Climate Change and the Law: An Evolving Paradigm Professor Samantha Hepburn Director, Centre for Energy and Natural Resources Law Deakin University

International Dimensions It is now globally acknowledged that climate change is an issue that must be addressed. At the 21st Conference of the Parties (‘COP21’) to the United Nations Framework Convention on Climate Change the European Union adopted the Paris Agreement. The Paris Agreement defines a universal, legal framework to ‘strengthen the global response to the threat of climate change’ (Art. 2). Supranational, federal and state regulatory and policy responses are accelerating. Climate change has also begun to give rise to many different types of litigation.

Climate Change and Legal Frameworks Legal frameworks have well-established doctrines, means of regulation, and dispute resolution procedures. Principles such as the rule of law and separation of powers form the constitutional foundation of many legal systems. Climate change action is assessed by reference to these core principles. Articulating climate change as a legal problem does not always sit easily with these principles. This is apparent from the growing body of case law on climate change. The cases are interesting because courts and tribunals are places where social, moral, ethical and economic conflicts caused by climate change are manifest as legal issues and we expect corresponding legal resolutions.

Core Legal Questions: How should law recognize climate change as a problem and develop a response to it? Private and public dimensions relevant to this question? Climate change does not fall easily into pre-existing categories of harm recognized by the law because it concerns anticipated harm. And this anticipated harm is dispersed across the globe. (Adani) Climate change described as ‘the product of multiple agents working in an interdependent global market economy.’ Drop in the ocean argument – do the activities of individual actors make a difference? How should our governance frameworks this? Need to reconceive established perspectives regarding: statutory, common law and equitable responsibilities and duties, causative links between behaviour and outcomes, the concept of direct and indirect impacts, how we articulate detriment and damage, how we integrate ethical responsibilities, how we manage jurisdictional impediments.

Adani as a Case Study Largest coal mine. Coal fired electricity generation using ‘dirty coal’ increases greenhouse gas emissions. Health issues. Great Barrier Reef. Stranded Assets. Transparency and accountability re: Northern Australian Infrastructure Fund and railway loan. International Principles of Ecologically Sustainable Development: Intergenerational equity, the precautionary principle. Domestic law. Focus upon the EPBC Act ( National Environment Act). Was the Minister in breach in granting environmental approval? ACF argued Minister failed to give consideration to GHG from transportation and combustion. ACF argued Minister failed to apply the precautionary principle

Adani - Emissions In order to limit warming to beneath 2°C above pre-industrial levels, no more than 850 billion tonnes (Gt) with carbon dioxide equivalent greenhouse gas emissions (CO2-e) could be emitted globally after 2015 (joint expert report in the Land Court) The combustion emissions would be about 4.64 Gt of CO2-e or about 1/183 of the total available global emissions if warming is to be limited to 2°C; The combustion emissions (4.64 Gt of CO2-e) would be about 54 times greater than the mining emissions from the coal mine directly (0.086 Gt of CO2-e).

Adani - Outcome The Full bench of the Federal Court (25 August, 2017) dismissed the ACF’s arguments that the Federal Environment Minister had failed in his duty to consider the mine's impact on the Great Barrier Reef. Approval of the Minister was lawful. Act gave Minister clear discretion and it was exercised appropriately. “The Minister understood that the provisions of the United Nations Framework Convention on Climate Change and the Kyoto Protocol, place responsibility for dealing with the overseas emissions upon the countries consuming the coal.”

Full Court Reasoning GHG poses an ‘existential threat’ to the reef. Extent of threat depends upon how GHG emissions are addressed globally. Overseas transportation and combustion GHG is extensive (see previous slide); Overseas GHG are indirect consequences of the Proposal; Increase in overseas GHG variable: will coal substitute other energy sources, efficiency of coal plant, international obligations. Cannot come to “robust conclusions” about how this Proposal would likely contribute to increased global temperatures from overseas emissions; Difficult causative link. Can’t connect the Proposal and impacts on matters of national environmental significance (ie Great Barrier Reef) which may flow from increase in global temperature.

Issues: Adani: Difficult to sustain climate change action within the confines of existing legal framework in EPBC Act. Discretion and relevant considerations given broad scope. Articulating combustion emissions as ‘overseas’ emissions – distancing legal responsibility. Reliant upon existing legal principles relevant to responsibility, judicial conventions of comity and constitutional restraint and administrative review of Ministerial discretion. Vehicle for public action is the nation state within a public resource framework. Public interest responsibilities ill-defined in EPBC Act. No trigger for GHG. No overarching domestic legal framework to support international climate change imperatives. No public trust doctrine – guardianship principle as exists in the U.S Lack of bi-partisan political will

Conclusions A study of climate change litigation reveals that courts across the world are discovering that arguments are being made before them that they cannot ignore. Need to find a path through strict legal impediments to come up with better solutions. Climate change forces us to re-evaluate how we adjudicate and how we apply legal reasoning. It forces us to reimagine our internal legal paradigms. As Christine Lagarde has stated legal evolution is, ‘macro- critical, people-critical and planet-critical.’