Rosa O’Hara is a staff writer at Noema Magazine. She previously worked as a reporter in Indonesia.
A little more than 200 miles north and inland from Sydney lies an almost mythical stretch of fertile Australian land known as the Liverpool Plains. Australia might be a land of deserts and red earth, but the soil here on the plains is unusually dark in color, almost black, and retains water better than elsewhere, making it exceptional for farming. Wheat from these plains goes to Italy to be made into hand-rolled pasta, and the central shire of Gunnedah (“place of white stones” in the local Aboriginal language) markets itself as the “koala capital of the world.”
The town’s most-celebrated icon isn’t wheat or koalas, however — it’s the early 20th-century poet Dorothea Mackellar. Around 1904, Mackellar wrote an ode to her family’s farm while she was in England, feeling homesick. The poem’s most famous verse — “I love a sunburnt country / A land of sweeping plains, / Of ragged mountain ranges, / Of droughts and flooding rains.” — is a beloved, unofficial national anthem for Australians.
But for decades, those sweeping plains and fertile black soils have been dug up by mining companies going after a vast deposit of coal and natural gas that lies underground. Six coal mines already surround the towns in the area, filling the air with coal dust and the screech of freight trains that run through the night, carrying coal to the coast to be loaded on ships and exported.
Less than a mile away from the Mackellar homestead, a pastoral paradise evoked in one of Australia’s most beloved songs, another mine is in the works. The Vickery Extension Project was initially approved seven years ago, but the owner, Whitehaven Coal, submitted a plan to dramatically increase the scope of the project last year. None of the coal will be used domestically. As one local resident lamented at the time to the Guardian, the area would “essentially be hemmed in from all sides by large coal mines. It will no longer be a farming community in any sense, but a coal mining service center. … Families have left, and the social fabric of the community is being torn apart.”
Last September, eight teenagers filed a case with Australia’s highest court against the federal minister for the environment, Sussan Ley, in relation to her choice to either approve or deny the Vickery extension. The lead applicant for the case was 16-year-old Anj Sharma, who helped organize a school strike for climate inspired by Greta Thunberg in 2019. Because the applicants were minors, an 86-year-old Catholic nun, Sister Brigid Arthur, stepped in as the legal representative for the children. Their lawyers made an argument that has become more common in climate-related cases over the past several years: that the minister had a “duty of care” to protect the health and future of children in the nation, a duty she would be shirking by opening a new coal mine that would produce 10 million metric tons of coal a year and, once burned, spew 100 million metric tons of carbon dioxide into the atmosphere, a fifth of Australia’s annual emissions.
Sharma and her co-applicants won the case after a four-day trial in March. The mine created enough of a “risk of death” that the government minister had a duty of care. The judge gave a striking summary in his ruling: “The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience — quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper — all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain.”
The case is one among a broad global upswell of legal battles against the companies and governments responsible for global warming. Nearly 2,000 are currently underway around the world, according to a tracking project by the Sabin Center at Columbia University.
“Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain.”
One of the first watershed climate justice cases is known as the Urgenda case: In 2019, the Dutch Supreme Court upheld a ruling in favor of the plaintiffs who argued that the government of the Netherlands is legally responsible for the harmful effects of climate change on its citizens. The Dutch government started closing coal mines after the ruling. “A deal is a deal,” a member of the Netherland’s Democrats 66 party told a local broadcaster following the decision. “We have to comply with the judge’s ruling. The Netherlands is a constitutional state.” If it fails to comply, billions of euros in fines could ensue.
That decision inspired the activist group Milieudefensie and environmental lawyer Roger Cox to sue one of the biggest global emitters of fossil fuels in 2019: Royal Dutch Shell. Seventeen thousand Dutch citizens and a number of environmental organizations acted as co-plaintiffs, and Cox — who wrote a book in 2012 called “Revolution Justified” about using the law against corporations to curb climate emissions — won the case. The ruling (pending appeal) will force the company to curb emissions by 45% from 2019 levels by 2030. The emissions include those created directly and indirectly from Shell’s operations — not only Shell itself, but also its customers. Shell operates in 70 countries across the world, and its emissions in 2019 were nearly 1.7 billion tons of carbon dioxide, level with Russia, the world’s fourth-largest emitter.
“This is a turning point in history,” Cox said later. “This case is unique because it is the first time a judge has ordered a large polluting company to comply with the Paris climate agreement.” Without the Urgenda case establishing the precedent of a nation being held responsible for climate change, he told reporters after the ruling, it wouldn’t have been possible to hold a company responsible.
More than half the global warming-related cases abroad, in the year between May 2020 and May 2021, resulted in rulings against emitting companies and countries. This hasn’t been the case in the U.S., the world’s second-largest emitter of greenhouse gases. In the U.S., the idea of duty of care doesn’t apply in the same way. Here, corporations are required to make decisions according to the best available knowledge and the interests of officers and stockholders. America doesn’t have the same laws related to human rights as Europe does, which the Urgenda and Milieudefensie cases relied on.
Three of the most prominent climate change cases in the United States have all been dismissed: a case seeking emissions caps for electricity companies in 2011; the Alaskan Native village of Kivalina’s suit against energy companies blaming them for the melting of Arctic sea ice in 2013; and New York City’s attempt to sue several large oil companies for climate-related injuries earlier this year. All three argued the energy companies were acting as nuisances — that is, that the companies were impinging on citizens’ legal rights — but were dismissed because the claims were “preempted” or “displaced” by the federal Clean Air Act. This means, in essence, that the court found the correct audience for these claims is the U.S. Congress, and that the emission of carbon dioxide into the atmosphere is a legal activity to be regulated by Congress and the Environmental Protection Agency, not by courts.
However, a recent case in the U.K. accusing BP of fraud and “greenwashing” forced the company to take down advertisements claiming it was low-carbon. Oil and gas companies operating in the U.S. are already taking note; as Joana Setzer, a climate researcher at the London School of Economics and the co-author of a recent report on climate litigation, told Noema: “The scrutiny has become tighter and risk mitigation has already changed the behavior of these companies.”
“Litigation is a last resort.”
There are other ways to force governments, people and organizations into climate-friendly actions. Law may not, in fact, be the best way — especially in the United States. As Michael Burger, the executive director of the Sabin Center for Climate Change Law at Columbia University and a lawyer acting on behalf of plaintiffs against oil companies in American cases, told Noema: “As in many areas of life, litigation is a last resort. People go to court when other systems and other relationships fail. … Governments, private actors and corporations are failing to address the scale, scope and immediacy of the climate crisis.”
Back in May, when Anj Sharma and her co-applicants won their case against the Australian environment minister, the judge did not, in fact, issue an injunction that would forever halt the mine, as the children’s lawyers had requested. The ruling only established that the minister must consider the effects of climate change on children before deciding on approving the mine extension. The government has until the end of next month to determine whether to allow it to go ahead.
“Isn’t it obvious that the government should be protecting children and their future?” Setzer wondered when I talked to her. But as Burger noted, the law is a last resort. Something is broken if children are going to court against their own governments to protect their futures. And even litigation has its limits. The coal mine Sharma and her peers fought against, the one on the doorstep of Australia’s most famous rural landscapes, may just get approved anyway, if the company manages to convince the government it has done enough to offset the environmental destruction of its activities.
But “duty of care” is an important precedent, the first of its kind in Australia. It’s a foundation upon which, like the Urgenda case in the Netherlands, other efforts to halt greenhouse gas emissions can be built.
