Climate change litigation - a two-edged sword
By Anthony Cox and David Stockwell from:
Anthropogenic Global Warming [AGW] litigation has so far largely been by Green groups against industry such as power generators Macquarie Generation and miners such as Xstrata. Generally this Green litigation has struggled and the irony is whatever success they have had may come as a Pyrrhic victory if it not only opens the floodgates for anti-AGW litigation but also creates grounds for specific litigation against Green groups.
For example, Maurice Blackburn lawyer, Elizabeth O'Shea, advocates litigation to block a new brown coal and natural gas power plant using "syngas". Ms O'Shea's case rests not only on the provable fact that both coal and gas release pollutants, but also accepting that AGW is real and that the coal industry contributes disproportionately to it.
Maurice Blackburn's rival in class actions, Slater & Gordon, is considering a class action against the Wivenhoe dam operators, seeking a remedy for the massive damage bill due to the recent Brisbane floods. Much of the analysis of the Wivenhoe dam's involvement in the catastrophic Queensland flood is based on whether the dam operators, SEQwater, followed the "manual" which deals with water release. The manual prescribes 4 levels of water release from W1 to W4 with W4 being the greatest. W4 would only occur when the dam integrity is threatened.
An AGW defence by SEQwater might be used to justify releases not "by the manual". Wivenhoe dam was constructed as a response to the 1974 floods. It was built as a flood mitigator. There is evidence that at the time of the 2010 flood, despite an impending wet season, Wivenhoe was filled to at a 100% supply level because AGW predictions were that water shortages were going to prevail.
If it had not been full it could have performed its intended role as a flood mitigator and reduced or even eliminated the damage to Brisbane City. Whether the water releases were "by the manual" or not would be moot because no releases would have had to be done. Therefore, to succeed in such a claim against the Wivenhoe dam operators, ultimately the taxpayer, Slater and Gordon may argue that the dam was not being used appropriately for its original intended purpose.
Legally, therefore, SEQwater may argue they were acting on expert advice that AGW causes droughts, in which case a full dam was a reasonable precaution and alteration of its original intended purpose and the water releases were the best that could be done. The plaintiff's response could be 2-fold; firstly they could agree that AGW was real but cite where experts say AGW will cause both droughts AND floods, of extreme types; in which case the dam was being used in a way which only dealt with one part of AGW. Alternatively they could argue AGW is problematic and that changing the role of the dam ignored natural factors and the likelihood that another flood similar to 1974 was likely to reoccur.
These are contentions that should make for lively banter at the next meeting of the Entrepreneurial Litigation Association.
Ms O'Shea also relies on the precautionary principle as described in the Victorian Environmental protection Act 1970, Section 1C. Again, in respect of AGW, this section may be moot because while the Section speaks of "a lack of full scientific certainty" not being a bar to preventing environmental degradation, it is not clear scientific certainty for or against AGW rises to the level that would confer standing. Certainly "full scientific certainty" would apply to elements of coal and gas use such as mercury, nitrous and sulphuric oxides and particulates, water contamination and competition with agricultural land use. But none of these pollutants have anything to do with AGW.
Moreover, there are clear remedies that could be applied to conventional pollutants. The particulate issue can be rectified by covering stockpiles of coal, dampening and more efficient transportation. The toxic trace elements issue could be resolved by the introduction of ultrasuper-critical coal technology. This technology is not only greatly more efficient than all other forms of energy production but because it operates at such high temperatures it eliminates most of the real pollutants such as the oxides and mercury.
Coal companies are making a strategic error here. They should acknowledge and rectify the well-known coal-related pollutants, and argue the lack of merit of AGW theory, instead of hiding behind the chimera of Clean Coal or carbon capture technology [CCS]. The problems of CCS are obviously insurmountable: the energy required to capture the CO2 emissions when the coal is burnt requires about as much energy as the coal produces. Secondly, the final sludge containing the captured CO2 requires a storage space about 30 times the size of the quarry from which the coal was mined. To date CCS has cost the Australian taxpayers and the coal industry about $400 million. The coal industry could have solved the particulate problem and made a start on introducing ultrasuper-critical technology.
The point here is that conventional pollution is justiciable because of its degree of certainty. AGW, because it perhaps lacks sufficient certainty to even satisfy Section 1C, is of dubious legal value.
Unfortunately Ms O'Shea concludes her article in a deluge of the usual emotive symbology which proponents of AGW resort to. The continued use of children as the victims of AGW is particularly regrettable as has been argued here.
Equally regrettable is Ms O'Shea's reference to the 2009 'Black Saturday' bushfires. Along with the 2010 Queensland floods the Black Saturday fires have been the two worst natural disasters Australia has had in recent times. Potential litigants of AGW have claimed these as evidence of damages.
This is wrong in both cases. The 2009 Black Saturday fires were comparable with the 1939 Black Friday fires with both events happening at similar times of the year with similar weather patterns and temperatures. Arguably, if the Urban Heat island effect is considered, Melbourne's record temperature in 2009 would be less than the 1939 temperature.
More people perished in the 2009 event due to more people living in the affected areas and manifest incompetence in the official response to the fires. But green-bans on reduction of undergrowth played a part as various experts argue. This is shown by the case of the Sheahans who were fined nearly $100,000 in 2003 by the Mitchell Shire council for unauthorised land clearing. Yet, after the 2009 fires the Sheahan's house was the only one in the district not burnt to the ground. Clearly, if AGW were to blame for increased fire risk due to increased fuel loads and low humidity, the proponents of green-bans would be even more liable in any class action because their policies prevented reasonable mitigation of those risks.
By including AGW as a basis for litigation and not concentrating on real pollution issues the Green groups are not only opening the floodgates for anti-AGW litigation but presenting themselves as a target for their role in making the effect of AGW worse on the basis that the policy responses to AGW have been inappropriate