Emitters beware: you’re liable for damage to future generations

Changing community attitudes to climate change are being seen in decisions now being made by the courts, according to new climate change specialist group Equator Alliance.
Equator Alliance representative Simon Harrison, whose law firm Herbert Geer is part of the four-firm consultancy group, said the emerging concept of inter-generational liability could place thousands of Australian businesses at risk of damages claims over the future harm caused by greenhouse gas emissions.
Mr Harrison said inter-generational liability claims were a growing international trend that could open the floodgates to a raft of class actions against mining, infrastructure and transport companies.
“Until recently, companies could only be held liable for a direct negative impact they may have had on an individual or organisation.
“However, under inter-generational liability claims, potential class actions that do not involve immediate injuries being suffered, but instead relate to future injuries by someone who has not even been born yet, could now in theory be brought against companies.”
Inter-generational claims are being brought successfully in every part of the world. As recently as two weeks ago, the US Appeals Court reinstated Global Warming Lawsuits against several large utilities, with the Connecticut Attorney General Richard Blumenthal saying, “this ruling restoring our legal action breathes new life into our fight against greenhouse gas polluters and changes the legal landscape to impose responsibility where it belongs”.
The Equator Alliance, which includes companies specialising in climate change services – Herbert Geer, BDO Kendalls, UniQuest and AARC – assists organisations to forecast, manage and comply with all legislative, business and customer demands related to climate change.
Mr Harrison said many Australian companies were not prepared for looming reporting and legislative requirements, let alone the potential legal risks and steps needed to avoid inter-generational liability claims.
However, if these companies took early steps to deal with potential liabilities, it would be possible to implement strategies now that would reduce future risks in this area.
Dylan Byrne, a partner at BDO Kendalls – also a member of Equator Alliance, said under the National Greenhouse and Energy Reporting (NGER) Act 2007, organisations that exceeded specified emission thresholds were required to provide full reports on their energy consumption, production and greenhouse gas emissions by October 31, 2009.
“Many mining and other high energy users still need to establish the necessary procedures to measure and report emissions and energy usage,” Mr Byrne said.
Mr Byrne said companies needed to adopt a holistic, or systems, approach to identify and manage the impacts of carbon emissions, trading and sustainability, while also making the most of potential carbon trading opportunities.
“By reducing emissions now, via carbon offsets, abatements or operational improvements, businesses can benefit from lower compliance costs and maximise economic and environmental gains,” he said.
Mr Harrison said court cases involving inter-generational liability had been appearing in Australia’s planning and environment courts and land tribunals for the past three years.
The New South Wales Land and Environment Court handed down a landmark decision in Gray vs The Minister for Planning and Ors (2006) finding that the environmental assessment of a new coalmine was required to assess the future impacts of climate change in terms of the burning of the mined coal.
The court found that principles such as inter-generational equity were required to be considered under the Environmental Planning and Assessment Act 1979 when assessing the new mine.

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