Climate change 2020 legal wrap up

2020 has been a year that won’t be easily forgotten. Although much has happened since January, the year began with increased public attention on Australia’s climate policy, following the unusually long and intense 2019-2020 bushfire season. 

2020 saw South Korea and Japan commit to a target of net zero carbon emissions by 2050, and the election of Joe Biden, who has pledged to re-enter the United States into the Paris Agreement.

The Australian Government has still not committed to net zero by 2050. The Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 which seeks to legislate this target was introduced into the House of Representatives by independent member Zali Steggall in November, delayed from March due to COVID-19. 

The year has seen continued climate change litigation, including around investor risk and financial disclosure, challenges to coal mining projects, and proceedings against the New South Wales Environmental Protection Authority by bushfire survivors. 

With 2020 drawing to a close, we look at the legal developments in relation to climate change that have happened this year.

1. Climate related financial risks
2. The Climate Change Bill
3. Challenge to government policy by Bushfire Survivors for Climate Action
4. Continued challenges to coal mining and gas projects

Climate related financial risks

2020 has seen the growing importance of business disclosure of climate change related risk and opportunities with a number of key developments.

APRA 

In February, the Australian Prudential Regulation Authority (APRA) outlined its plans to update environmental, social and governance prudential guidance to ensure financial climate risks are managed effectively. APRA also warned APRA entities to be proactive in taking steps to assess and mitigate climate change financial risks and not delay this until the APRA guidance is released. 

O’Donnell v Commonwealth of Australia 

In July, 23 year old Kathleen (Katta) O’Donnell, the holder of Australian government bonds that mature in 2050, commenced proceedings in the Federal Court against the Commonwealth of Australia, alleging that the Commonwealth had failed to disclose climate change risks to investors. It is anticipated that the Commonwealth will make an application to strike out Ms O’Donnell’s claim once it is fully pleaded¹.  

Mark McVeigh v Retail Employees Superannuation Pty Ltd

In November, superannuation fund REST settled litigation brought by member Mark McVeigh for failing to disclose how climate change impacted the fund’s investments. As part of the settlement, REST committed to several initiatives, including: 

• implementing a long-term objective to achieve a net zero carbon footprint by 2050; 
• measuring, monitoring and reporting on climate related progress and actions in line with recommendations of the Task Force on Climate-related Financial Disclosures (TCFD); and 
• encouraging investee companies to disclose in line with TCFD recommendations. 

As the matter settled, there is no judicial ruling on the obligations for superannuation trustees around climate change, but this settlement confirms the increasing acknowledgment of the need to assess climate financial risk.  

The Climate Change Bill 

The Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 was introduced to the House of Representatives by independent member Zali Steggall on 9 November 2020. 

The Bill seeks to establish a national framework for climate action, which includes:

1. An independent Climate Change Commission
2. An economy-wide net-zero emissions target by 2050
3. Economy-wide emissions budgets and national plans for reducing greenhouse gas emissions
4. A national climate risk assessment and plan for adapting to changing climate
5. Transparent monitoring, reporting on progress and plans 

The Bill has been referred to the House Standing Committee on Environment and Energy. While the Bill doesn’t have government support, Ms Steggall has been calling for a conscience vote, and we expect the Bill will continue to place pressure on the Morrison Government’s timeline to achieve net zero emissions.  

Challenge to government policy by Bushfire Survivors for Climate Action 

In April 2020, the Bushfire Survivors for Climate Action (BSCA), commenced proceedings against the NSW Environmental Protection Authority (the EPA) in an effort to compel the EPA to regulate greenhouse gas emissions. The case was brought under the Protection of the Environment Operations Act 1997 (NSW) (PEO Act), which requires the EPA to develop environmental quality objectives, guidelines and policies which ensure “environmental protection”. 

The BSCA argued that while the EPA had endorsed the Paris Agreement and codified an intention to achieve net zero emissions by 2050, it had failed to develop policy which could regulate greenhouse gas emissions in a manner consistent with limiting global temperature rise to 1.5 degrees Celsius.

In October 2020, the Land and Environment Court of New South Wales made orders allowing BSCA’s expert, Professor Penny Sackett, to give evidence as to whether emissions in Australia are currently on track to limit global warming. Professor Sackett will advise on whether Australia is complying with its obligations under the Paris Agreement and examine the causal link between climate change and bushfire risk. 

While the EPA’s obligations under the PEO Act are unique to NSW, this is notably the first case in which an Australian court has allowed such evidence linking an entity’s policies with the tangible effects of climate change.

Continued challenges to coal mining and gas projects

2020 has continued to see challenges to coal mining and gas projects on climate change grounds:

1. Youth Verdict has objected to Waratah Coal’s Galilee Coal Project on climate change grounds, including under Queensland’s Human Rights Act. 
2. A class action was brought by school students, represented by their litigation guardian Sister Brigid Arthur, against the Federal Minister for the Environment, seeking to protect young people from the climate change impacts of an extension to Whitehaven’s Vickery coal mine. 
3. The Mullaley Gas Pipeline Accord has commenced judicial review proceedings in the Land and Environment Court of New South Wales against the Independent Planning Commission’s approval of Santos’ Narrabri Gas Project. 

We’ll continue to keep you updated in 2021. For more information on any of these developments, please contact us.