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Climate change and the law

Our climate is changing rapidly. It will have significant impacts on peoples' lives. Severe weather events will cause damage to homes and businesses and sadly, people displacement and loss of life. This article looks at the legal implications of our changing climate.

What are the legal issues involved in climate change?

  1. How governments regulate to address climate change risks. This is in the background of international legal frameworks such as the United Nations Framework Convention on Climate Change (UNFCCC) Kyoto Protocol, Paris Agreement.

  2. Contracting parties will need to consider weather events as a realistic scenario and how to manage this risk.

  3. Supply chains will need to be more resilient to survive. Companies may opt to engage a panel of suppliers so if one is unavailable to supply, they are able to continue to deliver consistently, particularly if there is a peak in demand.

  4. People displacement. This will affect workforces across the globe and supply chains because people will be unable to attend work. Entire industries and economies will be affected.

    1. The human cost of climate change is huge. People risk losing their homes, livelihoods and sadly the loss of life. There will be a humanitarian need for shelter, safety, food, work and education. As a society, we have a moral responsibility to proactively look after other people. The flow-on legal effects are:

      1. How social welfare is addressed while giving people the dignity of work and the incentives to rebuild in a changing world.

      2. Privacy- To address the risk of identification documents being lost, policy advisors may move towards a biometrics model, which must be balanced against privacy issues.

      3. Migration- for safety those who can, will migrate. This may lead to a mass migration of climate refugees. Governments will need a system to efficiently administer.

      4. Wills and estates law- to address the administration of the deceased's assets, which may too be affected by the severe weather event, along with the beneficiaries under the will.

      5. Insurance- insurers will have to price in the risk of severe weather events to their policies. This may lead to under-insurance. Conversely, the risk may be top of mind and lead to a rise in demand for insurance services.

  5. The impact of climate change on indigenous peoples and their sacred sites can not be understated. Place is an important part of identity and kinship so displacement has the effect of breaking up the very social fabric, which is essential for their continuation. It is the author's opinion that indigenous peoples should be proactively involved in policy decisions on how to care for the land, skies and seas as indigenous peoples have lived sustainably for generations.

  6. To manage a climate emergency, governments may be more inclined towards declaring a state of emergency or disaster. Optimistically, this may create opportunities for public-private partnerships, on the flip side, sadly it may necessitate the closing of businesses.

  7. Businesses which are unable to continue to trade will need to enter into liquidation. This will have a flow-on effect for their staff, creditors and the rest of the economy.

  8. Climate litigation:

    1. Fiduciary duties- Company directors, government officials and those with fiduciary obligations may be expected to take action to mitigate against climate risks by those who they are expected to serve or protect.

    2. Corporate governance- If a company fails to disclose climate risks to their shareholders, they may be exposed to legal liability under the Corporations Act. This moves it beyond reporting on climate matters as a matter of corporate social responsibility towards a financial risk which must be disclosed to investors.

    3. Common law principles of negligence, nuisance and trespass.

    4. Breaches of environmental protection legislation- unlike other areas of law, environmental protection cases are able to be brought by any person or organisation, not just the persons directly affected. For example, the Conservation Council of Western Australia commenced a proceeding seeking a review of a government decision to approve a major gas project by Woodside Petroleum.

  9. Disclosure requirements provide an incentive to be accountable to the community beyond corporate social responsibility.

As the climate and regulatory framework evolve, we will keep you updated. Should you have any questions, please do not hesitate to contact Legal Enablers on (03) 8691 3128.

Kind regards, Caroline Mense

Principal Lawyer at Legal Enablers Ph: (03) 8691 3128

E: Level 14, 330 Collins Street Mebourne VIC 3000


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