Climate change and the law

Deakin Law School's energy regulation and policy expert, Professor Samantha Hepburn, was a key speaker at a recent capacity-crow Climate Change and the Law forum hosted by Melbourne's RMIT University

Examining the existing legal approaches and mechanisms around climate change, Prof. Hepburn’s presentation also focused on the Federal Court of Australia’s August decision to dismiss the Australian Conservation Foundation’s (ACF) challenges to the controversial Adani coal mine in central Queensland.

Prof. Hepburn was one of five high-calibre academic and legal panellists who tackled the emerging issues around legal avenues to fight climate change.

‘It’s a very significant topic,’ she said. ‘The panellists’ presentations were all on different, but synergistic, areas  which included the existing legal approaches to climate change, the impacts of climate change and the imperatives for systemic change  (especially in the energy sector) and  how we approach fundamental private and public legal principles when dealing with climate change litigation.’

Exploring the current legal framework, Prof. Hepburn spoke about the need to reconceive existing legal principles – such as duties, causative links, concepts of remoteness, ethical responsibilities – and their relevance to the Full Federal Court decision on Adani.

‘Climate change does not fall easily into pre-existing categories of harm recognised by the law because it concerns anticipated harm – and this is dispersed across the globe,’ she explained. ‘It is described as “the product of multiple agents working in an interdependent global market economy” but it is a drop-in-the-ocean argument.  Do the activities of individual actors make a difference? How should our governance frameworks this?’

She explained that the Adani decision exemplified some of the difficulties in sustaining climate change action within the confines of the existing legal boundaries.

‘The ACF argued that the Federal Environment Minister had failed in his duty to consider the mine's impact on the Great Barrier Reef. However the court found that the approval of the Minister was lawful, the Act gave the Minister clear discretion, and it was exercised appropriately. There’s also no overarching domestic legal framework to support international climate change imperatives, no public trust doctrine (such as the guardianship principle that exists in the USA) and there’s a lack of bi-partisan political will.’

Prof. Hepburn concluded her presentation with the observation that a study of climate change litigation has revealed that courts across the world are now faced with arguments that cannot be ignored.

‘There’s a very real 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.’