Download Litigation - Australia`s Climate Action Summit

Legal options for climate
campaigners
Michael Power
Lawyer – Law Reform
Environment Defenders Office (Victoria)
Climate Action Summit
9-10 April 2011
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
Today
• Litigation
- Pros and Cons
- Options
- How we can help
• Law reform
- Pros and Cons
- Options
- How we can help
What do you already know
about climate law?
Litigation
Litigation - options
1.
2.
3.
4.
5.
Judicial review
Merits review
Torts
Enforcement
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 3100
Regional: 1300 336 842
www.edo.org.au/edovic/
[email protected]