Climate litigation is democracy at work, not a ‘misuse’ of the courts

This week, the Federal Court of Australia published its reasons for judgment in the case of ACCR v Santos Ltd. All allegations against the oil and gas producer were dismissed.

The gas industry has responded to the judgment with a renewed call to ‘crack down’ on organisations who seek climate-related corporate accountability in court, describing it as ‘misusing’ the court system.  

The case was the first in the world to challenge the credibility of a company’s clean energy claims and net zero strategy. ACCR argued that Santos breached provisions of the Corporations Act 2001 (Cth) and the Australian Consumer Law by engaging in misleading or deceptive conduct relating to representations and omissions in its 2020 Annual Report, 2020 Investor Day Briefing and 2021 Climate Change Report.

The judge has made her ruling, and the legal community will continue to analyse the judgement, but it remains that these were reasonable and important questions to put to the court. Public interest litigation plays a critical role in enhancing accountability and is critical to a healthy, functioning democracy. It is a legitimate role of the courts to hold powers to account, and all people have the right to bring cases. It's irresponsible for industry to attempt to undermine this core function of our democracy. 

Jacqueline Peel, Redmond Barry Distinguished Professor at Melbourne Law School and Director of the Laureate Program on Corporate Climate Accountability, says:

“Where the balance should lie between flexibility for corporations to plan their own clean energy transition and the need to hold corporate actors accountable for the promises they make on climate action is a matter of live public and legal debate. These questions are complex and consequential and there is a valid part for public interest groups and litigants to play in testing these questions before the courts. 

“Moreover, the widespread nature of this kind of anti-greenwashing public interest litigation - in Australia and across many other jurisdictions - reinforces that these are public policy questions of global interest and relevance as we assess the accountability of different actors - including corporations - for climate action and activities that may give rise to climate harm.”

The Honourable Anthony Whealy KC, Chair of the Centre for Public Integrity, says:

“It is valuable to have the courts for a litmus test for what is reasonable. However, courts at first instance are often simply the start of a substantial legal process. They are fallible and their  decisions are often overturned on appeal. It is not beyond speculation to suggest that the full court of the federal court may take quite a different view and come to a different conclusion.”

"The gas industry lobby would say that, wouldn't they? They would brand this court action as dangerous, when in fact challenges like this are the very essence of democracy. This type of litigation should be encouraged, not discouraged.”

"This is democracy in action."

Joo Cheong Tham, Professor of Melbourne Law School and a Director at the Centre for Public Integrity, says:

“Holding big business legally accountable for the claims they make is not an abuse of court processes - it is the rule of law at work. Calls for a ‘crackdown’ on climate litigation risks undermining necessary scrutiny of fossil fuel companies.”

Sarah Schwartz, Legal Director at the Human Rights Law Centre, says:

“Public interest advocacy is a vital tool in a healthy functioning democracy to stop governments and companies from trampling over people and communities. People speaking up for climate action and defending democracy should be able to use public interest litigation to hold powerful fossil fuel companies accountable and protect their communities. We are seriously concerned by the fossil fuel industry's continued calls to stop people and communities from using the courts to challenge climate destruction."

Belinda Lowe, Director of Campaigns and Communication at Grata Fund, says:

“These are nothing more than narrative tactics designed by fossil fuel companies to delegitimise the right of our communities and public interest groups to hold them accountable to the law and the unequivocal scientific evidence that shows pollution produced by these companies is driving radical climate harm. Big bosses of coal and gas must remember that it’s up to a court to decide if a case has merit, not a fossil fuel executive.”

“The tobacco industry’s attempt to spin its way out of the devastating health impacts of cigarettes was no match for the scrutiny of the courtroom. Make no mistake, attacks like this from big fossil fuel companies are an attempt to shut down the growing wave of community climate litigation, and it is part of a deliberate, deeply destructive and self-interested strategy that will undermine the role of the courts and Australian liberal democracy.”

Saffron Zomer, Executive Director at Australian Democracy Network, says:

"The right to bring a case before an independent court is a cornerstone of Australian democracy. Any suggestion that certain issues — particularly those involving powerful companies — should be off-limits to public scrutiny is an attack on the fundamental right of communities to seek justice and hold the powerful to account. Courts determine merit. That is their role, not the role of the gas industry.”

Claire Snyder, Executive Director at Climate Integrity, says:

“Climate-related legal cases concern real issues of uncertainty and contested law. Climate law has only emerged in the last few decades. It is uncertain, and cases like ACCR v Santos raise genuine questions of law that deserve to be heard before a court. 

“It's certainly not for the fossil fuel industry to dictate what can and cannot be heard in court.

“Any attempts by the fossil fuel industry to delegitimize the rights of some sections of the community to access the courts should be viewed as undemocratic, dangerous and ultimately self-interested.

“While there is still much to digest in the ACCR v. Santos decision, it is important to note that both parties in the case agreed that the production and use of natural gas involves the release of greenhouse gases into the atmosphere, which contributes to the harms associated with the impacts of climate change.”

“With communities and economies around the world experiencing the escalating impacts of climate change, and scientists warning we are on a ‘hothouse’ trajectory with potentially irreversible consequences, hearing public interest climate cases with legal merit is a vital and appropriate role of the courts.”

Contact

Media enquiries: media@climateintegrity.org.au