Risks in corporate climate litigation

Back in late 2023, Simon Munkara, Tiwi Island Traditional Owner, sought and was granted an urgent injunction preventing Santos from commencing pipeline work on the $5.6 billion Barossa gas project. 

The Traditional Owners argued that the pipeline construction would create significant new environmental risk, or significantly increase the impact of risk, that was not included in the environmental plan for the project. These were risks to intangible cultural heritage and tangible culture heritage. 

Justice Charlesworth dismissed the claim in early 2024. Her Honour was highly critical of some of the expert evidence and lawyers in the case. 

Her Honour expressed concern there had been ‘a form of subtle coaching’ by the Environmental Defenders’ Office (EDO) and expert witnesses. Her Honour also expressed concern that the cultural mapping exercise and related opinions were ‘so lacking in integrity’ that they involved ‘confection’ or ‘construction’. 

Santos is now pursuing the EDO for costs. This includes through seeking subpoenas the present documents against the EDO, expert witnesses, and other activist organisations associated with the ‘Stop Barossa Gas’ campaign. 

This case is an example of a corporation ‘fighting back’ against those who are seeking to hold them accountable for climate change through litigation. 

In Australia, there is a rule that the losing party will usually pay the other party’s costs. This poses a significant risk to the existence public interest law firms and concerned citizens, especially when up against big corporates with big pockets. 

Will this case have a ‘chilling’ effect on climate litigation on Australia? It certainly already has had an impact on the landscape, but it will not signal the end of climate litigation in this country. It just stands the highlight the risks associated with these types of cases. 

Moreover, what will be especially interesting to follow in the future are those cases not necessarily motivated by ‘climate concerns’ but where climate change is affecting the ordinary course of business e.g. through loss profits, unperformable contracts, disrupted supply chains and damaged assets. 

Read more about the case here: https://law.app.unimelb.edu.au/climate-change/case.php?CaseID=987&browseChron=1