Regurgitators Anonymous – from the leadership of Swiss women to litigation on solar farms

This fourth column in our series recognises the frustrations and promises of the WOE business. As pressure accelerates on the energy transition, it’s illuminating to connect some of the dots between politics, policy, the economy and law. This explains why lawyers need to be capable of bringing tailored advice and insights to clients, which means no more hiding behind the ideas and words of others.

Regurgitation. It’s a comfortable refuge in the absence of insight, but it has little commercial value except to the regurgitator who gets away with it. Repeating what the law says (merely using the words of the legislation) becomes unhelpfully derivative very quickly, especially where it dominates a lawyer’s approach to giving advice in a commercial context. It’s enough to make anyone a little nauseous.

And it partly explains why the mystery of climate change still dwells in the sometimes dimly lit corners of the whole of environment (WOE) den. Who’s willing to risk going back for their hat?

Feelings of both frustration and opportunity underlie the aims of the WOE Report – to reveal the value of interpreting, deconstructing, connecting and digesting laws, facts, and policy ideas instead of just regurgitating them. Anything less is a profoundly inadequate aim.

While it isn’t always successful, climate change litigation is one of the most powerful mechanisms by which governments can be held accountable for decisions that significantly affect the environment.

The need for more insightful leadership on WOE matters, including in the public domain, isn’t news. In an article published by the Sydney Morning Herald (SMH) in 2005 on public intellectuals, the then assistant editor Michael Visontay said that “the environment” had spawned the public scientist Tim Flannery “but surprisingly few other truly leading lights”. Visontay’s words don’t sound out of place today, almost 20 years later, even if they should be more surprising by now.

The SMH’s nod to Tim Flannery was prescient – he went on to become a Professor of Climate Risk and was named Australian of the Year in 2007 in the Howard government’s final year of power.

Curiously, since Professor Flannery, no other Australian of the Year has had that honour principally bestowed by reason of their contribution to WOE. You’d have to go back to 1994 to find any other recipient for whom it was an obvious priority, when the late Ian Kiernan was named on the back of the success of his Clean Up Australia campaign.

That makes only two in the past 30 years, half of which fall this side of the day Kevin Rudd famously called climate change “the great moral challenge of our generation”, also in 2007. It could mean we are overdue for WOE to spawn another incisive leader if not a future Australian of the Year.

There may be doubts as to whether the interconnecting moral imperatives of conserving WOE, transitioning away from fossil fuels, and limiting global warming, are within the purview of public commentators to help solve.

These matters sit cheek by jowl with the question of how progress on climate change can be achieved sustainably and economically. As with all kinds of change, public engagement and visibility is essential.

The track record for political leaders in climate is not good

In terms of other public figures, it’s clear that woe betide the politician (for instance Kevin Rudd, Julia Gillard, Malcolm Turnbull and arguably Bill Shorten) who directs any one or combination of these issues to the epicentre of their policy stage.

An example played out in the last week of March 2024. In and around that week, the Australian government introduced draft legislation to establish a new federal body (called the Net Zero Economy Authority) that’s intended to promote an orderly transformation to net zero.

This coincided with a trip by the Prime Minister and others to the Hunter Valley, in NSW coal-country.

The trip was used to announce the new $1 billion government investment in the so-called “Solar Sunshot” program, which was designed to support the Australian-made solar panels industry. That is, it’s meant to help build Australia’s solar photovoltaic manufacturing capabilities so that we can rival offshore competitors in the production of solar cells, modules, and other infrastructure. Still, while details of the solar program were still photosynthesising, the trip itself became the story.

All the promise of progress – including local jobs in manufacturing to help ease the economic pain of retiring fossil fuel assets – was obscured in a media furore around how the Prime Minister and others arrived in the Hunter Valley.

Rather than arriving in one big jet, the delegation arrived in two smaller jets. The government attempted to explain this by reference to the size of the Scone airstrip, even as accusations of hypocrisy (presumably arising from the jets’ carbon emissions, as occasionally levelled at others of the jet set) and the misuse of public funds made headlines. The government said the use of two jets was recommended by the Royal Australian Air Force. Members of the opposition called it a “scandal”.

Good policy can be easily derailed

If this were an isolated example of how easily policies directed at the betterment of Australia’s economic and environmental future can be derailed by the politics of politics and the priorities of journalists, then it wouldn’t be worth commenting on. The chorus of Alanis Morissette’s Ironic is on repeat.

Blink and you might’ve missed the Prime Minister’s follow-up announcement from Brisbane about the proposed “Future Made in Australia Act” in mid-April. He said it will bring together a package of initiatives to boost investment, create jobs and seize the opportunities of a future made in Australia to effectively share dividends among workers and communities. Sounds good in theory.

Outside politics and journalism, few Australians have visibly taken up the mantle of seeking to persuade the public that revolution is required in terms of how WOE and energy generation are conceived.

Australia’s had no answer to Sweden’s Greta Thunberg. Nor are there any truly household names in Australian renewables (apart from the few obvious ones in electric vehicles) that look set to be the equivalents of their fossil fuel forebears in profile or influence.

So maybe it’s only the biblical powers of law and economics that are truly capable of circumventing the threat of intellectual, social and political paralysis. In our last column, we foreshadowed an ongoing discussion about climate change litigation. The article by Dr Mark Hamilton to which we referred indicates that there’ve been more than 300 domestic cases that comprise climate change litigation in the time since the founder of Clean Up Australia was named Australian of the Year in 1994.

“Climate change litigation” could be a misnomer given almost all of this work – about 90 per cent – falls under domestic environment laws predating the climate-specific legislation this federal government has enacted since 2022.

Australia is second only to the United States of America in terms of the total number of climate change cases in any jurisdiction in the world.

While it isn’t always successful, climate change litigation is one of the most powerful mechanisms by which governments can be held accountable for decisions that significantly affect the environment.

It’s also an opportunity for companies undertaking activities with environmental impacts to defend the legality and merits of those projects. This litigation can be based on anything from environment laws and planning legislation to constitutional questions, corporate law obligations, human rights, or novel legal arguments. 

Concerns about the consequences of global warming have motivated many of these cases, particularly those opposing new or expanded fossil fuel projects.

Even when there is no attempt to question the science from either side (note: it now seems settled in Australia that it’s not “absolute crap”, despite bare assertions to the contrary), climate change concerns inform arguments both for and against major projects. This litigation can be run and won by almost anyone.

The Swiss women and why they won their climate case

Earlier this month, the triumph of a group of Swiss women (said to be aged 64 or over) in the European Court of Human Rights came to international prominence. The women brought an action against the state of Switzerland on the basis that the government’s failure to adequately address climate change exposed them, based on their age and gender, to a higher risk of death by heatwave. The Court agreed.

The effect of the case is that Switzerland (and most likely other signatories to the European Convention on Human Rights) has obligations to take more definitive steps to reduce GHG emissions to align with its stated targets. Greta was there to congratulate the women on their win. Many have observed that the Court’s findings could inspire similar actions by groups across the world.

A group of Swiss women in the European Court of Human Rights brought an action against the state of Switzerland on the basis that the government’s failure to adequately address climate change exposed them, based on their age and gender, to a higher risk of death by heatwave. The Court agreed.

According to the UN’s report on global climate change litigation for 2023, Australia is second only to the United States of America in terms of the total number of climate change cases in any jurisdiction in the world. Although the United States is often regarded as a litigious jurisdiction, when the total number of climate cases for each of the two countries is adjusted on a per capita basis, Australia and the United States are almost equals (actually, Australia could be close to leading if there’s any difference to split).

There’s the opposition to renewables – the NIMBYs again

And yet there’s a risk that climate change litigation can also go the other way – pushing back against the march of renewable energy projects. The opposition to renewables has the potential to delay or cancel new wind, solar, battery, or pumped hydro projects notwithstanding that on almost any view renewables are the only real pathway to carbon neutrality.

Our team has run the litigation for the developers of the first and only solar farms to have ever been approved by the courts after full hearings in NSW and Queensland history.

The opposition to renewables has the potential to delay or cancel new wind, solar, battery, or pumped hydro projects notwithstanding that on almost any view renewables are the only real pathway to carbon neutrality.

Since then, another solar farm case in NSW has been unsuccessful because the Land and Environment Court decided that the site wasn’t appropriate for a solar farm.

In these cases, government authorities opposed the solar farm projects on various bases, often with further opposition coming from local residents.

“Not in my backyard” (NIMBY), is a frequent catchphrase of some of those seeking to mobilise resistance to renewables projects. This can be the case even if reasonable minds wouldn’t differ as to whether the projects are globally better for WOE.

Industry leaders have told us that the big bang in solar and wind farms during the past 10 – 15 years has put a tight squeeze on the number of ideal sites available in Australia.

A lot of the most suitable sites (near available transmission infrastructure, away from established residential development, and not on land earmarked for other purposes, for instance) appear to have been approved or developed for renewable projects already. This means developers are being forced to look at potentially more constrained sites, which may give rise to further litigation including arguments as to the priority of conflicting land uses.

Will a cash offer help?

In economic terms, the bare fist of money might provide another answer to the question of how we incentivise more people and businesses to get on board with the energy transition.

There’s always been a lot of money to be made in fossil fuels. But if our net zero targets are to be met by 2050 (as well as Australia’s related target of 82 per cent clean energy by 2030), there has to be economic incentives in renewables too.

There’s scope for Australia to have a leading role across the lifecycle of the renewables business, thereby aligning with moral and social values about sustainability. This needs to be viewed through the lens of projects being facilitated and actioned as a priority, knowing that countries like the United Kingdom and Germany are aiming for decarbonised power systems by 2035.

As we said in our first column, projections indicate that about $9 trillion is going to be spent in realising Australia’s energy transition. For context, that’s more than double the estimated amount in Australian superannuation funds. It’s enough to buy and sell the richest person in the world more than 30 times.

Who needs more heatwaves, hot air, or regurgitators when there’s so many hats to wear?

Samuel Allam and Anna Vella, Baker McKenzie