The politics of public interest environmental litigation: lawfare in Australia

In August 2015, the Australian government moved to restrict the capacity of environmental groups to challenge major developments under Commonwealth law in direct response to a successful appeal against the approval of a controversial new coal mine. According to the government, this litigation was part of an illegitimate coordinated strategy amongst environmental groups to use ‘green lawfare’ to ‘disrupt and delay key projects and infrastructure’ and to increase investor risk. The Attorney-General further characterised this case as ‘vigilante litigation by people … who have no legitimate interest other than to prosecute a political vendetta against development and bring massive developments … to a standstill.’ This characterisation is significant given that the litigation was settled by consent orders under which the Environment Minister accepted he had breached the Environmental Protection and Biodiversity Conservation (EPBC) Act 1999 by failing to consider conservation advice provided by the Department of Environment on the impact of the proposed mine on two vulnerable species. In this context, it is concerning that the government is now attempting to limit standing under the EPBC Act to those ‘persons aggrieved by the decision.’ By doing so, the government would not only seriously limit the scope for public interest litigation in defence of the environment, it would also curtail the rule of law by restricting the public’s capacity to challenge decisions made in breach of the law. In this paper, I argue that underlying this case, and the subsequent proposed legislative change, is a widening divide between the Australian government’s commitment to encouraging large scale development, particularly from the resource extraction industry, and the public’s growing concern with the environmental impact of these projects. I will also outline evidence demonstrating the community’s growing expectation that they will have the right to participate in decision making that affects the environment. Given the growing international acceptance of this right, as outlined in Principle 10 and the Aarhus Convention, the Australian government’s attempts to shut down community access to environmental adjudication is out of step with emerging international norms.