National and International Perspectives on Climate Change Litigation: Judicial Approaches and Human Rights Considerations
Introduction
Climate change is an increasingly critical global issue, and its legal ramifications have gained significant traction in recent years. As the impacts of climate change become more pronounced, various stakeholders, including environmental activists, governments, corporations, and the public, have turned to the courts to seek redress or to compel action. Court proceedings involving climate change issues have surged in frequency, often drawing substantial media coverage and public interest. This phenomenon is not confined to one nation but is observable in jurisdictions across the world. Courts in Australia and other common law countries such as the United Kingdom, Canada, and New Zealand, as well as civil law jurisdictions like the Netherlands, have faced the complex question of whether the judicial system should play a role in responding to climate change and its myriad effects.
This article provides a comparative analysis of how courts in Australia, the UK, Canada, and New Zealand have approached climate change-related litigation. It also briefly examines the Dutch experience, particularly in the context of the landmark Urgenda case. By analyzing judicial decisions in these jurisdictions, this article explores the extent to which courts have been willing to intervene in climate-related matters and how they have balanced their role against the legislative function of Parliament. Furthermore, the article contrasts the corporate law frameworks of Australia, the UK, and Canada, focusing on directors' duties and the growing relevance of 'greenwashing' under legislation prohibiting misleading and deceptive conduct. The conclusion of the article offers insights into the potential trajectory of climate change litigation in these jurisdictions, particularly in relation to corporate accountability.
Judicial Reluctance to Intervene: A Comparative Analysis
Australia In Australia, courts have generally been cautious about stepping into the realm of climate change policy, viewing it as a domain better suited for legislative and executive action. This reluctance stems from a long-standing principle of judicial restraint, particularly in matters that involve complex scientific and socio-economic considerations. Australian courts have often emphasized that the responsibility for addressing climate change lies primarily with Parliament, which has the expertise and democratic mandate to formulate and implement policy.
One notable case that exemplifies this approach is Gloucester Resources Limited v Minister for Planning (2019). In this case, the New South Wales Land and Environment Court refused approval for a coal mine on the grounds of its potential contribution to climate change. While the decision was significant, the court carefully framed its reasoning within the existing legislative framework, avoiding any direct engagement with broader climate change policy issues. This cautious approach reflects a broader trend in Australian jurisprudence, where courts are hesitant to overstep their constitutional role by engaging in what is seen as policy-making.
United Kingdom The UK courts have similarly demonstrated caution in intervening in climate change-related matters. However, there have been instances where judicial activism has come to the fore, particularly in cases where the government’s actions were perceived as insufficient or inconsistent with existing legal obligations. The UK courts have balanced their role by ensuring that government actions comply with statutory duties, particularly those arising under the Climate Change Act 2008.
A prominent case in this regard is R (Friends of the Earth) v Secretary of State for Transport (2020), where the Court of Appeal ruled that the government's decision to allow the expansion of Heathrow Airport was unlawful because it did not adequately consider the UK's climate change commitments under the Paris Agreement. The decision was a landmark in climate litigation, but the court was careful to ground its ruling in procedural legality rather than making a broad statement on climate policy.
Canada Canadian courts have also been cautious in climate-related cases, often deferring to the legislative branch. However, they have occasionally shown willingness to engage with climate issues when it intersects with constitutional rights or statutory obligations. For instance, in Reference re Greenhouse Gas Pollution Pricing Act (2021), the Supreme Court of Canada upheld the constitutionality of the federal carbon pricing regime, emphasizing the need for a coordinated national approach to climate change. While the decision supported government action on climate change, it also highlighted the judiciary's role in upholding the rule of law rather than dictating policy.
New Zealand In New Zealand, the courts have similarly refrained from taking an activist stance on climate change. The judiciary has generally deferred to Parliament, particularly in cases involving significant policy decisions. However, New Zealand courts have occasionally made decisions that reinforce the government’s obligations under international climate agreements. For example, in Thomson v Minister for Climate Change Issues (2017), the High Court acknowledged the government's duty to consider its international obligations under the Paris Agreement but stopped short of compelling specific policy actions, highlighting the limits of judicial intervention.
The Netherlands The Netherlands stands out as a notable exception in this comparative analysis. In the landmark Urgenda Foundation v. State of the Netherlands (2015) case, the Dutch courts took an unprecedented step by ordering the government to reduce greenhouse gas emissions by at least 25% by 2020, compared to 1990 levels. The decision was based on the court’s interpretation of the European Convention on Human Rights, which it found imposed an obligation on the state to protect its citizens from the dangers of climate change. This case has been widely cited as a groundbreaking example of judicial intervention in climate policy, demonstrating a more proactive approach compared to the more cautious stance observed in common law jurisdictions.
Corporate Law and Climate Change: Directors’ Duties and Greenwashing
Directors' Duties In the context of corporate law, the duties of directors have come under increasing scrutiny in relation to climate change. In Australia, the UK, and Canada, company directors are subject to statutory and common law duties to act in the best interests of the company. These duties include considering the long-term sustainability of the company’s operations, which in turn has implications for how directors address climate-related risks.
In Australia, the Corporations Act 2001 imposes duties on directors to act with care and diligence, and in good faith in the best interests of the company. Recent legal commentary suggests that failure to adequately consider climate risks could constitute a breach of these duties. Similar obligations exist under the UK’s Companies Act 2006 and Canada’s Canada Business Corporations Act, where directors are required to consider the long-term consequences of their decisions, including environmental impacts.
However, despite the legal framework, there has been limited litigation directly addressing the intersection of directors' duties and climate change. This may change in the future as awareness of climate risks grows and shareholders increasingly demand accountability from corporate boards.
Greenwashing
Another emerging area of climate change litigation involves 'greenwashing,' where companies make misleading or deceptive claims about the environmental benefits of their products or practices. In Australia, the Australian Competition and Consumer Commission (ACCC) has indicated that it will prioritize enforcement actions against companies engaging in greenwashing under the Australian Consumer Law, which prohibits misleading and deceptive conduct. Similar regulatory frameworks exist in the UK under the Consumer Protection from Unfair Trading Regulations 2008 and in Canada under the Competition Act.
Recent cases in these jurisdictions suggest that courts are becoming more willing to hold companies accountable for greenwashing, particularly as consumer demand for environmentally responsible products increases. As public awareness of climate change grows, it is likely that litigation in this area will also increase, with significant implications for corporate behavior.
Conclusion
The role of courts in addressing climate change is a complex and evolving issue, shaped by the legal frameworks and judicial philosophies of different jurisdictions. In Australia, the UK, Canada, and New Zealand, courts have generally been reluctant to intervene in climate policy, viewing it as the domain of the legislative and executive branches. However, cases such as Urgenda in the Netherlands demonstrate that there is potential for courts to play a more proactive role in certain contexts.
In the realm of corporate law, the duties of directors and the issue of greenwashing present significant areas for future climate litigation. As the legal and social landscapes continue to evolve, courts in these jurisdictions may increasingly be called upon to adjudicate disputes at the intersection of law, corporate governance, and climate change. The trajectory of these developments will have profound implications for the global effort to address climate change and for the legal accountability of corporations in this context.