter the country's nationally determined contribution under the Paris Agreement. It may do so in response to increasing international criticism – exemplified by the recent statements from the US Presidential Climate Envoy and Deputy Presidential Climate Envoy that "as a G20 member, as a leading developed country – the commitments [Australia] made in Paris are not sufficient" and are "inconsistent with what the science is suggesting".

However, it is clear that if there is a deficiency in a government's response to climate change, the courts may provide a forum in which to bring policy and government decision making into alignment with contemporary climate change responses and targets.

The Bushfire Survivors proceedings represent the second successful action brought in 2021 resulting in a finding that a public decision maker in Australia has a statutory duty to consider, address and mitigate climate change. In conjunction with the finding in Sharma, this case highlights that the NSW and Commonwealth Governments, and public agencies, need to specifically address the issue of climate change in policy and decision making processes.

A future Federal Court decision may reinforce this position, with judicial review proceedings recently launched by the Environment Centre NT challenging the validity of a $21 million grant made by the Commonwealth Government to Imperial Oil and Gas to undertake shale gas exploration in the Beetaloo Basin.

As a consequence of the orders made in Bushfire Survivors, the NSW EPA will now be required to develop instruments that more meaningfully and responsively engage with climate change.

This is particularly the case in light of the LEC's finding that none of the current EPA policies or regulatory strategies sufficiently or concretely addressed the issue of climate change and GHG emissions. The LEC emphasised that 'aspirational statements' regarding the monitoring and regulation of GHG emissions were insufficient, and that the EPA must define which "approaches, tools or measures it will use to achieve [the] outcomes or objectives... [and] identify any criteria against which achievement of the outcomes or objectives must be measured".

Cumulatively, these developments emphasise that the state of play surrounding climate change is rapidly shifting. Climate issues have been squarely repositioned as material issues which, if not robustly engaged with by governments, agencies, regulators, corporate entities and directors alike, may come with attached litigation risk.

* At the time of writing, the decision in Sharma is on appeal to the Full Federal Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.