Editor’s note: This article is part of an occasional Law.com International series on the increasing role that environmental, social and governance (ESG) issues are playing in law and business around the world.
Even as Australia’s recently elected government sticks to its promise to reduce carbon emissions and increase renewable energy use, David Barnden, the country’s most active climate advocate and one of the world’s best-known environmental advocates, expects his work to be busy for many years to come .
“We’re going to face a situation where there’s going to be a lot of suffering, a lot of loss, a lot of damage to lives and livelihoods,” said Melbourne-based Barnden. “And there will be people who want to use the court system to seek compensation and redress for those losses and for cases of wrongdoing and wrongdoing.”
There’s a growing appetite not only to prevent climate change and the problems it causes, but to get people back to where they would otherwise have been, says Barnden. But he and his firm, Equity Generation Lawyers, have also used the legal system to force governments and companies to take more action to solve the problem.
In 2018, he represented 25-year-old pension fund member Mark McVeigh in a lawsuit against the Rest Superannuation Fund, arguing that the fund violated company law by failing to provide information on the business risks of climate change and plans to address those risks.
In a move that could prove to be precedent, the A$57 billion ($43 billion) fund settled the case in 2020, with the rest agreeing to return its portfolio to net-zero by 2050. He has also announced that he will monitor the results and report on his climate-related progress and encourages his investee companies to disclose climate-related risks, in line with the recommendations of the global Task Force on Climate-Related Financial Disclosures (TCFD).
Barnden also acts for Guy and Kim Abrahams, shareholders of the Commonwealth Bank of Australia. They are demanding documents from the bank to determine whether its lending practices are in line with the Paris Climate Agreement and whether it conducts an environmental, social and economic impact assessment of several fossil fuel projects.
But Barnden says, “The law can only do so much.”
He points to the company’s victory in the well-known case Sharma vs Environment Ministerin which Barnden represented 16-year-old Anjali Sharma and seven other teenagers in a class action lawsuit, arguing that the country’s top environmental legislature has a duty of care not to harm Australia’s youth and children when approving coal mines or expanding coal mining projects.
Barnden initially won, but the decision was overturned on appeal by the entire federal court chamber – partly because the court ruled that the matter was a political one for elected officials to decide. Courts prefer to leave policy decisions to politicians and voters, Barnden said.
“We have reached the limits of the law.”
Since then, Australia’s elected officials have promised to enact policies to tackle climate change. Last month Labor Party leader Anthony Albanese ousted incumbent Prime Minister Scott Morrison in Australia’s national election. The new prime minister has promised to cut emissions by 43% by 2030, compared with the 26% to 28% cut offered by the previous Conservative government.
The Prime Minister also said he plans to have four-fifths of the electricity going through Australia’s power grid to be renewable by 2030 and has pledged to spend A$20 billion to upgrade the transmission grid to bring renewable energy from windy or sunny locations in rural and regional Australia among the most populous cities in the country.
Significantly, Australians also elected six climate activist independent MPs in formerly wealthy, Conservative constituencies – a sign of the increasing importance of climate change for elections.
Saving the planet through litigation
Australia is the second most active jurisdiction in climate disputes globally, with 115 cases filed as of May 2021, according to the London School of Economics’ Grantham Research Institute on Climate Change. Only the US is more active with 1,387 cases.
And thanks in part to barnden, the country is becoming a prime jurisdiction for testing cases with far-reaching policy implications for the environment at a time when climate change litigation is spreading around the world.
Prior to founding Equity Generation Lawyers in 2019, Barnden was an associate at Maurice Blackburn Lawyer’s class action law firm. He then joined Environmental Justice Australia, a municipal legal service that, as the name suggests, focused on climate.
“I anticipated a greater need for investors and others affected by the climate crisis to have good legal representation in relation to climate risks, and also the need for advisory work for a range of interested parties,” he said.
And it makes sense that a lawyer in Australia would take care of it. The country is doubly threatened by climate change – more than most other countries. It is also more vulnerable to the physical effects of climate change, as demonstrated by the devastating bushfires of 2019-20 and this year’s flooding along the east coast.
The country’s late start in the transition to a low-carbon economy has increased transition risk for several sectors. Australia has a high per capita emissions profile, particularly in the energy sector, and is “late” in transitioning the transport sector due to a lack of infrastructure to support electric vehicles, Barnden said. Additionally, among the top 100 public companies that export fossil fuels such as coal, oil and gas, there is an overweight of companies.
But how seriously do companies take lawsuits brought against them by Barnden and his team at Equity Generation Lawyers? The typical reaction, Barnden says, is that they say they did nothing wrong and then vigorously fight back.
“They’re going to hire top-notch city lawyers to throw it all at us,” he said. “Everyone is in the trenches from day one.”
Many of the firm’s cases are volunteer, while others are funded by donations. For example, more than 5,000 people have contributed between $20 and $50 to fund the Sharma case.
But the firm’s limited resources compared to those of the law firms it faces have not limited its impact.
“If you look at the number of cases we’ve handled and the number of attorneys in our profile, you might conclude that we’re quite a smart, agile and hardworking team for the amount of resources we have , achieved a lot of good results,” Barnden said.
The environmental attorney said he takes on most of his cases to represent and pursue clients’ rights. But there are additional benefits, he adds, like sending a message about climate change.
And that message has grown stronger over time. Today, interest in his practice extends to other law firms that report on his cases, conduct analyzes and advise their clients.
“It’s certainly a way for governments and businesses to understand for themselves the limits of what they can and cannot do and where wrongdoing can occur,” Barnden said.