3. Don’t Pass ‘Go’

There are some up-front barriers to PIL that prevent plaintiffs passing ‘Go’. Two are justiciability and standing.

Justiciability involves the claim having the quality of being capable of being considered legally and determined by the application of legal principles and methods by the courts.^[1] If a claim is not justiciable, the court has no jurisdiction to hear and determine it and it risks being dismissed at the outset. That has been the fate of some climate change litigation in the United States^[2] and Canada^[3] as well as in Australia in the Sharma litigation on appeal.^[4] There is a need, therefore, to ensure that the PIL claim is demonstrably framed so as to be justiciable.

Standing refers to the right of the plaintiff to bring the claim the subject of the PIL. Standing depends on the identity of the person, the type and subject matter of the proceedings, and the relationship the person has to those proceedings.^[5] In Australia, the common law test for standing to bring judicial review or civil enforcement proceedings is that a person can sue, without joining the Attorney-General, in two cases: first, where the interference with the public right is such that some private right of the person is at the same time interfered with; and second, where no private right is interfered with, but the person has a special interest in the subject matter of the action.^[6] The plaintiff’s special interest need not be proprietary or pecuniary, but it must be more than intellectual or emotional.^[7]

The standing test can restrict the range of individuals that can bring environmental PIL. The individual or group must be able to establish their special interest in the subject matter of the litigation. This might be by the plaintiff’s active use of the land that is the subject of the litigation,^[8] the plaintiff’s spiritual or cultural relationship to the subject land,^[9] adverse impact on the amenity of the plaintiff’s land,^[10] protection of the plaintiff’s statutory participation rights,^[11] government decisions or conduct relating particularly to the objects and activities of the plaintiff organisation^[12] or the plaintiff having a demonstrated history of taking ‘sufficient, concrete or active steps to effectuate the particular concern’.^[13]

In some jurisdictions, the hurdle of standing has been overcome legislatively. In NSW, for example, most environmental legislation contains an open standing provision, entitling any person (natural or legal) to bring proceedings for an order to remedy or restrain a breach of the legislation, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.^[14] These open standing provisions have facilitated environmental PIL.

At the federal level in Australia, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) gives standing to seek injunctions relating to conduct or proposed conduct in contravention of the Act to individuals and organisations whose interests have been, are or would be affected by the conduct or proposed conduct, or who have engaged in the two years beforehand in activities for the protection or conservation of, or research into, the environment, or in the case of an organisation, whose objects or purposes include the protection or conservation of, or research into, the environment.^[15]

There is a need, therefore, to select a person or group who has standing to sue, or the proceedings risk being dismissed at the outset. The risk that the court will find the plaintiff lacks standing can be lessened by using multiple plaintiffs, some demonstrably having standing to sue, coupled with others who less evidently have standing but where there is a strategic advantage in including these persons as co-plaintiffs.