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Transcript
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]