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