A “Next Generation” of Climate Change Litigation?: an Australian Perspective

Abstract

Since conclusion of the Paris Agreement and the high-profile Urgenda case, potential new avenues for strategic climate litigation have received considerable attention in many countries, including Australia. Australia already has a substantial climate jurisprudence, primarily involving administrative challenges under environmental laws. This paper aims to examine the prospects for a “next generation” of cases focused on holding governments and corporations to account for the climate change implications of their actions. We draw on analysis of existing legal precedent and emerging cases to explore four key aspects: drivers for next generation lawsuits, potential legal avenues, and likely enablers and barriers. The paper uses the Australian experience as a case study but draws also on litigation trends globally. We find that the most fruitful strategy for future climate change litigation is likely to be one that advances lower risk cases building from the base of existing litigation, while simultaneously attempting novel approaches.