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Legal options for climate campaigners

Legal options for climate campaigners. Michael Power Lawyer – Law Reform Environment Defenders Office (Victoria) Climate Action Summit 9-10 April 2011. The EDO. Independent, not-for-profit, community legal centre practicing public interest environmental law Three types of work:

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Legal options for climate campaigners

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  1. Legal options for climate campaigners Michael Power Lawyer – Law Reform Environment Defenders Office (Victoria) Climate Action Summit 9-10 April 2011

  2. The EDO • Independent, not-for-profit, community legal centre practicing public interest environmental law • Three types of work: - Legal advice and litigation - Policy and law reform - Community education and outreach

  3. Today • Litigation - Pros and Cons - Options - How we can help • Law reform - Pros and Cons - Options - How we can help

  4. What do you already know about climate law?

  5. Litigation

  6. Litigation - options • Judicial review • Merits review • Torts • Enforcement • Greenwashing

  7. Why litigate? • Legally binding, independent • Time and money for developer • Foster public debate

  8. Why not litigate? • Can be overturned or circumvented • Time and money for you • Project-by-project basis

  9. Judicial Review • Did the decision-maker follow the legal requirements? • Focus on technicalities, not merits. • Decision-maker can have another go. • Can set precedents (eg PP)

  10. Example: Anvil Hill Litigation

  11. Example: Wildlife Whitsunday

  12. Judicial Review • Costs are the biggest problem for any case that goes to court. • Loser pays the winner’s costs • Public interest cost orders and protective costs orders are weak protection

  13. Judicial Review • When is it best? • High importance developments • What to look out for • Must be a decision • Did they consider the climate change impact? • Were they required to?

  14. Opportunity: Climate Change Act 2010 (Vic)

  15. Merits Review • The initial decision is re-made by a tribunal as if it were the decision-maker • Usually in tribunals – no risk of costs • Not always available • Low (no) precedential value

  16. Gippsland Shire Council

  17. Merits Review • What to look out for • Decisions that are merits reviewable (planning) • Failure to consider impact of climate change • When is it best • Whenever you can get it!

  18. Tort • Very old common law actions for damage to private interests • Key ones for climate law are nuisance, negligence, trespass • Action must cause damage; damage must not be too remote

  19. Example: Comer v Murphy Oil Co

  20. Opportunity: trespass

  21. Tort • What to look out for • Damage caused by negligence/nuisance • Private property • When is it effective • Private property • Even then, rarely - remoteness & causation

  22. Enforcement • Breach of an environmental statute • Injunction • Private prosecutions

  23. Example: Gray v Macquarie Generation

  24. Enforcement • What to look out for • Conduct that might be in breach of an Act • The right to take proceedings • When is it effective • Difficult to succeed • Show that carbon is pollution like any other

  25. Opportunity: Climate Change Act 2010 (Vic)

  26. Greenwashing • It is illegal to engage in misleading and deceptive conduct in trade or commerce • ACCC can bring proceedings • Anyone can claim injunction • Compensation for loss or damage

  27. How we can help • Information • Advice • Representation

  28. Law Reform

  29. Why law reform? • Systemic, not piecemeal, focus • Legally stronger • Laws can deliver lasting change • Earlier stage of decision-making process

  30. What options? • Submissions • Objections

  31. Submissions • Free and easy • Important detail • Taken seriously • Often largely defensive

  32. Opportunity: Carbon Farming Initiative

  33. Objections • What to look out for • Opportunities: • EDO law reform calendar • EDO eBulletin • When is it effective • When process taken seriously (eg in a hung Parliament) • When detail is important

  34. Objections • Statutory process • Potential campaign tool • Can give objector extra legal rights, and open doors for further litigation

  35. Example: HRL power station

  36. Opportunity:New coal licences

  37. Objections • What to look out for • Statutory rights (new licence, planning permit) • Time limits • When is it effective • Lots of concern (HRL) • Set up future legal challenge

  38. How we can help • Information • Advice • Representation

  39. Questions?

  40. Contact the Environment Defenders OfficeMetro: (03) 8341 3100Regional: 1300 336 842www.edo.org.au/edovic/edovic@edo.org.au

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