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Legal Options for Climate Campaigners: A Guide by Michael Power Lawyer

Attend the Law Reform Environment Defenders Office's session at the Climate Action Summit on April 9-10, 2011, and learn about litigation and law reform in climate law. Get insights into judicial review, merits review, tort actions, enforcement, and tackling greenwashing. Discover how the EDO supports with legal advice, policy reform, and education to make a positive impact in climate campaigns. Engage with the opportunities provided by climate change legislation and understand the significance of law reform for lasting systemic change. Explore avenues like submissions and objections for effective advocacy, and how to leverage the law to address issues like misleading conduct and carbon pollution. Contact the EDO for information, advice, and representation on environmental legal matters.

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Legal Options for Climate Campaigners: A Guide by Michael Power Lawyer

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  1. Legal options for climate campaigners Michael Power Lawyer – Law Reform Environment Defenders Office (Victoria) Climate Action Summit 9-10 April 2011

  2. The EDO • 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

  3. Today • Litigation - Pros and Cons - Options - How we can help • Law reform - Pros and Cons - Options - How we can help

  4. What do you already know about climate law?

  5. Litigation

  6. Litigation - options • Judicial review • Merits review • Torts • Enforcement • Greenwashing

  7. Why litigate? • Legally binding, independent • Time and money for developer • Foster public debate

  8. Why not litigate? • Can be overturned or circumvented • Time and money for you • Project-by-project basis

  9. 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)

  10. Example: Anvil Hill Litigation

  11. Example: Wildlife Whitsunday

  12. 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

  13. 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?

  14. Opportunity: Climate Change Act 2010 (Vic)

  15. 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

  16. Gippsland Shire Council

  17. 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!

  18. 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

  19. Example: Comer v Murphy Oil Co

  20. Opportunity: trespass

  21. Tort • What to look out for • Damage caused by negligence/nuisance • Private property • When is it effective • Private property • Even then, rarely - remoteness & causation

  22. Enforcement • Breach of an environmental statute • Injunction • Private prosecutions

  23. Example: Gray v Macquarie Generation

  24. 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

  25. Opportunity: Climate Change Act 2010 (Vic)

  26. 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

  27. How we can help • Information • Advice • Representation

  28. Law Reform

  29. Why law reform? • Systemic, not piecemeal, focus • Legally stronger • Laws can deliver lasting change • Earlier stage of decision-making process

  30. What options? • Submissions • Objections

  31. Submissions • Free and easy • Important detail • Taken seriously • Often largely defensive

  32. Opportunity: Carbon Farming Initiative

  33. 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

  34. Objections • Statutory process • Potential campaign tool • Can give objector extra legal rights, and open doors for further litigation

  35. Example: HRL power station

  36. Opportunity:New coal licences

  37. 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

  38. How we can help • Information • Advice • Representation

  39. Questions?

  40. Contact the Environment Defenders OfficeMetro: (03) 8341 3100Regional: 1300 336 842www.edo.org.au/edovic/edovic@edo.org.au

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