By Director of Legal Strategy Elaine Johnson
It has been a big couple of weeks in the world of climate litigation, as three significant judgments were handed down by courts in Australia and overseas in cases against Adani, Shell and Whitehaven.
There’s no doubt that the legal landscape has shifted, and climate lawyers everywhere are busy analysing what this means for current and future cases.
But it’s not just climate lawyers who should be taking note. The latest developments in the law have real implications for the future of fossil fuel projects in Australia. Boards, investors and governments should also pay attention.
On May 25, the Australian Conservation Foundation won its case against the Federal Environment Minister’s approval of Adani’s North Galilee Water Scheme. Adani wants to take billions of litres of water from the Suttor River to service its coal mine. Invalidating the Minister’s approval, the Federal Court found that she is legally bound to assess the impact of the Scheme on Australia’s water resources.
This win is important, because it’s no longer possible for coal and gas companies to avoid scrutiny of their impacts on water resources, which can be substantial, by separating water infrastructure from their mines. It confirms that major coal and gas projects are subject to scrutiny by the Independent Expert Scientific Committee (IESC) for all water impacts. Recently, the Queensland Government relied on IESC advice when it assessed Clive Palmer’s proposal for a greenfield coal mine near the Great Barrier Reef as “not suitable to proceed.”
Next up, on May 26, the Hague District Court delivered a landmark judgment when it found that Royal Dutch Shell has a duty to protect the human rights of Dutch citizens from climate harm. In an extraordinary development, the court ordered Shell to immediately make plans to reduce its global emissions by 45% by the end of 2030, in line with the Paris Agreement goals. That order includes emissions caused by the use of its products globally, known as Scope 3 emissions.
Immediately, climate lawyers around the world got very excited. It’s the first time that a court has found a fossil fuel company liable for climate harm. We all instantly recognised that the Shell judgment opened the door for a range of legal cases in development. If a company like Shell can be held liable for climate harm, this exposes fossil fuel producers everywhere to a heightened risk of litigation. The industry is now one step closer to being on the receiving end of a successful damages claim for climate harm. Boards and financiers around the world will be taking note.
Finally, on May 27, the Federal Court of Australia issued a ground-breaking judgment in a case brought by eight Australian children, led by 16-year-old Anjali Sharma, and represented by Sister Marie Brigid. In the case, the children were seeking an injunction to stop the Federal Environment Minister approving Whitehaven’s Vickery Coal Mine. The court declined to issue the injunction, but significantly, found that the Minister owes a duty to take reasonable care not to cause climate harm to children when deciding whether to approve a new development. The court also found that climate change poses a real risk of death and personal injury to Australian children, and that 100Mt of greenhouse gas emissions from the Vickery Coal Mine increases that risk of harm.
The Sharma case represents a huge shift in the legal landscape. When deciding whether to approve fossil fuel projects, the Minister must now take reasonable care not to cause harm to children. Yet, the science is clear – in order to achieve a safe climate, remaining fossil fuel reserves must be kept in the ground. The latest report from the International Energy Agency found that there’s no more room for new oil or gas fields, or new or expanded coal projects, in a net zero emissions scenario by 2050. It’s difficult to see how a reasonable person in the minister’s position could now continue approving new fossil fuel projects, business as usual.
The events of the last couple of weeks have caused a flurry of interest in the legal world, but it’s not just lawyers who should be taking note. It’s fair to say that fossil fuel projects, their proponents, and approvers, are now highly vulnerable to legal challenge. The walls are closing in, and it’s well past time for a country like Australia to be looking beyond fossil fuels towards a cleaner, smarter, safer future. That’s something that boards, investors, and governments alike should all be noting.