Climate Law and Litigation presentation to BZE 20190401 by Elisa de Wit, Partner at Norton Rose Fulbright

1. Climate Law and Litigation
Elisa de Wit
Partner, Head of Climate Change and Sustainability
Norton Rose Fulbright Australia
1 April 2019

2. Drivers for action
Australia’s existing legal and regulatory framework
Litigation trends
Overview

3. Why?
3
Black Saturday bushfires, Victoria 2009 Storm surge, Sydney 2015
Brisbane floods, 2011 South Australian storms and state blackout, 2016

4. Why?
4
Gippsland fires, Victoria 2019 South Australia heat wave, 2019
Townsville floods, Queensland 2019
Twin Cyclones, 2019

5. UNEP, 2017

6. Drivers for action
6
Paris
Agreement
Task Force
on Climate
Related
Financial
Disclosure
(TCFD)
Reserve
Bank
speech
Shareholder
action
Litigation
risk
Hutley
opinion
(2016,
2019)

7. Coordinated engagement by
financial regulators on climate
New reporting frameworks
Investor and community pressure
Advances in scientific knowledge
Increased litigation risks
Hutley Opinion (2019)

8. Australian regulation and policy: still moving…
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Targets
National Greenhouse and Energy Reporting System
Emissions Reduction Fund
Safeguard Mechanism
Renewable Energy Target
Finkel Review
National Energy Guarantee

9. 9

10. 10 UN Environment, The Status of Climate Change Litigation: A Global Review

11. Legal action against energy companies for
emissions contributing to climate change

12. Lliuya v. RWE AG

13. Pacific Coast Federation of Fishermen’s
Associations, Inc. v Chevron Corp & Ors

14. Legal action against businesses for failure to
disclose climate-related financial risks

15. The People of the State of New York v Exxon
Mobil Corporation

16. Mark McVeigh v Retail Employees
Superannuation Trust
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17. Legal action against governments

18. Urgenda Foundation v Kingdom of the
Netherlands
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19. Juliana v. United States
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20. Legal action aimed to prevent developments
causing emissions contributing to climate change

21. Gloucester Resources Limited v Minister for
Planning [2019]

22. Climate change findings
• Both direct and indirect GHG emissions should be
considered
• All GHG emissions contribute to climate change
• The project’s emissions will contribute to climate change
• No specific proposal to offset the project’s emissions
• Possibility of abatement unrelated to the project was not
relevant
• Assumptions of market substitution and carbon leakage
unproven
• Producing coking coal not a justification for GHG emissions

23. (cf) Australian Coal Alliance Incorporated v
Wyong Coal Pty Ltd [2019]

25. Disclaimer
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entity on the points of law discussed. You must take specific legal advice on any particular matter which concerns you. If you require any advice or further information, please speak to your usual
contact at Norton Rose Fulbright.
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