2. Waves of Climate Litigation
Climate litigation has been described through various ‘waves’[1] or ‘generations’.[2]
Early climate litigation in Australia largely involved discrete, project-based challenges under environmental laws, seeking to have climate change impacts taken into account in standard decision-making processes. This first generation of cases was heavily shaped by procedural considerations such as standing, jurisdiction and costs, often leading to a preference for merits review cases brought under planning and environmental legislation before specialist environmental courts and tribunals.
The ‘next generation’ of cases has sought more systemic social and policy change through attempts to hold governments and private actors directly accountable for the climate change implications of their actions.[3] This has involved a broader constellation of participants, causes of action and remedies (including damages). This next generation encompasses rights-based cases (the ‘second wave’) and corporate and other commercial law mechanisms (the ‘third wave’), overlapping with first wave cases that continue to be brought. Procedural considerations are equally but differently pertinent for cases comprising the next generation, which are often outside the realm of environmental and planning laws.
While the first generation of cases were more clearly delineated — for example, by consistent claims and remedies provided under environmental laws — the boundaries of climate litigation are now blurry.
In the next generation of cases, the distinction between public and private interests has also blurred — for example, cases claiming damages from private corporations for climate harm may seek both individual compensation and greater corporate accountability.
Thus, the procedure applicable to climate litigation will vary depending on the circumstances of each case, including whether specific procedural or public interest considerations are enlivened.
- See, eg, Justice Pepper, ‘Turning a Ripple into a Torrent: Riding the Waves of Climate Change Litigation’ (Paper, Clayton Utz seminar Climate Change Litigation, 16 March 2021). ↵
- See, eg, Jacqueline Peel, Hari Osofsky and Anita Foerster, ‘Shaping the “Next Generation” of Climate Change Litigation in Australia’ (2017) 41(793) Melbourne University Law Review 794. ↵
- Andrew Korbel, ‘A New Era of Climate Litigation in Australia’ (2020) 35(1) Australian Environment Review 13. ↵
Cases where climate change is a central issue in the dispute, climate change is raised as a peripheral issue, climate change is one motivation behind the case, or where the case has implications for mitigation or adaptation (Jacqueline Peel and Hari Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy, Cambridge University Press, 2015, p. 8).
(or locus standi, from the Latin ‘a place to stand’) is the right to bring a legal action or challenge some decision.
Jurisdiction refers to the scope of a court’s authority to decide matters. It comes from the Latin ‘juris’ (the law) and ‘dicto’ (to say or declare).
Review of the correctness of an administrative decision, taking into account issues of law, fact, policy and discretion. Merits review is generally undertaken by an administrative tribunal rather than a court.
A sum of money awarded to a plaintiff at the conclusion of a successful lawsuit in satisfaction for the wrong suffered by the plaintiff.
