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 if Australia’s recently elected government adheres to its promise to reduce carbon emissions and increase the use of renewable energy, David Barnden, the nation’s most active climate litigator and one of the world’s most well-known environmental lawyers, expects to remain busy for many years to come.
“We’re going to be faced with a situation where there’s going to be a lot of suffering, a lot of loss, a lot of damage to lives and livelihoods,” Melbourne-based Barnden said. “And there’s going to be people who want to use the court system to obtain compensation and redress for those losses and for where there’s been misconduct and legal wrongs.”
A growing appetite exists to not only prevent climate change and the problems it causes but also to put people back into the place they would have been otherwise, Barnden says. But he and his firm, Equity Generation Lawyers, have also been using the legal system to try to force governments and corporations to take more action to address the issue.
In 2018, he represented 25-year-old pension fund member Mark McVeigh in an action against the Rest superannuation fund, arguing the fund violated company law by failing to provide information related to climate change business risks and any plans to address those risks.
In a move that may prove precedent-setting, the A$57 billion ($43 billion) fund settled the case in 2020, with Rest agreeing to align its portfolio to net-zero by 2050. It has also said it will monitor and report outcomes on its climate-related progress and encourage its investee companies to disclose climate-related risk, in line with recommendations made by the global Task Force on Climate-Related Financial Disclosures (TCFD).
Barnden is also acting for Guy and Kim Abrahams, shareholders in the Commonwealth Bank of Australia. They are seeking disclosure of documents from the bank to see whether its lending practices are in accordance with the Paris Agreement on climate change and if it is carrying out an assessment of the environmental, social and economic impacts of several fossil fuel projects.
But Barnden says “the law can only do so much.”
He points to the firm’s win in the case known as Sharma v Minister for the Environment, in which Barnden represented 16-year-old Anjali Sharma and seven other teenagers in a class-action lawsuit, arguing that the country’s top environment lawmaker had a duty of care to avoid harming Australia’s youth and children when approving coal mines or coal mining extension projects.
Barnden initially won, but the decision was overturned on appeal by the full bench of the Federal Court—in part because the court ruled it was a policy matter that should be decided by elected officials. Courts prefer to leave policy and political decisions to politicians and voters, Barnden said.
“We came up against the limits of the law.”
Since then, Australia’s elected officials have promised to enact policies to help fight climate change. Last month, Labour Party leader Anthony Albanese unseated incumbent prime minister Scott Morrison in Australia’s national elections. The new Prime Minister has promised to reduce emissions by 43% by 2030 compared with the 26% to 28% cut that had been offered by the previous, conservative government.
The Prime Minister also said he plans to have four-fifths of the power traveling along Australia’s power grid to be renewable by 2030 and has pledged to spend A$20 billion to upgrade the transmission network to get renewable energy from windy or sunny sites in rural and regional Australia to the nation’s more populous cities.
Significantly, Australians also elected six climate activist independent Members of Parliament in previously wealthy, conservative electoral districts—a sign of the increasing electoral importance of climate change.
Saving the Planet Through Litigation
Australia is the second most active climate litigation jurisdiction in the world, with 115 cases filed through May 2021, according to data published by the London School of Economics’ Grantham Research Institute on Climate Change. Only the U.S., with 1,387 cases, is more active.
And due in part to Barnden, the country is becoming a prime jurisdiction for test cases with broad policy implications for the environment at a time when climate change litigation has been spreading around the world.
Before starting Equity Generation Lawyers in 2019, Barnden worked as an associate at plaintiff class action law firm Maurice Blackburn Lawyer. He then joined Environmental Justice Australia, a community legal service that, as its name suggests, focused on climate.
“I anticipated a greater need for investors and other people impacted by the climate crisis to have some good legal representation around climate risk and also the need for advice work for a number of interested parties as well,” he said.
And it makes sense that a lawyer in Australia would take up the cause. The country faces a double threat from climate change—above and beyond most other countries. It is also more vulnerable to the physical effects of climate change, as was demonstrated by the devastating bushfires in 2019-20, and by the floods along the east coast this year.
The nation’s delayed start to transitioning to a low-carbon economy has heightened the transition risk to several sectors. Australia has a high per-capita emissions profile, particularly in the energy sector, and is “late to the party” in transitioning the transport sector, with a lack of infrastructure to support electric vehicles, Barnden said. Additionally, there is a preponderance of companies among the top 100 public corporations exporting fossil fuels such as coal, oil and gas.
But how seriously do companies take lawsuits filed against them by Barnden and his team at Equity Generation Lawyers? The typical reaction, says Barnden, is for them to say they’ve done nothing wrong, and then fight the action vigorously.
“They’ll engage top‑end town lawyers to throw everything at us,” he said. “Everyone’s in the trenches from day one.”
Many of the firm’s cases are pro bono, while others are funded by donations. More than 5,000 people chipped in amounts ranging between $20 and $50 to help fund the Sharma case, for example.
But the firm’s limited resources relative to those of the law firms it faces have not limited its impact.
“You might look at the number of cases we run and the number of lawyers on our profile and come to the conclusion that we’re a pretty smart, agile, hardworking team that gets a lot of good results for the amount of resources we have,” Barnden said.
The environmental advocate said he takes on most of his cases to represent and prosecute the rights of clients. But there are collateral benefits, he adds, such as sending a message on climate change.
And that message has become more powerful with time. Today, the degree of interest in what he does extends to other law firms, which report on his cases, provide analysis and advise their clients.
“It certainly is a way for governments and corporates to themselves understand the limits of what they can and can’t do and where misconduct may arise,” Barnden said.