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The influence of climate litigation on government

Amid the ongoing climate crisis, the onus has been placed on governments to make meaningful changes on behalf of their countries and states — as climate litigation continues to trend. Here’s what lawyers have to do with it.

A s climate law, litigation and class actions become more prevalent within the legal profession, it will also, moving forward, have a greater impact on government decision making than ever before.


After passing through the House of Representatives in August, the Labor government’s Climate Change Bill passed the Senate with 37 votes to 30 in September 2022, making it Australia’s first climate change legislation in over a decade to pass the Federal Parliament.

This came after the United Nations General Assembly (UNGA) held a landmark vote to recognise the right to a healthy environment as an essential human right in August this year, which had 161 votes in favour, no votes against, and eight abstentions.


The broad reach of climate law, generally, covers international commitments under the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, as well as climate change-specific legislation at the federal and state levels of government, plus renewable energy legislation and traditional environmental legislation.

And this type of law will play out in a number of different ways, impacting a number of different legal sectors, specialist environmental and planning partner at King & Wood Mallesons Mark Beaufoy explained.

“Climate law, in its broad scope, will play a significant role in Australia’s journey to meet its net zero commitments and slow the impacts of climate change. Meeting these targets has ramifications for every sector of the Australian economy. This means that in addition to the work of environmental lawyers, lawyers in a range of disciplines must have a good understanding of the trends in policy and law relating to climate,” he said.

“Following the change of government, one of the first positive steps made by Labor was to confirm Australia’s commitments under the Paris Agreement and to implement those commitments in the legislation. By doing so, the federal government showed leadership on climate change, which to date had primarily been provided by the states.”

The new bill commits Australia to reducing net greenhouse gas emissions to 43 per cent below 2005 levels by 2030 and reducing them to zero by 2050. It also requires an annual climate change statement to be tabled in Parliament that sets out the progress towards achieving the reduction targets, with other laws and policies likely to be brought out moving forward.

And this legislation is only the beginning in terms of Australia reaching these goals. “Clearly, the impacts of climate change are starting to be felt across the globe and in Australia, especially with the increase in extreme weather events,” Mr Beaufoy quipped.

“The recent IPCC report and ongoing scientific understanding of climate change are predicting that the impacts of climate change may well be greater than first predicted and will require significant emission reductions, mitigation efforts and resilience over the next couple of decades. This will require significant changes to laws, decision making, and investments on the path to net zero.”

This sentiment was echoed by the Governance Institute of Australia, which welcomed the introduction of the bill.

“Climate change — and the laws, regulations and expectations around this issue — are set to increase in intensity as the urgent, and very real, nature of this risk becomes more apparent,” a spokesperson said.

“Climate change must play a significant role in regulation and governance, and for organisations, engaging the board is the first step in setting up effective climate governance.”

This legislation comes with a range of potential impacts for different legal sectors, including within the energy, environment and corporate advisory spaces.

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‘Just the beginning of our legal journey to tangible climate action’

Whilst the new climate change legislation is a positive step forward for the climate crisis, there are a number of other measures that need to be taken, said these lawyers.


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It will also have “far-reaching consequences”, according to Herbert Smith Freehills environment, planning and communities partner Kathryn Pacey, who said that there have been — and will continue to be — significant impacts on the profession.

“We expect that the legislation will drive higher investment and acceleration of decarbonisation projects, more robust carbon accounting, increased focus on carbon reduction claims and governments and industries having decisions scrutinised in terms of their contribution to the emissions reduction targets,” she said.

“For lawyers, this means that climate and emissions reductions will be important considerations in the work we do — for new projects, disclosures, regulatory changes, financing and agreements. Climate change legislation also has the potential to impact on projects, financing, energy, land development, access to and consumption of resources, government policy, real estate, construction and disputes.”

These impacts aren’t just limited to environmental lawyers either. Climate change law is relevant to lawyers across a range of specialist areas, emphasised Mr Beaufoy.

“Climate law, in its broad scope, will play a significant role in Australia’s journey to meet its net zero commitments and slow the impacts of climate change.”
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“[Climate law] encompasses climate change litigation, which is being brought under a range of laws, including corporate law, competition law, administrative law and at common law,” he said.

“This broad framework of climate-related laws continues to influence government and corporate decision making in relation to investments, project approvals and the reduction of greenhouse gas emissions and impacts.”

Several of Australia’s key regulators have already made climate and sustainability-related issues a top priority. The Australian Competition and Consumer Commission (ACCC) announced that “consumer and fair trading issues in relation to environmental claims and sustainability” is an enforcement and compliance priority for 2022–2023, and the Australian Securities and Investments Commission (ASIC) clearly stated its support for the establishment of the International Sustainability Standard Board to develop high-quality baseline climate and sustainability disclosure standards.

In the face of these changes, lawyers have been urged to use their legal skills to respond to the climate crisis — by keeping updated with any and all reforms, having real conversations with their clients and committing to supporting the community. This is relevant not only to environment and planning lawyers but to other practice areas, too.

“The environmental space is heavily regulated and rapidly evolving, with technology often running well ahead of the regulatory landscape. A big part of the job of an environmental lawyer is keeping up with the regulatory and scientific change that is happening in our space,” Ms Pacey submitted.

“Over my career, I have seen our role increasingly move from advising what you can do, to what you should do — and that can be tricky where the ‘should’ is informed by a combination of science, social trends, government policy, equity, and investment patterns.”

Different types of lawyers also play varying roles in terms of responding to the changing climate law landscape.

“There is a significant role for energy and resources, projects, corporate, and competition lawyers, as well as litigators. Environmental lawyers will play a significant role in providing compliance advice relating to the new framework of climate-related legislation, EPA regulatory decision making, project assessment and approvals for new renewable energy projects,” Mr Beaufoy added.

“Environmental lawyers will also play an important role through advising on ongoing planning and environmental decision making for climate mitigation associated with changing weather events, environmental conditions, and natural disasters. Climate change means significant changes for project assessment and approval legislation and other related environmental issues such as biodiversity protection, waste, recycling, and circular economy.”

There are also a number of other key government reform efforts happening right now. An independent panel has been established to review the integrity of Australian Carbon Credit Units under the Emissions Reduction Fund, with the panel to provide its advice to the government by the end of this year, and the Federal Environment Minister has recently announced that a biodiversity certificates scheme will be introduced, to allow landholders to restore or manage local habitat and sell certificates.

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“Climate change must play a significant role in regulation and governance, and for organisations, engaging the board is the first step in setting up effective climate governance.”
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‘Use legal skills to solve this wicked problem’: The role of lawyers in climate change debates, litigation and social change


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“There is significant reform that is needed.”

“[The] government is considering reforms to the Federal Environment Protection and Biodiversity Conservation Act 1999. This follows the statutory review of the act undertaken by Professor Graeme Samuel in 2021 that found that the act is not fit for purpose, and the release of the State of the Environment Report that found that our environment, particularly in terms of biodiversity, is in a state of decline,” Ms Pacey explained.

“We expect to have an indication by the end of the year as to what those changes will be, but we expect to see changes focused on increased biodiversity protection and restoration, cultural heritage protection and updated compliance powers.”

However, the bill doesn’t currently detail how the net zero targets will be reached, and the Labor government has refused to commit to banning any new coal and gas projects or enshrining climate impacts into the assessment and approval of new projects under national environment law. This means the legislation still has some catching up to do, said Environmental Defenders Office head of policy and law reform Rachel Walmsley.

“The legislation passed at the Cth level was high level and included targets that fall far short of what the science is saying we need,” she said.

“There is significant reform that is needed — the Cth bills were just a first step. Lawyers have a crucial role in helping develop the detail of the myriad reforms needed; and also, to ensure accountability of current decision making through the courts.”

The government also has a significant role in the challenges of the climate crisis — with climate legislation set to continue to impact decision making moving forward.

“Climate change is directly relevant to a wide range of decisions, but legislation is still catching up in this respect and does not yet reflect this,” Ms Walmsley added.

“To reduce emissions and build resilience, climate change considerations need to be at the heart of planning, environmental, [and] resource legislation as well as health, national security, and economic policy. It needs to be at the core of decision making across relevant government agencies and departments, and laws should be amended to require this.”

And according to the Governance Institute of Australia, this change can’t come soon enough.

“The federal government has a significant role to play in responding to the challenges of climate change, and the introduction of this legislation was a significant step forward. There should be no doubt that climate change is one of the most urgent issues facing all organisations,” a spokesperson said.

“However, many still do not see climate change as an immediate threat. Climate and climate risk management need to be front of mind for every organisation. And this mindset shift needs to happen immediately.”

“Climate change is directly relevant to a wide range of decisions, but legislation is still catching up in this respect and does not yet reflect this.”
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