“Even the most powerful must answer questions:” Australia ranks 2nd in world on climate litigation

Australia remains the second-most active jurisdiction in the world for climate litigations as an increasing number of cases move closer to setting precedents that would allow some of the world’s biggest fossil fuel producers to be held responsible for climate harms.

A new analysis by the Grantham Research Institute in the UK found 276 climate-related cases globally had reached apex courts where decisions are likely to create critical precedents, with nearly half – 44 per cent – finding in favour of climate action.

Four in five cases challenged governments over a failure to take climate action, the analysis found, and more than 60 “polluter pays” cases were filed between 2015 and the end of 2024.

These decisions seek to hold individual companies accountable for their contribution to climate change, thanks to new developments in attribution science that can help put a dollar figure to their emissions.

Recently German courts found individual fossil fuel producers could be held liable for their contribution climate harms when a Peruvian farmer sued energy giant RWE for its role in driving climate change that in turn created an inevitable risk of catastrophic flooding in his city.

Though it broke new ground, the farmer ultimately lost on an evidentiary basis.

The result of these cases extends far beyond individual courtrooms. As courts confirm fossil fuel companies are legally liable for harms caused by their historical activities, these risks are factored into future decision making by financial institutions and insurance companies thinking about investment in a new fossil fuel development.

Using data gathered by the Sabin Center for Climate Change Law, the analysis found almost 3000 cases were filed up to the end of 2024, in 60 countries. The majority were in the US (1899) Australia (164), the UK (133), and Brazil (131).

Catherine Higham, Senior Policy fellow at the Grantham Research Institute said the growing number of climate cases represent a material financial risk for fossil fuel producers.

“Governments and companies are increasingly having to consider the legal ramifications of pushing ahead with oil or gas projects, as they risk being dragged through the courts,” Higham said.

“The broader impacts of climate litigation are becoming increasingly visible and well-documented. It is no longer a niche concern; it is increasingly seen as a financial risk.”

As the Grantham Institute uses a more conservative definition, the level of climate activity in Australia may actually be higher.

A database kept by Melbourne Climate Futures uses a broader definition that counts cases where climate change may not be the specific focus but is still relevant.

This may include cases where people sue as part of the planning process to get access to flood maps or fire risk information, where a disgruntled investor sues a company over its lack of climate planning that may cost them money, or where climate change drives a business bankrupt.

It is currently tracking a total of 639 climate cases in Australia.

Rebekkha Markey-Towey, research fellow with Melbourne climate Futures at University of Melbourne and PhD candidate manages the database and says it was more a question of ‘when’ rather than ‘if’ Australia records a significant climate decision.

“I think it’s still too early for Australian courts to be making those kind of decisions,” she said. “I think if you give it time and we continue to build up this body of jurisprudence about climate change, to my mind it’s only a matter of a time.”

Though Australia has seen fewer total climate-related cases filed this year largely due to a perception that government and industry were taking steps to address the issue, Markey-Towey said cases being filed on a more targeted basis.

For example, two cases have been filed in recent weeks to challenge the decision to extend the life of Woodside’s North West Shelf gas processing facility to 2070, the Gomeroi people recent sought to challenge a decision to overrule their opposition to Santos $3bn Narrabri project, and there are significant decisions due to be handed down in coming weeks.

One of those is Pabai Pabai v Commonwealth of Australia where a group of Tiwi Islanders is suing the Australian government over its failure to address climate change.

The case alleges the Australian government owes a duty of care to the group under an existing treaty and has the potential to become a landmark decision that, even if not successful, will open the way for other cases to be brought in the future.

A decision in the case is expected on 15 July in Cairns.

Isabelle Reinecke, an Australian lawyer and executive director of the not for profit legal fund Grata Fund that is involved in the matter says that, as more cases are brought, companies and government are increasingly being forced to take the possibility of climate litigation seriously.

“People who have experienced great harm caused by the climate crisis or the actions of fossil fuel companies or enablers in government are able to have an even playing field in court,” Reinecke said.

“Even the most powerful people in a country are required to answer questions, aren’t allowed to rely on spin and PR and actually have to rely on the facts of the matter.”

“It can be a really powerful form of truth telling.”