Courts bring a new level of accountability to business and government

Courts bring a new level of accountability to business and government

 

Recent court cases in Australia and overseas have highlighted a willingness by courts to bring a higher level of accountability to both business and government, particularly when it comes to climate change. 

In the case of AGL v Greenpeace Australia Pacific [2021] FCA 625, AGL alleged that Greenpeace infringed its trademark and copyright rights by featuring the AGL logo in an advertising campaign aimed at pressuring the company to step away from coal production. Greenpeace argued that the logo was used for parody, satire and criticism and not for trade. In some instances, the logo was coupled with a tagline “Australia’s Greatest Liability” and in these instances the court found in favour of Greenpeace. Where the tagline was not included, the court found that the use of the logo was not parody or satire. This case potentially opens companies up to further pressure through parody and advertising. 

European courts appear to go much further. In the Netherlands a court has ordered Royal Dutch Shell to reduce its 2019 carbon dioxide emission levels by 45% by 2030, bringing it in line with the Paris Agreement. The case of Friends of the Earth v Shell is significant because it found that Shell not only has to comply with the laws of the Netherlands but is also bound by global policy like the Paris Agreement. In addition, it found that under Dutch law Shell had an ‘unwritten standard of care’ to respect and remediate adverse impacts to human rights. In addition, the court found that the company’s responsibility for carbon dioxide emissions extended to its suppliers. While this case specifically relates to gas, similar principles could be applied to other energy sources in the future. 

There are some elements of this case that remain unclear, specifically the court implied that their decision applies to the entire Shell group, not just its Dutch interests. While this is yet to be challenged there are examples where courts in Australia have considered global climate policy in their decisions. 

While not going as far, the case of Sharma v Minister for the Environment [2021] FCA 560 shows that courts in Australia are also more than willing to intervene in climate matters. 

This case was a class action brought by eight high school students seeking to stop the Minister for the Environment from approving the proposed expansion of the Vickery coal mine in New South Wales. The claim was bought under ss130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act). The students claimed that the proposed expansion would emit 100 million tonnes of carbon dioxide into the atmosphere, breaching the Minister’s common law duty of care to protect Australian children from harm caused by the health impacts of climate change. 

While Bromberg J didn’t grant the students an injunction, they did find that the Minister had a novel duty to take reasonable care not to cause personal injury or death when exercising their powers under the Act. The court limited the duty of care to personal injury or death, ensuring that the Minister’s powers under the Act remained largely intact.  

While the Minister can still exercise their discretion it is now subject to court review. This decision adds a new layer of complexity for companies seeking approvals under the Act, and potentially under other legislation with similar provisions. 

These cases all highlight a trend towards increased intervention by the courts in environmental matters. It is to be expected that this will result in more litigation where legislators are either slow or unwilling to intervene.