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The young Australians suing for climate action

Aug 11, 2020 • 15m 14s

Two Australians have launched court cases in an attempt to radically overhaul the way our government and big corporations are responding to climate change. Today, lawyer Kieran Pender on the story of climate litigation in Australia and what’s at stake.

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The young Australians suing for climate action

284 • Aug 11, 2020

The young Australians suing for climate action

RUBY:

From Schwartz Media, I’m Ruby Jones, this is 7am.

Two new court cases are trying to radically overhaul the way our government and big corporations are handling climate change.

Today, lawyer Kieran Pender on the story of climate litigation in Australia and what’s at stake.

**

RUBY:

Kieran, can you tell me a bit about some of the legal cases that you've been reporting on for The Saturday Paper? Who are the people suing over climate change?

KEIRAN:

Sure. Well, there’ve been two cases just recently that have hit the headlines. One, Katta O'Donnell, who's a 23 year old law student at Latrobe University.

Archival tape -- Katta O’Donnell:

“I can't even remember a time when climate change wasn't a concern to me…”

KEIRAN:

She was getting a guest lecture from a climate lawyer a year or so ago and was struck by inspiration to act in this space. So she's suing the federal government with the help of that climate lawyer, a guy called David Barndon.

Archival tape -- Katta O’Donnell:

“I've just been really interested in the financial risks of climate change since I heard my lawyer come to university and give a lecture about it…”

KEIRAN:

Katta is arguing that the government in issuing sovereign bonds, failed to disclose material financial risk to those bonds and that material risk being climate change and the impact that the climate crisis might have on the Australian government and the Australian economy.

Archival tape -- Katta O’Donnell:

“Most people are invested in government bonds through their superannuation account. So
investors need to be aware that climate change is going to have a severe impact on our economy and therefore the value of government bonds.”

KEIRAN:

So if that succeeds, it'll be really seismic. And then David's also acting for another young person, 25 year old, called Mark McVey, who's suing his Superfund REST super. Mark was searching online for what his Superfund was doing to address climate change and take climate risk into account in those investments they make on his behalf. And he found nothing. So he wrote them an email saying, what are you doing? And, you know, they didn't respond adequately and so now he’s suing them.

RUBY:

OK. It's one thing, I guess, to be upset at the way in which governments and organisations are dealing with the climate crisis, but suing is another thing altogether. So what has taken them to this point?

KEIRAN:

I think they feel that both the government and corporations aren't doing enough. So for Katta, she said to me, you know, she's so upset and angry that it takes this, it takes young people like her and Mark to bring the government and big corporations to account. But ultimately, not enough is being done on the climate crisis, and therefore, they've resorted to the courts to take action.

Archival tape -- Katta O’Donnell:

“The current way that the government is dealing with climate change leads to despair for me a lot of the time, I see almost denial and inaction and it's really disheartening to have our leaders not take this risk seriously.”

RUBY:

Let's take a step back then. What is the precedent for this, for taking legal action on environmental issues like climate change?

KEIRAN:

Australia has quite a rich history of environmental litigation. Really, in the 70s and 80s. People began to contest planning decisions, ministerial decisions around development and projects on environmental grounds. So it's not really that surprising that climate was the next step. And in 1994, we saw the first court case consider climate change in the approval of a coal power station and the New South Wales Land Environment Court, they approved the project, but they said that the developer had to take a number of steps to mitigate the climate impacts.

So really, ever since then, climate has been on the agenda for Australian lawyers seeking to address the climate crisis. And there've been many cases of that nature. One of the people I spoke to for this article was Elaine Johnson, who's at the Environmental Defenders Office and she's really been pioneering these cases. She led a case for the EDO recently, it's called the Rocky Hill case, the Gloucester coal mining case where the New South Wales Land and Environment Court blocked a development on climate grounds.

Archival tape -- Unidentified Group:

“We’ve won? We’ve won everybody!” [Group cheers].

Archival tape -- Unidentified Reporter:

“The Land and Environment court knocked back the proposal for the Rocky Hill mine, declaring it would be in the wrong place at the wrong time.”

Archival tape -- Unidentified Speaker:

“The judgment is, I think the first big piece of climate change litigation that this country has seen.”

KEIRAN:

And that was a real turning point for that sort of litigation.

Archival tape -- Unidentified Reporter:

“The mine was rejected because the judge said it would cause substantial social and environmental harm and contribute to climate change.”

RUBY:

Keiran, you’re saying we’ve seen court action that has attempted to block coal fired stations on planning grounds. And then, also, action that’s blocked mines on climate grounds. But has this actually worked, in terms of I guess, the ultimate goal of reducing emissions?

KEIRAN:

We've had some victories in the court, the Rocky Hill case last year was one notable example, but I think impetus for this more creative approach to climate lawyering has come about on the basis that we haven't yet done enough. And those cases aren't achieving a sufficient traction in addressing the climate crisis. Australia is one of the largest countries in terms of extracting fossil fuels.

I think we're fifth or sixth in terms of the amount of fossil fuel that we dig up from the ground and then export around the world. So you know, there've been some successes. There've been failures. But I think governments are getting better at bypassing those decisions when they don't like them and corporations are becoming more aggressive in the courtroom. But we need to have more impact and we need to have more impact now. And so the time was right, for more decisive action in our courts

Lawyers all around Australia and really all around the world are beginning to think, well, what other legal tools do we have in our arsenal? And they're really pushing the law and exploring different avenues that could be used to achieve climate action. You know, the McVeigh and the O’Donnell cases by Mark and Katta, they don't have precedent. They're new, but they build on existing law to try and push climate action to say that, you know, the law needs to develop in light of the climate crisis.

RUBY:

We’ll be back in a moment.

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RUBY:

Kieran, we’re talking about two new legal cases here in Australia that are attempting to hold the government and companies to account for the risks associated with climate change. What is influencing lawyers to launch these kinds of cases?

KEIRAN:

There's been a lot of litigation all around the world in New Zealand, in the UK, in the US, probably the pivotal case globally and what's really seen as something for Australian climate lawyers to aim for is a case in the Netherlands called the Urgenda Case, where a nonprofit foundation sued the Dutch government on negligence grounds. So just as if you're in a car accident, you might sue the other driver for personal injury on negligence grounds. They took that concept and applied it at a macro level.

Archival tape -- Unidentified Reporter:

“Dutch Climate Organization Urgenda filed the original case some nearly six years ago on behalf of nearly 900 plaintiffs.”

Archival tape -- Unidentified Speaker:

“People are burning, drowning, you name it, we need to realise this is time for action, this is no game we have to act now.”

KEIRAN:

I think they probably didn't expect to win. It was really speculative, really creative. And yet they won and they won. And it went up to the Dutch Supreme Court and they won again.

Archival tape: [Judge reads verdict (in Dutch) and the crowd cheers]

KEIRAN:

Now, they're currently contemplating what coal power stations they're going to close.

Archival tape -- Unidentified Reporter:

“Climate activists have been celebrating the verdict which forces the government to reduce emissions by 25 percent of 1990 levels by the end of next year.”

KEIRAN:

The Urgenda case was led by a Dutch lawyer called Roger Cox and he gave a speech during that case where he said that he thought that other avenues had failed and courts were our only hope in addressing the climate crisis.

Archival tape -- Roger Cox:

“The law and our courts are the only remaining institutional tools left in our democracy to free ourselves from the dangers that our governments pose to us.”

KEIRAN:

And those words and his efforts really inspired a number of the lawyers in Australia that I spoke to who were hoping to bring similar or related actions to achieve the same sort of impact that he'd had, here in Australia.

Archival tape -- Roger Cox:

“Now it may take a global pack of lawyers and a lot of support for legal support to make it happen but there is no doubt in my mind that this can be done.”

RUBY:

Could a case like that be run here in Australia?

KEIRAN:

Dutch negligence law is slightly different to Australian law, but not significantly so. And certainly I spoke to a number of people, one in particular, Tim Baxter at the Climate Council, is recognized as an expert on this question. And he was of the view that an Urgenda style negligence case in Australia has some prospects of success.

Archival tape -- Tim Baxter:

“Climate lawyers are in some ways literally rolling the dice but if you are rolling the dice a dozen times in a row or dozens of times in a row you are going to roll some sixes and that's kind of where I think where climate law is at the moment.”

KEIRAN:

Again, with all of these cases, there's so many unknowns. you know, you need the right judge, the right plaintiff, the right facts, the right expert evidence and a lot of luck. But, there was a view that whether in this style or in another style, eventually the stars would align and we'd have climate success in our courts.

Archival tape -- Tim Baxter:

“Inevitably while each case might only have a small chance of success, some will win.”

KEIRAN:

I think the most significant roadblock to successful climate litigation is money. And in Australia, lawyering is expensive. Now, a lot of the lawyers and barristers involved in these cases do so pro bono or they work for non-profits and they do that and that's their role. But access to courts is expensive. You know, filing fees, documents, etcetera, that all adds up. But most significantly, is the threat of an adverse costs order.

So if you lose in court, you can be made to pay the other side's legal fees. And if you're fighting the government or a big corporation, you can be pretty certain that they're going to be spending the most money on the best lawyers money can buy. And if you lose that, those bills are going to be sent in your direction. So that is a huge disincentive to climate litigation and to public interest litigation more generally.

RUBY:

Keiran, just say Mark or Katta’s case was to succeed, what would the impact be?

KEIRAN:

The consequences of victory for Katta and or for Mark will be seismic. People said to me when I interviewed them for this article that people were watching this all around the world, companies, experts, lawyers and that could have a really significant ramifications for the way our corporates and governments approach climate change.

Archival tape -- Katta O’Donnell:

“This case is the first of its kind in the world, so we could expect to see other similar cases pop up around around the globe. And it could also mean that governments around the world really have to start to think about how they're going to address these risks.”

KEIRAN:

And, you know, those are two cases and they're both fairly narrowly focused on the financial element. But more broadly, I think there's strong prospects that these different ranges of cases that are going to be brought in the future will have a positive impact on Australia taking climate action. It's not a panacea. None of this will happen overnight. And courts are not going to fix climate change. But courts can play a significant role in the journey to decisive climate action.

And I spoke to a number of climate litigator's for this article I wrote and one of them said to me, you know, the great thing about this is, is we just if we give 50 of them a try. Surely one has to work and we only need a few to work and to have a really seismic impact. And we actually achieve some climate action in the absence of, you know, strong government intervention right now.

RUBY:

Kieran, thank you so much for your time today.

KEIRAN:

Thanks so much.

RUBY:

Keiran Pender is an Australian writer and lawyer. He wrote about climate litigation for The Saturday Paper.

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RUBY:

Also in the news…

Victoria recorded another 19 coronavirus deaths yesterday, as the government announced it was rolling out at-home testing for vulnerable people who cannot easily leave their homes.

The government has also launched a new advertising campaign featuring people who have recovered from coronavirus discussing the health impacts they experienced.

And in NSW health authorities have confirmed a cluster of coronavirus cases at a school in Sydney's north west has grown to nine. The school, in Cherrybrook, has been closed until August 24 while cleaning and contract tracing is underway.

I’m Ruby Jones, this is 7am. See ya tomorrow.

Two Australians have launched court cases in an attempt to radically overhaul the way our government and big corporations are responding to climate change. Today, lawyer Kieran Pender on the story of climate litigation in Australia and what’s at stake.

Guest: Lawyer and writer for The Saturday Paper Kieran Pender.

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Suing for climate action in The Saturday Paper

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7am is a daily show from The Monthly and The Saturday Paper. It’s produced by Ruby Schwartz, Atticus Bastow, and Michelle Macklem.

Elle Marsh is our features and field producer, in a position supported by the Judith Neilson Institute for Journalism and Ideas.

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284: The young Australians suing for climate action