In 2024, more stakeholders will seek to use the courts as a method to seek climate justice and the outcomes of these cases will have significant implications for the legal, political, and social responses to the climate crisis in Australia and beyond, according to a new prediction insight by legal advisory firm Clyde & Co.
The insight states that corporate regulator has taken proactive steps, bringing penalty proceedings in relation to alleged ‘greenwashing’. Forthcoming judgments on the penalty proceedings will give guidance as to the cost of misleading the public with respect to environment, social and governance (ESG) issues.
The firm said, “We anticipate that 2024 will bring more litigation and reflective attempts by businesses to mitigate exposure. In particular, we expect to see an increase in two areas.
“First, human rights-based claims that challenge government policies and decisions impacting the environment such as the complaint filed in 2020 by a Torres Strait islander against the Australian government at the UN Human Rights Committee regarding its alleged failure to reduce greenhouse gas emissions and protect the islands from sea level rise – violating rights to culture, family and life.”
“Secondly, with corporate disclosure and management of climate-related risks and opportunities, the stakeholders expect more transparency and accountability from business on ESG. Failure to provide this has led to claims by the regulator but also shareholders – such as in 2019 when Commonwealth Bank of Australia was sued for failing to adequately disclose its exposure to climate change risks in its annual report.”
The insight said it expects that the courts may adopt a more progressive approach to interpreting and applying the law in light of societal expectations regarding the climate crisis, establishing precedent advancing the cause of climate justice.
Clyde & Co anticipates that the courts could be asked to determine broad questions including:
- The existence and enforceability of a constitutional or common law right to a healthy environment
- The duty of care owed to future generations
- The fiduciary obligations or duty of care owed by governments and corporations to protect the environment
It said this space is moving fast, and it anticipates more and more court action as the climate crises continues to escalate.