25 September 2006
Sydney, 25 September 2006: Leading environmental lawyers have warned Australian companies to prepare for a possible wave of 'climate change' claims, with an action filed in the US signalling a major development in global environmental litigation that could happen in Australia.
Peter Briggs, a Litigation partner and environmental law specialist at national law firm Clayton Utz, says a public nuisance claim filed on behalf of the population of California against six major car manufacturers seeking to hold them liable for contributing to global warming is the latest example of "climate litigation", which attempts to force big business to bear financial responsibility for large-scale, long-term damage to the environment and public health.
The complaint, filed by California's Attorney-General, alleges that car manufacturers have breached federal and state law by producing "millions of vehicles that collectively emit massive quantities of carbon dioxide". The State is seeking damages for current and future expenses incurred in responding to the effects of global warming.
Mr Briggs says while there would be significant legal hurdles to overcome to successfully mount such an action in Australia, it was not impossible.
"The US action probably has a political motivation, but this does not mean that the action is ill-conceived or has no relevance here. An action in public nuisance could potentially be mounted in Australia, against a broad range of defendants who are major contributors to the production of greenhouse gases. An action for damages or abatement of a public nuisance can be brought by an Attorney-General, or by individuals or interest groups (such as some environmental action groups) who suffer special damage or have a 'special interest'," says Mr Briggs.
"The plaintiff would need to prove that the defendant's conduct has substantially and unreasonably interfered with a public or common right. A key problem that the Attorney-General in California will face is proving that the defendants actually caused the damage which is alleged. However, it is no defence merely to argue that there are other parties who contributed to the nuisance.
"'A similar action, brought by various US states against major US coal burning power companies last year was dismissed by the Federal Court in Manhattan on a preliminary legal issue. But that decision does not necessarily mean that the current action will not succeed. It will need to be considered on its merits."
Clayton Utz Property, Planning & Environment partner Brendan Bateman says it is also possible that concerned citizens or interested parties could use Australia's state or Commonwealth environment statutes to attempt to prevent major polluters from emitting greenhouse gases. Currently, such laws do not regulate the emission of greenhouse gases such as Co2, although there are moves afoot to introduce mandatory reporting of greenhouse gas emissions.
Mr Bateman says that Clayton Utz has advised in relation to attempts to put companies and their directors on notice of their liability for 'climate change' over the past few years, which to date have not culminated in legal action. "The US case however indicates that the issue is unlikely to go away for companies and directors."
Mr Briggs says it remains to be seen whether Australia follows the US lead in environmental litigation, as is happening in the area of class actions. "Climate change litigation will gain momentum globally, however. It's just a matter of time."
