Shaping the 'next generation' of climate change litigation in Australia

Recent international developments - including the conclusion and entry into force of the Paris Agreement and the high-profile Urgenda case, in which the Dutch government was sued over its inadequate targets for reducing emissions of greenhouse gases - have sparked interest in the possibilities for exploring new avenues of strategic climate change litigation in Australia. Australia already has a substantial body of decided climate change cases. To date, most have involved administrative challenges to projects under environmental laws in order to have climate change impacts taken into account. While this 'first generation' of cases has achieved significant results, there is increasing interest in the environmental advocacy and legal communities in taking forward a 'next generation' of cases that have a broader focus on holding governments and corporations directly accountable for the climate change implications of their actions. This article is the first to explore the contours of such next-generation climate change litigation in Australia, including the drivers for these lawsuits, the potential legal avenues by which they might be brought, and likely enablers and barriers. Rather than abandoning first-generation challenges - which have targeted Australia's principal sources of greenhouse gas emissions such as coal-fired power stations and coal mines - we argue that the most fruitful strategy for future climate change litigation in Australia is likely to be one that continues to advance lower risk cases building from the base of existing litigation, while simultaneously attempting novel approaches. If sufficient resources existed, such an approach would have the benefit of allowing for more likely wins, paired with high-profile innovation that might capture the public imagination and maximise the potential for significant policy and regulatory impact.