Chapter 2: Climate Change and Administrative Law
Anna Huggins and Ellen Hawkins
Administrative law provides an important avenue for protecting the rights and interests of citizens affected by the decisions and actions of government agencies. Governments regularly make a range of climate-related decisions, such as deciding whether to approve new coalmines. Concomitantly, there is a high volume of climate-related administrative law challenges in Australia and internationally. Although these legal challenges have met with mixed success, their broader significance includes generating pressure for evolution in regulatory and policy frameworks.
This chapter considers the extent to which climate change is disrupting administrative law. It considers climate-related challenges under the three main categories of judicial review: illegality, irrationality and procedural impropriety. It also considers merits review cases involving climate change.
The chapter invites you to reflect on why climate litigation has not, to date, significantly disrupted well-established Australian administrative law doctrines, particularly through the judicial review avenue. It also encourages reflection on the important role administrative law plays as a pathway for catalysing regulatory change in Australia and beyond.
Key Questions
- To what extent is climate litigation disrupting administrative law in Australia against the backdrop of the separation of powers?
- In what ways are administrative law cases involving climate change creating pressure for evolution in regulatory frameworks in Australia and internationally?
Chapter Outline
This chapter does not provide a comprehensive coverage of relevant doctrines, frameworks, cases and scholarly commentary relevant to climate litigation in administrative law. Rather, it provides select examples to illustrate key themes. See the references for more information on these topics.
Examination by a court of the legality (rather than the substantive merits) of an administrative decision.
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.
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).
The division of government responsibilities between the legislature, which makes the law, the executive, which administers and enforces the law, and the judiciary, which interprets and adjudicates disputes about the law.
