Australians relish being at the top of international league tables in sport. But few would know we’re a global champion when it comes to using the courts to hold governments and companies to account on climate change.
A new report from the United Nations Environment Programme found a staggering 127 climate lawsuits in Australia. We’re second only to the United States on the number of cases and slightly ahead on a per capita basis. The count started in the 1990s and runs through to December 2022.
The research comes as the Northern Hemisphere suffers through unprecedented heatwaves and Antarctica experiences record sea ice retreat. And in Australia, we are bracing for an El Niño-charged summer.
The report says “climate litigation represents a frontier solution to change the dynamics of this fight” against climate change. And Australia, with our many cases and innovative tactics, is on the frontlines. But the report does not capture wins or losses. So while the case load is certainly growing and the field of law is maturing, it’s not yet clear what difference it will make in the long run.
What is climate litigation?
Climate litigation describes a broad range of legal interventions brought to address climate change. The goal is generally to reduce emissions of climate-harming greenhouse gases (mitigation) or improve resilience in the face of climate impacts (adaptation).
These cases have become more common as the climate crisis has worsened and the gap grows between needed action and what governments and companies are actually delivering.
As the report states:
Climate change litigation provides civil society, individuals and others with one possible avenue to address inadequate responses by governments and the private sector to the climate crisis.
It’s an avenue that’s widely available. It can be accessed by many different groups including some of the most vulnerable. And it can be initiated using a wide range of laws, such as those protecting human rights, preventing misleading greenwashing, requiring corporate disclosures of climate risk or regulating the obligations of countries to reduce greenhouse gas emissions.
This could make climate litigation a powerful tool for those disproportionately affected to demand and secure climate justice.
Read more: Capitalising on climate anxiety: what you need to know about 'climate-washing'
Australia as a climate litigation hotspot
The US tops the climate litigation charts with 1,522 lawsuits filed. Australia comes second with 127.
But we’re in front on a per capita basis. The US figure works out to about 4.6 lawsuits per million people, compared to 4.8 lawsuits per million in Australia.
Australia’s status has been driven by several factors. These include our carbon-intensive economy and significant fossil fuel exports. Until recently, the dearth of climate policy nationally also encouraged some to resort to the courts for solutions. Australia also has a very active and engaged civil society which has tried a range of innovative legal arguments.
A key example in the report is the case brought by eight Torres Strait Islanders and six of their children to the UN Human Rights Committee.
In 2022, the committee delivered a landmark decision, finding the Australian government was violating its human rights obligations to Torres Strait Islanders through climate inaction. The decision delivered a number of legal world-firsts including the first time a country had been held responsible for its greenhouse gas emissions under international human rights law.
Australia has also been a pioneer in climate litigation against private sector entities, starting a wave of cases now building to a tsunami globally. Leading this trend are anti-greenwashing complaints.
The report singles out a case brought by the Australasian Centre for Corporate Responsibility against oil and gas company Santos. It alleges the company’s pledge of net zero emissions by 2040 is misleading and deceptive in violation of Australia’s consumer protection laws. This case is before the courts.
More where that came from
The report acknowledges it applies a “narrow approach” to defining climate litigation by excluding cases not sent to courts or quasi-judicial bodies, or which don’t feature climate change as a central issue.
As we’ve found in our Australian and Pacific Climate Change Litigation database, maintained by Melbourne Climate Futures, a broader lens yields even more climate cases. Between 2000-22, our database records 371 examples of Australian climate litigation.
In previous research we found most Australian cases do not yield court wins. For example, there have been many cases against coal mines but only a handful have actually stopped the mine going ahead.
How do lawsuits help fight the climate crisis?
Litigation is an important tool for advancing climate action and accountability. A report last year by the Intergovernmental Panel on Climate Change considered climate litigation for the first time, finding some cases influenced the outcome and ambition of climate governance.
The latest report spells out ways individuals, communities and groups are using litigation to drive action. This includes efforts to:
enforce existing climate laws
ensure climate issues are widely integrated into planning and economic decision-making
force governments and companies to raise the ambition of their emissions reduction commitments
establish a link between climate change and human rights violations, and
seek compensation for climate harms.
Many cases put forward innovative legal arguments but are ultimately unsuccessful in getting the remedy they seek. One example is the 2021 Australian litigation by teenage climate activist Anjali Sharma and other young people against the federal environment minister, then Sussan Ley. Even where lawsuits do deliver a legal win, the report highlights potential “implementation challenges” when it comes to putting those judgements into action.
The report predicts where climate litigation might head next. This includes the potential for more cases addressing risks of climate displacement and migration, and consequences of climate-fuelled disasters such as the Black Saturday bushfires.
It also forecasts more cases brought by vulnerable groups, a trend we are already seeing in Australia. In the last year, several cases were brought by First Nations people and Indigenous youth. These challenged coal mines and gas projects impacting their traditional lands, or fought for greater government action to prevent islands in the Torres Strait being overwhelmed by sea level rise.
As demands for climate justice increase, further growth and worldwide spread of climate litigation now seems a given.
Read more: Could the law of the sea be used to protect small island states from climate change?