Claims major projects are being delayed by environmental 'lawfare' dismissed in new research.

Extract from The Guardian

Australian politics

GreenLaw study finds public interest litigants are not abusing court processes to disrupt developments

Lisa Cox

Fri 19 Jun 2020 03.30 AEST Last modified on Fri 19 Jun 2020 03.37 AEST

Sussan Ley says ‘lawfare’ can be crippling to business. Research by GreenLaw found environmental cases make up a ‘negligible portion’ of the federal court’s workload. Photograph: Mick Tsikas/AAP

Claims that major developments are being regularly held up because of legal challenges to environmental approvals have been dismissed in new research.
The research by GreenLaw, a research and policy group run by law students at the Australian National University, conducted an empirical review of public interest litigation in the federal court on environmental matters over the past decade.
In a submission to the review of national environment laws, the group said environmental cases made up a “negligible portion” of the federal court’s workload, and their study found “strong evidence that public interest litigants are not abusing court processes to disrupt and delay proponents”.
Government ministers, including the resources minister, Keith Pitt, have repeatedly said that legal challenges are unreasonably delaying major projects.

“It shouldn’t be up to cashed-up activists to be able to hold up particular projects for a decade, simply because they can afford to,” Pitt said in April.

In 2016, when the Turnbull government planned to change the law to limit the right of environmental groups to challenge developments in court, the then resources minister, Matt Canavan, said activists “seek to subvert our legal system for political ends”.
“If these disruption tactics aren’t stopped they will cause economic damage to our country through lost ­investment and jobs,” Canavan said.
In September Canavan urged the Queensland premier, Annastacia Palaszczuk, to step in to fix the “green lawfare debacle” over the proposed expansion of the New Acland coalmine.
Earlier this year the environment minister, Sussan Ley, said the “lawfare that is such a part of today’s environmental landscape can be crippling to ­business as well as to environmental organisations”.
The GreenLaw study, to be published in the Environmental Law and Planning Journal, examined the number of public interest cases involving the Environment Protection and Biodiversity Conservation Act or the environment minister, to test whether litigants were flooding the courts with environmental challenges.

GreenLaw found 32 cases between 2009 and 2019, of which 19 went to judgment and 13 were discontinued.
“This amounts to approximately 3.2 public interest cases filed per year, a negligible portion of both the Federal Court’s caseload and the total annual number of decisions made by the Environment Department,” the group said in a submission to the EPBC Act review.
“Our review found strong evidence that public interest litigants are not abusing court processes to disrupt and delay proponents.”
The EPBC Act is under a once-in-a-decade review by the former competition watchdog chair Graeme Samuel.
An interim report is due at the end of this month, but the government has indicated a desire to speed up assessment processes.
Some critics of the act have focused on environmental organisations that have taken court action over decisions on high-profile projects such as Adani’s Carmichael mine.
But the department’s own annual report shows the number of legal challenges to EPBC decisions is low, with only six challenges to 2,161 decisions listed in 2018-19. Some of these were cases taken by private individuals for reasons unrelated to environmental conservation.
A 2015 paper co-authored by the legal academics Andrew Macintosh, Heather Roberts and Amy Constable examined environmental citizen suits for the period from 2000 to 2015 and found they were “seldom taken and rarely won”.
GreenLaw’s study found the number of public interest environmental cases was 0.06% of the federal court’s average yearly workload and that 26% were successful, which they said was comparable to success rates for cases brought to the Administrative Appeals Tribunal.
When they looked only at cases brought by environmental NGOs, not individuals, they found 45% were successful.
“This demonstrates that public interest litigants are bringing genuine cases with the intention of ensuring proper government decision-making and accountability,” the submission states.
They also examined whether a high number of litigants were filing for injunctions that would temporarily stop a development or project from proceeding. They found 8% of cases involving NGOs sought an injunction, and 16.7% of all cases.
The director of Melbourne University’s centre for resources, energy and environmental law, Lee Godden, said the outcomes of GreenLaw’s research were consistent with several other studies that showed legal challenges to EPBC decisions accounted for a very small volume of the federal court’s workload.

“Again, the evidence indicates that such litigation is rarely vexatious and that open standing provisions form an important democratic safeguard,” Godden said.
She said the EPBC Act gave only a small window for citizen participation in relation to nationally significant environmental matters and that recent bushfire appeals showed Australians were aware that endangered species and ecosystems held special value.
“It is important not to further limit access to justice for public interest litigation in an era where across the world, the rule of law is being tested not by citizens engaged in lawfare but by the accrual of executive government power,” Godden said.
Annika Reynolds, one of the study authors, said the goal of the study was to bring empirical research up to date at a time when so-called “lawfare” was the subject of political commentary.
“What we found was there was no evidence of vexatious proceedings, or abuse of court processes and in fact what we found was that since 2015, public interest litigants have actually been more successful in court procedures than historically,” she said.

“One of our big discussion points is the rate of public interest litigation is so low that we have real concerns that the public is actually not able to be substantially involved in the vast majority of decisions.”