legal options for climate campaigners
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Legal options for climate campaigners
Michael PowerLawyer – Law Reform
Environment Defenders Office (Victoria)
Climate Action Summit9-10 April 2011
• Independent, not-for-profit, community legal centre practicing public interest environmental law
• Three types of work:
- Legal advice and litigation
- Policy and law reform
- Community education and outreach
The EDO
• Litigation - Pros and Cons
- Options
- How we can help
• Law reform - Pros and Cons
- Options
- How we can help
Today
What do you already know about climate law?
Litigation
Litigation - options
1. Judicial review
2. Merits review
3. Torts
4. Enforcement
5. Greenwashing
Why litigate?
• Legally binding, independent
• Time and money for developer
• Foster public debate
Why not litigate?
• Can be overturned or circumvented
• Time and money for you
• Project-by-project basis
Judicial Review
• Did the decision-maker follow the legal requirements?
• Focus on technicalities, not merits.
• Decision-maker can have another go.
• Can set precedents (eg PP)
Example: Anvil Hill Litigation
Example: Wildlife Whitsunday
Judicial Review
• Costs are the biggest problem for any case that goes to court.
• Loser pays the winner’s costs
• Public interest cost orders and protective costs orders are weak protection
Judicial Review
• When is it best?– High importance developments
• What to look out for– Must be a decision– Did they consider the climate change impact?– Were they required to?
Opportunity: Climate Change Act 2010 (Vic)
Merits Review
• The initial decision is re-made by a tribunal as if it were the decision-maker
• Usually in tribunals – no risk of costs
• Not always available
• Low (no) precedential value
Gippsland Shire Council
Merits Review
• What to look out for – Decisions that are merits reviewable (planning)– Failure to consider impact of climate change
• When is it best– Whenever you can get it!
Tort
• Very old common law actions for damage to private interests
• Key ones for climate law are nuisance, negligence, trespass
• Action must cause damage; damage must not be too remote
Example: Comer v Murphy Oil Co
Opportunity: trespass
Tort
• What to look out for– Damage caused by negligence/nuisance– Private property
• When is it effective– Private property– Even then, rarely - remoteness & causation
Enforcement
• Breach of an environmental statute
• Injunction
• Private prosecutions
Example: Gray v Macquarie Generation
Enforcement
• What to look out for– Conduct that might be in breach of an Act– The right to take proceedings
• When is it effective– Difficult to succeed– Show that carbon is pollution like any other
Opportunity: Climate Change Act 2010 (Vic)
Greenwashing
• It is illegal to engage in misleading and deceptive conduct in trade or commerce
• ACCC can bring proceedings
• Anyone can claim injunction
• Compensation for loss or damage
How we can help
• Information
• Advice
• Representation
Law Reform
Why law reform?
• Systemic, not piecemeal, focus
• Legally stronger
• Laws can deliver lasting change
• Earlier stage of decision-making process
What options?
1. Submissions
2. Objections
Submissions
• Free and easy
• Important detail
• Taken seriously
• Often largely defensive
Opportunity: Carbon Farming Initiative
Objections
• What to look out for– Opportunities: • EDO law reform calendar• EDO eBulletin
• When is it effective– When process taken seriously (eg in a hung
Parliament)– When detail is important
Objections
• Statutory process
• Potential campaign tool
• Can give objector extra legal rights, and open doors for further litigation
Example: HRL power station
Opportunity:New coal licences
Objections
• What to look out for– Statutory rights (new licence, planning permit)– Time limits
• When is it effective– Lots of concern (HRL)– Set up future legal challenge
How we can help
• Information
• Advice
• Representation
Questions?
Contact the Environment Defenders Office
Metro: (03) 8341 3100Regional: 1300 336 842www.edo.org.au/edovic/
edovic@edo.org.au
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