3. Future Trajectories of Administrative Law: Climate Litigation and Regulatory Evolution

The above analysis considers the perspective that, at least in the context of judicial review, there is limited scope for climate-related legal disruption to administrative law doctrine, particularly as the existing law is strongly shaped by separation of powers constraints. This is unsurprising given the general limits of achieving systemic change through judicial review.^[1] Nevertheless, at times administrative law challenges can play an important role in catalysing regulatory and policy reform to address climate change.^[2] This is significant, as an increase in regulation and policies requiring consideration of climate change in decision-making may lead to a rise in successful climate litigation and vice versa.^[3] In this section, we consider climate litigation cases from Australia, the United Kingdom (UK) and the United States (US)^[4] that have generated pressure for evolution in regulatory and policy frameworks.

Climate litigation in administrative law can create impetus for development in policy guidelines to ensure administrative decision-makers adequately consider climate change. For example, in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority,^[5] a climate action group sought an order in the nature of mandamus to compel the NSW Environmental Protection Authority’s (EPA) performance of a duty to regulate GHG emissions under the Protection of the Environment Operations Act 1997 (NSW) (the PEOA). In the NSW Land and Environment Court, Preston CJ held that there was a failure to perform a public duty and ordered the NSW EPA to ‘develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change’ under s 9(1)(a) of the PEOA.^[6] Therefore, even in instances where legislation does not enshrine climate change as a relevant consideration for administrative decisions, it may still be open to the judiciary to require government to develop policies to address these limitations.

Similarly, in the US, climate litigation has played an important role in shaping regulatory responses to climate change.^[7] The Obama administration justified significant regulation of motor vehicle and power plant emissions under the US Clean Air Act in response to the US Supreme Court’s landmark 2007 decision in Massachusetts v EPA.^[8] The substantive legal issue in this case^[9] was a statutory interpretation question as to whether the EPA had the authority to regulate GHG emissions from motor vehicles under s 202 of the Clean Air Act.^[10] The Supreme Court concluded that the provisions of the Clean Air Act, while not specifically referencing fossil fuel burning, were sufficiently broad to confer statutory power on the EPA to regulate GHG emissions from new motor vehicles.^[11] In response to the Supreme Court’s decision in Massachusetts v EPA, the Obama administration introduced regulations to limit GHG emissions from motor vehicles and stationary sources such as power plants.^[12] Although many of these Obama administration regulations were subsequently rolled back under the Trump administration,^[13] this case exemplifies climate litigation that directly catalysed regulatory reform.

A recent example of a UK administrative law case that led to policy reform was R (on the application of Friends of the Earth) v Secretary of State for Business, Energy and Industrial Strategy.^[14] This judicial review case was premised on the argument that the Secretary of State failed to comply with ss 13 and 14 of the Climate Change Act 2008 when reaching certain conclusions in the government’s economy-wide decarbonisation plan, the ‘Net Zero Strategy’.^[15] Section 13 imposes a duty on the Secretary of State to prepare policies and proposals to enable the carbon budgets as per the Climate Change Act to be met, and s 14 provides that the Secretary must produce a report to Parliament setting out policies and proposals for meeting the budgetary periods as soon as practicable after setting a carbon budget.^[16] The applicants claimed that the Secretary was not entitled to reach the conclusion that the proposals in the Net Zero Strategy would enable the carbon budgets to be met as per s 13, and that he did not include information legally required to discharge reporting obligations under s 14, including omitting explanations of how the proposals would allow the carbon budget to be met.^[17] The High Court of Justice held that the Secretary lacked the legally required information to adopt the Net Zero Strategy and did not take into account the risk that policies would not achieve the statutory carbon budget as required under s 13 of the Climate Change Act.^[18] The s 14 ground was also upheld by the court, with some exceptions.^[19] Importantly, the court required the government to produce, re-approve and publish a revised and improved strategy by March 2023.^[20] This case thus further exemplifies an administrative law challenge that has resulted in policy reform to promote more robust action on climate change.