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Children and climate litigation agenda

Children and climate litigation agenda

It's been a mixed month of wins disguised as losses for young activists, as every step backwards has been offset by 2 steps forward. Sounds like a GHG-effect we'd be happy with...

Understandably, a lot of youth activism for climate is centred around the big polluter and resource robber, fossils fuels. It's not the only activism strategy, but it is the one that sees increasingly younger people in court rooms chasing injunctions, going to shareholder meetings, trying to join boards and out on the streets on Fridays instead of going to school.  

Teenager misses his tilt on AGL Board, but clean energy focus is front and centre

In Australia, teenage climate change activist Ashjayeen Sharif had been nominated to fill a vacant spot on the AGL board, making a pitch to shareholders that he would accelerate AGL’s shift out of fossil fuels towards greater investment in clean energy. While valiant, he was of course wide open to the AGL board recommending that shareholders vote against the appointment, citing a lack of previous experience and qualifications needed for such a board. While his bid was unsuccessful, the 18-year-old still secured support from just over 2 per cent of proxy voters along with a pile of attention and public support. David Ritter, from AGL's nemesis, Greenpeace, said:


The great irony for AGL of course is that a toddler or an election-picker alligator could give clear indication of what to do next - by literally pointing a finger or snout anywhere but here, as their collapsing profitability has sent the AGL share price plummeting.

Fossil fuel time is up and AGL shares have shed around 80 percent of the company’s market capitalisation in the last two years. AGL CEO Graeme Hunt conceded the company had 'failed to anticipate the rapid pace of change' driven by a consumer shift to cleaner energy sources. (AGL is Australia’s largest greenhouse gas emitter, operating three of Australia’s largest coal generators in the Liddell, Bayswater and Loy Yang power stations. Having spent years promoting their clean energy credentials, Greenpeace recently outed AGL's real operations in a greenwash report. )

Whitehaven Coal’s Vickery mine given green light by environment minister

Eight students brought a case against Whitehaven Coal's Vickery mine extension last year. They were seeking an injunction to stop the extension and while the injunction failed, the judgement in March 2021 did find that the responsible minister had a duty of care to not act in a way that would cause future harm to young people. 

The federal environment minister, Sussan Ley, is appealing the 'duty of care' decision and in mid-September 2021, just weeks out from COP26, has gone ahead and approved the mine extension. The mine is projected to empty roughly 100 million tonnes of CO2-equivalent greenhouse gasses into the atmosphere, according to the NSW Independent Planning Commission. It is hard to imagine how that level of  emissions isn't harmful for our future generations, but there you have it. 

While the children behind the challenge, their lawyers and the majority of Australians are understandably completely taken aback by the decision to proceed, the "duty of care" ruling stands until (if) overturned and it is hard to see any future in coal mines, given AGL's experience.

Climate litigation isn't just for teenagers

Climate litigation more broadly, is heating up as fast as the planet. As different avenues are tested, strategies evolve, the human-rights approach is the legal strategy that has had the most success so far in forcing governments’ hands.  

While law suits based on the human rights argument have now been brought on every inhabited continent against governments, plaintiffs are increasingly going after the producers of emissions themselves. Putting forward science-based arguments about how to link a specific greenhouse gas emitter’s actions to global climate change and how foreseeable, climate-driven extreme weather events can be linked to specific harms suffered by plaintiffs: sea-level-rises, toxic chemicals, investment failures, disease and deception in relation to risks. 

The direct corporate target strategy is more pragmatic for several reasons, beyond the obvious complexity of challenging governments. Emitters usually have customers who are increasingly climate and investment aware - and tend to vote with their wallets. Further, when these cases are won, they typically involve a cash penalty which can be used by the plaintiff to fund future climate-mitigation efforts, while also having a material impact on the target emitter.

Trends in Climate Change Litigation

According to the UN Global Climate Litigation Report, climate cases mostly fall into one or more of these six categories:

  1. Climate rights
  2. Domestic enforcement
  3. Keeping fossil fuels in the ground
  4. Corporate liability and responsibility
  5. Failure to adapt and the impacts of adaptation
  6. Climate disclosures and greenwashing

Image: Ashjayeen Sharif - Facebook / Infographics: UN Global Climate Change Litigation Report 2020

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