“International negotiations are not advancing, hence presenting litigation is an attractive path despite some drawbacks,” Justice Preston said.
Litigation was “unlikely to have a great overall effect on climate change” but “environmental groups and affected individuals and groups have taken up the challenge”.
Issues related to climate change had been litigated “more or less successfully” since 1994, Justice Preston said.
“It is only in recent years that climate change as a phenomenon has been more widely accepted by the courts, although there are still cases where the science of climate change is challenged.
“Taking climate change into account when deciding upon the merits of a development proposal is another new development.”
He cited five decisions last year alone, four involving the NSW minister for planning, on matters such as alleged failure to consider coastal hazards, including sea-level rise.
“More commonly, the statute does not expressly state the matters relating to climate change and it is necessary to ascertain, from the subject matter, scope and purpose of the statute, whether the statute impliedly requires consideration of matters relating to climate change.”
Misrepresentation as to the environmental credentials of goods and services could be addressed via tort law or the Trade Practices Act, he said.
The chief judge noted the Australian Competition and Consumer Commission had been active in scrutinising such claims and had taken action against household goods manufacturer De Longhi, tyre company Goodyear and car maker Saab.
De Longhi amended its advertising while Goodyear undertook to offer partial refunds to those who relied on unsubstantiated environmental claims.
The commission took General Motors to court over advertising that claimed “every Saab is green” and that people should “switch to carbon-neutral motoring”.
Breaches of the Trade Practices Act were alleged but an agreement was reached for GM to train its marketing staff and plant 12,580 trees.
Justice Preston said that “constitutions or statutes might provide for certain rights, such as a right to life, or right to a healthy environment”.
He also made a prediction: “There has not yet been litigation focused on greenhouse gas emission or climate change, although there is the potential” as governments were likely to use legislation to tackle climate change.
He said there was value even in unsuccessful litigation because “matters that are important to communities are being brought to the attention of governments, and hence act as a catalyst for executive action”.