Note:  Chief Judge of the Land and Environment Court of the state of New South Wales, Australia. This article is based on a paper presented to the workshop “Beyond a Carbon Price: A Framework for Climate Change Regulation in Australia”, 11–12 August 2011, University of Melbourne. I gratefully acknowledge the assistance of Kylie Wilson in the research and writing of this article.
Abstract: In recent years, the number of court cases around the world raising the issue of climate change has increased dramatically, especially in jurisdictions that have not yet adopted effective national responses to climate change, such as Australia and the United States. In these countries, litigation provides an alternative path to encourage mitigation of the causes and adaptation to the effects of climate change. In Australia, much of the litigation, particularly the early climate change cases, has taken place in state courts or administrative tribunals, and has focused on applying existing legislation to require government decision-makers to consider future climate-associated risks in planning decisions. The influence of these cases have been wide reaching, leading to the revision or formulation of government policies on mining and coastal management. Other cases, particularly within federal courts, have been less successful, but have nonetheless highlighted areas in need of law reform. In the United States, recent high-profile cases targeting major sources of greenhouse gas emissions including power stations have raised novel arguments based on common law public nuisance grounds and the public trust doctrine. This article examines the extent to which climate change litigation, mainly in Australia, but also in the United States, has influenced government decision-makers, legislatures, and polluters to curb emissions and adapt to the impacts of climate change.