7. Remedies

Despite the inherent limitations of litigation, the courts have been a crucial site for the fight against the climate crisis.

In addition to the primary purpose of providing redress to a victim, remedies perform a secondary function from the perspective of society as a whole; they ‘affirm, reinforce, and reify the fundamental values of society’.^[1] In the context of climate litigation, this secondary goal is weighty.

7.1 Remedial Modesty

The remedies granted by the courts in climate litigation to date have been characterised as ‘focused and modest’.^[2]

The courts are of course limited by the cases that come before them and the laws which they must apply. For example, the remedies available in the first wave of cases seeking review of administrative decisions were limited to ordering that the decision be remade.

The issue of justiciability — whether a case is suitable for judicial adjudication — also limits the outcomes available through the courts, serving as another screening or filtering device. Issues of justiciability have been determinative in denying climate-related claims in jurisdictions such as New Zealand and the United States, where the principle of non-justiciability has mainly been developed.

In Australia, the judiciary has exhibited reluctance in climate litigation to date to adjudicate issues that are considered to fall under the legislative or executive branches’ mandate due to the separation of powers. In Sharma, for example, Chief Justice Allsop, on appeal, held inter alia that the duty involved multidisciplinary considerations underpinning climate change policy that were not appropriate for judicial resolution.^[3]

A study of global climate litigation in 2023 found that around 55% of the 549 cases in which either an interim or final decision had been made had outcomes that are favourable to climate action.^[4] But it was noted that this figure only tells ‘part of the story’.^[5] It is important to take a long view beyond the immediate success or failure of individual cases and consider both the direct legal and regulatory effects and the indirect effects that manifest in enhanced public profile of the issues at hand or shifts in behaviour and attitudes.

7.2 Evolution of Cases

The evolution of cases can lead to incremental changes to the procedural and substantive rights recognised before the courts.

For example, early environmental cases where standing was an issue influenced more liberal standing provisions in certain environmental legislation (discussed above). In Sharma, the Honourable Justice Beach found insufficient closeness between the Minister and the children but left open the possibility of a future claim if any of the children suffered damage.^[6]

Moreover, each case offers inspiration for new claims, as exhibited by the gradual expansion of the types of claims comprising climate litigation. As climate litigation is increasingly transnational, the sharing of ideas and intellectual and financial resources is also increasingly occurring across borders.^[7]

Influencing Policy Change

Strategic cases also obtain interactional remedies, impacting policy and regulatory responses from other institutions and producing longer term systemic remedies. The judiciary can have ‘a catalytic effect’ on action taken by the legislature and executive to mitigate or adapt to climate change.^[8]

Osofsky argues that successful cases and those with little hope of succeeding have together helped to change the regulatory landscape at multiple levels of government by putting legal and moral pressure on a wide range of individuals and entities to act.^[9]

A successful outcome for the plaintiffs in Bushfire Survivors for Climate Action Inc v Environment Protection Authority^[10] resulted in the creation of the New South Wales Environmental Protection Authority’s Climate Change Policy and Plan for 2023–2026.

Despite an unsuccessful outcome in the ‘Living Wonders’ appeal,^[11] the Court recognised the inadequacies of the regulatory regime, with the majority judgment (Mortimer CJ and Colvin J) observing:^[12]

Notwithstanding [the] conclusions on the grounds of appeal, the arguments on this appeal do underscore the ill-suitedness of the present legislative scheme of the EPBC Act to the assessment of environmental threats such as climate change and global warming and their impacts on [matters of national environmental significance] in Australia.

Following Sharma, Senator David Pocock introduced the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 into the Australian Senate, which sought to legislate a similar duty to that which was rejected by the courts in Sharma, drafted in partnership with the lead plaintiff, Anjali Sharma.

Influencing Behavioural Change

Litigation can also influence the behaviour of public and private entities and the attitudes of society at large.

Climate litigation against private actors has amplified corporate climate risk, impacted investors and influenced decision-making.

Behavioural change has been a factor in settlements in climate litigation, including in O’Donnell (discussed above). In McVeigh v Retail Employees Superannuation Trust,^[13] a case alleging failure of a superannuation fund to provide information related to climate change business risks and any plans to address those risks, the parties reached settlement whereby the Australian pension fund agreed to incorporate climate change financial risks in its investments and implement a net-zero by 2050 carbon footprint goal. In a recent application for preliminary discovery from ANZ relating to concerns about the bank’s inadequate management of climate change and biodiversity loss risks, the parties agreed to the proceedings being discontinued after ANZ publicly reported that ‘climate risk’ be elevated as a ‘key material risk’.^[14]

The impacts of climate litigation on perceptions and behaviour are compounded by the broader advocacy strategies of which litigation forms a part. Public interest litigation has been described as an ‘imperfect but indispensable strategy of social change’, the effectiveness of which can be increased by better understanding its capacities and constraints.^[15] Litigation may complement other advocacy measures and broader discourse and cultural shifts, with the effect of ‘shaping narratives’.^[16]

7.3 SLAPP Suits

Another important aspect to consider is the way in which litigation can be used to inhibit the achievement of climate outcomes. A review of global climate litigation filed in 2023 found that nearly 50 of the more than 230 recorded cases were not aligned with climate goals,^[17] the overwhelming majority of which were filed in the United States.

Non-aligned climate litigation includes strategic litigation against public participation (‘SLAPP’).^[18] SLAPPs have been described as ‘lawsuits or threats of legal action which use abusive litigation tactics with the aim or effect of suppressing public participation and critical reporting on public interest matters’.^[19] SLAPPs raise questions about the way in which the legal system is used to stifle public participation, and the requirements and procedures which make this possible.

The aim of a SLAPP is not necessarily to win but to tie up the time and resources of those against whom they are brought — usually non-government organisations and activists with opposing views — and discourage community dissent. SLAPPs can have wide-reaching and chilling effects, deterring public participation and threatening the viability of cases brought in the public interest.

Recently, cases have been brought against Greenpeace entities by oil and gas companies Shell in the United Kingdom^[20] and Energy Transfer in the United States (North Dakota),^[21] in relation to protests about those companies’ climate impacts.

In Australia, the well-known environmental SLAPPs brought in 2004 by Gunns Ltd, a large Australian export woodchipper, against 17 individual activists and three environmental groups seeking to protect Tasmania’s forests — known as ‘Gunns 20’ — spawned a campaign for anti-SLAPP legislation to protect the right of public participation and protest.^[22] In 2008, the Australian Capital Territory passed the Protection of Public Participation Act 2008 (ACT) and is still the only Australian jurisdiction with anti-SLAPP legislation (though it has been criticised for being ‘watered-down’ and not going far enough^[23]). There have been recent calls for the introduction of federal anti-SLAPP legislation, growing out of concern that strategic litigation may limit community voices on issues of public interest and freedom of expression.^[24]

Anti-SLAPP legislation has gained momentum in other jurisdictions, including in the United States where 34 states have anti-SLAPP laws^[25] and in the European Union, which recently adopted new anti-SLAPP rules to introduce several procedural safeguards and measures to apply to manifestly unfounded claims or abusive court proceedings in civil matters with cross-border implications.^[26] Following the adoption of this directive in April 2024, Greenpeace International in July 2024 sent a Notice of Liability to Energy Transfer in relation to the abovementioned case, stating its intention to commence a claim under the European Union’s anti-SLAPP directive to recover all damage and costs it has suffered as a result of the case against it unless Energy Transfer withdraws its case and accepts responsibility for the harm Greenpeace International has suffered.^[27]

7.4 Alternative Dispute Resolution

It is also important to consider mechanisms other than litigation and their role in resolving climate-related disputes. Alternative dispute resolution (‘ADR’) is an umbrella term for a variety of private and court-annexed dispute resolution options, including mediation, conciliation, expert referral and arbitration.^[28] ADR mechanisms have been incorporated into the formal justice system and interact with and are enmeshed to some extent with litigation.^[29]

Broadly, the benefits of ADR are that ADR procedures may be faster, cheaper, less adversarial and more flexible than litigation. The framework of ADR enables more targeted and creative approaches, which can be tailored to the individual circumstances of each dispute. However, ADR may not be suitable where a dispute arises from incompatible values, such that meaningful compromise is not possible.

Litigation is part of the public record, develops the common law and creates precedent, which ADR does not. Litigation also deals with defined rules and court processes, and court appellate processes provide a clear pathway for resisting decisions and correcting potential errors. These elements can be useful in certain circumstances, including in climate litigation and in other public interest cases where a clear public outcome may be of particular importance — for example, cases seeking recognition of a new duty of care such as Sharma or cases seeking review of administrative decisions.