054 | 100
Matt Floro
Legal action for a safe climate

39 min 28 sec

Matt Floro is a Special Counsel advising on environmental, planning, climate change and administrative law at the Environmental Defenders Office (EDO). He has practised at the Victorian Department of Premier and Cabinet, Clayton Utz and Corrs Chambers Westgarth. Since joining EDO, Floro led several groundbreaking cases, including the Rocky Hill climate change litigation, the Bushfire Survivors climate action, and major water litigation involving the upper Murray-Darling Basin. In 2022, he received the Mahla Pearlman AO Award for Australian Young Environmental Lawyer of the Year and the Legal and Professional Category Winner at the Most Influential Asian-Australian Awards. Floro is currently National President of National Environmental Law Association.

Benjamin Law writes books, TV screenplays, columns, essays and feature journalism. His work has appeared in 50+ publications — including The Monthly, Frankie, Good Weekend, The Guardian and Australian Financial Review. His books include The Family Law (2010, Black Inc) and Gaysia: Adventures in the Queer East (2012, Black Inc) — both nominated for Australian Book Industry Awards. Law authored a 2017 Quarterly Essay, Moral Panic 101: Equality, Acceptance and the Safe Schools Scandal, and edited the anthology Growing Up Queer in Australia (2019, Black Inc). He speaks out on the topics of diversity, equality, journalism and more.

The Environmental Defenders Office has led climate change litigation in Australia since 1994. Special counsel Matt Floro conducts some of the office’s most high-profile cases including the breakthrough Rocky Hill case, resulting in a proposed coal mine being rejected due to its potential impact on the climate – an Australian first.

Law is a tool to order society and of course, order the environment. So, how can we change the law in legitimate ways to better serve the environment, to better serve our society?

– Matt Floro

Climate litigation has expanded so much in the last decade, and the jurisdiction with the highest number of climate cases is the US … but people may not realise that the second highest number of climate cases is actually here in Australia.

– Matt Floro

Young people are a fantastic asset, and we will rely on them for a lot of the legwork in terms of the transition that’s needed.

– Matt Floro

[The Rocky Hill case] was the first time in Australia, possibly the world, where a court has refused consent to a fossil fuel development, partly on the basis of climate.

– Matt Floro

I think we’re moving away from seeing the law in a purely positivist conception to a more realist conception, more normative conception of the law, where our emotions, our feelings about the law as a form of social ordering can be harnessed into reform.

– Matt Floro

Law is a tool to order society and of course, order the environment. So, how can we change the law in legitimate ways to better serve the environment, to better serve our society?

– Matt Floro

Benjamin Law

Good morning, everyone, and welcome to 100 Climate Conversations. My name is Benjamin Law and it’s such a privilege to be gathered here with you today on the unceded lands of the Gadigal. First Nations people on this continent have been sharing knowledge for tens of thousands of years, and together these nations constitute the oldest continuing civilisation the planet has ever seen. First Nations people here are the world’s first scientists, engineers, agriculturalists, mathematicians, and they mastered how to live sustainably on this very fragile continent, a feat that we still struggle with now. So, we’re grateful to Elders, past and present that we can continue sharing knowledge here on what is and what will always be Aboriginal land.

Today is number 54 of 100 conversations happening here every Friday at the Powerhouse museum and online, and it presents 100 visionary Australians taking positive action to respond to the most critical issue of our time: climate change. We’re recording this live in the Powerhouse museum, and before it was home to the museum, it was the Ultimo Power Station. It was built in 1899. It supplied coal powered electricity to the Sydney tram system right into the 1960s. So, it’s in the context of this fossil fuel artefact that we shift our focus to the innovations of the net zero revolution.

Our guest today is a special counsel advising on environmental planning, climate change and administrative law at the Environmental Defenders Office, also known as EDO. Since joining EDO, he’s led several ground-breaking cases, including the Rocky Hill climate change litigation, the Bushfire Survivors Climate Action and major water litigation involving the Upper Murray-Darling Basin. In 2022, he received the Mahla Pearlman AO Award for Australian Young Environmental Lawyer of the Year and the Legal and Professional category winner at the Most influential Asian Australian Awards. And we’re so thrilled to have him join us here today. Please join me in welcoming Matt Floro.

Hey, Matt. I’m so thrilled that you could join us today. And I’m going to take it way back and I’m going to ask a very broad question, which is, when did climate change actually come into your consciousness? When did it first come onto your radar?

Matt Floro

Thanks, Benjamin. It’s a delight to be here. I too acknowledge the Traditional Owners of this land, the Gadigal people, and pay my respects to Elders past, present and future. I grew up in Western Sydney on a farm on the outskirts of the city. My parents came from Manilla in the Philippines and wanted a new life and away from the hustle and bustle of Manilla, which is a massive metropolis.

They bought a farm in Berkshire Park, which is near Windsor. And growing up there, every year, almost every year, there would be natural disasters around and even encroaching onto our land. There would be bushfires probably about once every two to three years, floods around about that same frequency. Bushfires that would come and would get onto sort of the back end and the right-hand side of our property. And I noticed over time that those natural disasters were increasing in their severity, increasing in their frequency. One time the bushfires came so close to our house that the fire trucks came. Channel 9 came as well and interviewed me when I was trying to use the hose to ward off those flames. And it was quite a searing experience, literally and figuratively. And from then, I think I always knew that the natural world, as much as it was extremely beautiful, it also had an element of danger to it, and particularly with what humans were doing to it. That was a big concern for me.

BL

A lot of people in Australia have been the victims subject to natural disasters. What was different about you in thinking, actually this is something serious that’s about the changing climate? You know, a lot of people, even people living out in the country who are probably most vulnerable to climate change, don’t necessarily make the connection between what they’re experiencing and our contribution to climate change. What was different for you?

MF

The lived experience for me was in the summer, 40-to-45-degree days and in the winter down to minus five. So, for me, the extremes were quite apparent in Berkshire Park on our five-acre farm. I think that I’ve always had a sense of trying to make an impact and being an only child, I grew up wanting to do something a bit greater than just myself. Coming from an Asian background as well, coming from a background which wasn’t Indigenous to Australia but rather wanting to make a mark, I guess.

And when I started high school, my two favourite subjects were geography and English, and I originally wanted to go into a more scientific background, but I didn’t have the strength in science to do that or maths. I also thought about being an English teacher, but my mum being the typical Asian mum, said, ‘Oh, why don’t you do something that’s a bit more lucrative, that’ll actually keep food on the table, keep you well-fed,’ etc. And I thought, Okay, well, law could be an option for me. And that’s how I started to study law. Why I chose to study law and in studying law, I gravitated more towards environmental law, planning law subjects that focussed on geography, the environment, the law.

BL

It’s so great to hear you doing the good Asian thing and studying law, my parents would be envious. Let’s talk more about the EDO, because early in your law career you worked for numerous private firms and government before embracing your true passion for the environment and starting with the New South Wales Environmental Defenders Office. And to clarify, the New South Wales branch has since merged with most of the other state EDO’s, to form a National Environmental Defenders Office. To kick us off, can you tell us about the Environmental Defenders Office? Who are they? Who are you serving and what are you protecting?

MF

EDO started out 40 years ago as Edo New South Wales and it was co-founded by a group of fantastic environmental lawyers, many of whom have gone on to serve on the bench and in academia and business and in the law. And it was meant to be an independent charity that was focussed on public interest, environmental law, representing community to protect the environment.

Over time, various other EDO offices opened around the country in the capital cities and in Cairns as well, and they went through ebbs and flows in terms of funding and what they were able to do. But at the heart they were always focussed on serving the community. During the Abbott government, the former prime minister cut funding to all EDO’s which affected our funding base quite significantly, such that in due course there were discussions among the various EDO offices about a potential combination, a merger, and we merged about three years ago now. So, we have offices now in all the capital cities and Cairns as well, focusing on north Queensland and we’ve got about 110 staff or so.

So, we’re still focussed on serving the community at the grassroots level. But on top of that we have a focus on systemic change. So, changing the structures focussed on issues like climate, like biodiversity and water.

BL

We’ll hear more soon about the specific cases that EDO’s dealt with and the victories that it’s had. I wonder if I can ask you a philosophical question, because when it comes to the climate conversation or the 100 Climate Conversations that we’re having, I think it’s kind of obvious the roles that different parts of society play, like activists taking to the streets and marching for climate, conservationists doing their work, waste specialists coming up with innovative new ways to manage waste. What is the law’s responsibility when it comes to the environment? What role does the law play and lawyers play when it comes to protecting the natural world?

MF

There are different conceptions of law. There is a more positivist conception of law, which is the law is actually what’s just written down and that we all follow. There’s a more normative conception of the law, which is that the law should serve a social purpose. But my view of the law has always been more of the latter. So, law is a tool to order society and of course order the environment. So, how can we change the law in legitimate ways to better serve the environment, to better serve our society?

EDO’s always straddled both conceptions of law in that we are a pretty much a law firm, we’re a charity, we’re a community legal centre. So we need to advise our clients in a frank way, in a fearless way of what the law is right now. But we also need to conceive of the law as what it could be in five or 10 years. We have a common law system in Australia, a system that iterates over time, that changes with the expectations of society. So, the common law of today will look different to the common law five years from now, 10 years, 15 years. So, how can EDO play a constructive role in advising community clients as to how the law could shape over the next few years and decades.

BL

People who don’t necessarily operate within the realm of the law might be surprised thinking of lawyers, especially as some of the superheroes and gatekeepers, arguably who are preventing environmental damage from taking place. I mean, what ways can litigation – so taking a dispute to a court of law – contribute overall to taking action on climate? You know, is significant global action, for instance, on climate change even possible without climate litigation?

Climate litigation has expanded so much in the last decade, and the jurisdiction with the highest number of climate cases is the US … but people may not realise that the second highest number of climate cases is actually here in Australia.

– Matt Floro

MF

Climate litigation has expanded so much in the last decade, and the jurisdiction with the highest number of climate cases is the US, with more than 1,000 climate cases through the courts now and in the past. But people may not realise that the second highest number of climate cases is actually here in Australia.

BL

Wow. And what accounts for that? I mean if the US is so high and we are, what second highest, what’s going on with Australia or is there something about our idea of what constitutes climate justice contributing to that?

MF

And to be fair, there is a big gap. So, in the US it’s I think over a thousand cases of climate cases. In Australia it’s about around 100 mark. So, there is a big gap, but I think it’s a few factors.

So, we are traditionally quite a resources intensive economy like Canada, although Canada isn’t too high on the list. I don’t know why. Another thing is that litigation is a last resort. Our clients would prefer that governments made good laws in the first place rather than having to resort to costly litigation. And as Marian Wilkinson said in her interesting book, The Carbon Club, we’ve had more than a decade of inaction, so our community clients have been frustrated by the lack of action from governments at all levels, and they’ve taken it upon themselves to go to court to try to force governments, force proponents to do better in terms of climate.

BL

So, you’re special counsel at the EDO and you’ve taken carriage of several landmark cases, can you explain to us what is a special counsel and what responsibilities do you have when you take those actions?

MF

So, I started at EDO as a lawyer back in 2018 and then was promoted to senior lawyer and now special counsel. And recently I have been promoted to acting managing lawyer of the Safe Climate Team, focusing on human rights and coal. So, my day to day is quite varied. I’m also a carer for my mum. So, EDO is very good in terms of that flexibility for workers there.

My day to day might involve going to court. So, last week I was in court representing my client, the Bushfire Survivors for Climate Action, who are challenging the approval by the Independent Planning Commission of the Narrabri underground coal extension. So, my day could involve going to court, getting there quite early so that we can do any media if needed. We can brief the barristers and then see that hearing through for the day and then going home – sometimes long hours of course.

But my day could also involve, for example, speaking at various presentations. It could involve meeting clients regionally and in Sydney. It could involve training our young lawyers and our volunteers. We rely on a bevy of bright young students who just want to get involved. And also reading. So, making sure that we’re on top of what’s happening in this space.

BL

So, it sounds like you’re having a big community conversation as well as the work that you’re actually doing with the cases themselves.

MF

Yes.

BL

What are the main messages that you’re telling, I don’t know, especially younger people coming up in the legal fraternity. What do you most want to convey to them?

Young people are a fantastic asset, and we will rely on them for a lot of the legwork in terms of the transition that’s needed.

– Matt Floro

MF

I think that our young people are a fantastic asset, and we will rely on them for a lot of the legwork in terms of the transition that’s needed. They’re often quite despairing and they often experience what has been termed as solastalgia. So, a form of anxiety that is related to changes in space, changes in environment, in climate. And we often have to – we harness that energy, we harness that despair, and we encourage them to do their best when they’re working for EDO or for another likeminded organisation.

We have to pair that, though, with the ability to provide frank and fearless advice, which is our duty to the court and our duty to our clients. So, it’s a combination of that emotion because you can’t separate emotion from law, but also having that perspective about the hard reality that sometimes you may lose a case even though you’d love to win it.

BL

The law is many things. I come from a storytelling background. I see law as drama. You know, its action, it’s conflict. And I’m interested in diving deeper into the conflicts that come up when you get into these cases. One particular case that I want to bring up is Gloucester Resources Ltd versus the Minister for Planning, also known as the Rocky Hill case. This is a case where a proposed coal mine was knocked back partly on the basis of its potential contribution to climate change. And here the EDO represented Groundswell Gloucester, a not-for-profit community group concerned with environmental, social and economic issues. So, tell us about Gloucester. What makes it special and what’s the community like there?

MF

My first encounter with Gloucester was actually in high school and I was doing the, I think it was the either the bronze or the silver Duke of Ed.

BL

Of course.

MF

And we had to do kayaking. I think that I – if it was the silver Duke event – I think I didn’t end up getting the medal because I dropped out of the course. But part of that may have been because we went to Gloucester, and it was almost winter and we were forced to kayak down the rapids in freezing water. And I was shivering. I was a scrawny Asian kid, people can relate. And I thought, I’m not going back to Gloucester at all.

BL

You’re like, ‘I’m over this.’

[The Rocky Hill case] was the first time in Australia, possibly the world, where a court has refused consent to a fossil fuel development, partly on the basis of climate.

– Matt Floro

MF

Yes, it was a bit of a scarring experience. But coming back to Gloucester with EDO, I immediately became enamoured by the landscape, by the people, by the history, including the Aboriginal history. So, on my first day at EDO, leaving the private sector, leaving private practice, I was given Gloucester Resources Ltd and Minister for Planning – the Rocky Hill case – to work on by the wonderful Elaine Johnson, who’s a mentor to me. She’s the director of legal Strategy at EDO.

And it was a community led effort, so it was called Groundswell Gloucester, a local community group, and they were very much concerned about this proposal for an open cut coal mine in this beautiful, picturesque valley with incredible ranges on either side and a very tight knit community with links, of course, to First Nations peoples. We had already – we as in EDO on behalf of that client – we had already benefited from the department’s recommendation of refusal of the project, the planning assessment commission’s refusal of the project, and now the proponent, Gloucester Resources, wanted to appeal that refusal to the Land and Environment Court.

So, we as a community group, we weren’t originally part of the proceedings. We applied to join the proceedings as a second respondent on the basis of two things that we thought wouldn’t be fully ventilated had we not been joined. So, climate was one and social impact. And thankfully we were successful in being joined. That then followed intense preparation for the case. Multiple trips to Gloucester, social research interviews that were done of the resistance, including by us lawyers, by Dr Megan Kessler, who’s a fantastic former scientific director at EDO.

And also, we engaged two excellent experts: the late Emeritus Professor Will Steffen, whom we’ve lost a couple of weeks ago, fantastic climate person on the Climate Council, etc. And Dr Hedda Askland who’s a social research expert at Newcastle Uni. So, they really dove quite deeply into those two issues.

Came to the hearing and it was almost a three week hearing. So, quite a long hearing for this area of law. Hearings in Sydney and on site in Gloucester, around the mine and in the old Memorial Hall with sweet and sour pork, etc. in the back room. We came away from that hearing, uncertain as to how it would go, but also happy that we had put our best effort our clients and EDO. And thankfully we won. And it was the first time in Australia, possibly the world, where a court has refused consent to a fossil fuel development, partly on the basis of climate.

BL

Wow. That’s remarkable. And does that form the foundations of a future models and templates that other cases might take shape with?

MF

I think so. It’s a merits decision, so it doesn’t formally set a precedent. It’s a case decided on its own merits. However, I think that our approach to that case, our client’s approach and EDO’s approach and the results of that case, a judgement that spanned about 500 paragraphs, if not more. It forms a very solid foundation for a lot of climate law now.

BL

You mentioned before, just to take a few steps back, that the argument was really about two thrusts. It was it was climate, and it was about social impacts. So, climate might be the obvious impact. What was the social impact argument for preventing this fossil fuels project from happening?

MF

It was the first time that a court had accepted the notion of solastalgia as a potential basis for refusal. The court had considered solastalgia in the Bulga case, the Warkworth mine in the Hunter Valley, but it wasn’t a factor there. But in the Rocky Hill case, the court accepted the evidence of Dr Askland. And tied up with the notion of solastalgia was also the receipt of evidence from First Nations Elders in Gloucester who were talking about the preciousness of that land, the impact of the proposal on the places where they would perform their sacred traditions. And I think that was a first, if you will.

BL

So, this was a ground-breaking legal case. How was it received? How was it received in the press? How was it received in the community? How was it received across the country?

MF

I think you can sort of predict that the more conservative elements of the media were pretty upset about it. And that included –

BL

You say that with a smile.

MF

Yes, I think we expected that. But some of it – and it’s always upsetting and disappointing – some of it was a little bit too harsh.

BL

And it was – to what extent was them being upset coming from fear, fear that other projects might not happen because of what had just happened with this legal landmark case?

MF

Probably a large extent. Probably a large extent. And I guess that that case was the first of a series of new cases which have advanced the law. So, to a degree their concerns were valid, that it would influence how proposals would be assessed and determined to a degree that was our client saying, not only to stop this proposal from destroying the valley, but also to hopefully engender change.

BL

And do you already see a legal legacy with that case in terms of cases that have happened since? I’m thinking specifically of the Bylong Coal project. What’s the relationship there.

MF

The Bylong Valley is west of the Blue Mountains near Mudgee, very beautiful part of the world, lovely wine, etc. This was a proposal to have an open cut and underground coal mine by Kepco – Kepco was the company – and it was going to produce, I think, upwards of 200 million tonnes of emissions over its life. So, a substantial project in this incredible valley with heritage from the colonial era and even before that to First Nations of course.

So, we represented our client, the Bylong Valley Protection Alliance, in opposing that proposal, and we succeeded before the Independent Planning Commission, which is the main body for determining these sorts of state significant developments. The proponent then appealed to the Land and Environment Court on the basis that a legal mistake was made by the IPC. So, not on a merits basis but a legal mistake. And we were successful. LEC, the Land and Environment Court, confirmed the IPC’s refusal, and then I stepped in at the Court of Appeal in the High Court stage.

So, the mine kept on pursuing this to the High Court, and we succeeded at both the Court of Appeal and the High Court. Before the IPC, the IPC did consider the Rocky Hill case. And I mean, climate was a factor. There were other factors as well. For example, the effect on really good agricultural land, but Rocky Hill was a factor, again, behind this decision.

So, before the Court of Appeal and the High Court, the proponent was saying that the IPC should not have had regard to certain policy instruments and it should have been quite confined in its approach. But the upshot of that litigation was that it’s been confirmed in New South Wales that a decision maker can choose which policies it has regard to, which greenhouse gas policies, which may include domestic instruments that incorporate the Paris Agreement. So, it has that power. And in the Bylong Valley Kepco proposal case, the IPC considered that appropriately. So, in the end, the proposal was confirmed to be knocked back.

BL

You’re telling us a lot of good news stories and giving us a lot of cases that are triumphs. And I imagine for all of those, there are losses along the way. And I wonder, would you be able to share with us what a loss looks like, whether it’s a specific case or the shape of a loss, not to necessarily take us back to a place of despair, but to illustrate what are the roadblocks still in the way when you pursue legal cases like this? What are the kind of barriers to victory sometimes?

MF

The Sharma litigation, which is litigation that EDO didn’t run, but equity generation lawyers ran. And I think David Barnden is another interviewee on this series. So, the Sharma litigation concerned the Vickery coal extension proposal, another New South Wales coal proposal. And the litigants in that case were a group of young people represented by a sister, a nun. And they were arguing that the Federal Minister for Environment at the time, Susan Ley, should have in her contemplation Australian children in carrying out her functions for approval under the Federal Environment Act, the Environment Protection Biodiversity Conservation Act, when considering whether or not to approve this extension.

So, that was a test case brought by those children in the Federal Court. And initially at the first decision in the Federal Court, they won. So the court, Justice Bromberg, found a positive duty on the part of the Federal Environment Minister to have regard to the potential harm that these proposals may cause to Australian children in whether or not to approve the mine. The Minister then appealed that decision to the full court of the Federal Court and the Minister won so that that tortious duty of care was overturned in that case, which was of course disappointing for the children and disappointing for climate jurisprudence, although it must be said that it is very hard in tort law. Tort law is the law of civil wrongs to form this duty of care that concerns climate.

Now, that’s not to say that one won’t be found in the future. And we’re still waiting on cases such as the Torres Strait Islander case, which is involving a lawsuit against the government, the Australian government, and also a New Zealand case where a Māori Elder, Mr Smith, is suing Fonterra, one of the biggest dairy companies for its apparent failure to have regard to the impact of their emissions on Māori.

So, it is possible that a climate duty of care will be founded in the future. But there is a long way to go still. Hopefully not too long because we don’t have much time to get there. And I think we can probably gain some inspiration, for example, from the tobacco litigation, dust, diseases, litigation, where perhaps the causal link between the cause of the harm and the harm itself may have other factors as well. But as long as there is a material contribution by that cause, hopefully we can found liability there.

BL

You’ve also turned your attention to defending Bushfire Survivors for Climate Action. Pursuing their case against the New South Wales Environment Protection Authority, the EPA. Could you tell us a bit about the Bushfire Survivors of Climate Action and what were they seeking from the EPA exactly?

MF

Bushfire Survivors for Climate Action is another community group, most of whom are based on the south coast, but also some on the north coast. And as the name suggests, they have survived the threat of devastating bushfires. For example, the Tathra bushfire several years ago, the Black Summer bushfires. So, a group of people from that region, from those regions, fire fighters, local councillors, etc, who were very concerned about the lack of climate action in New South Wales. And they were concerned that the New South Wales Environment Protection Authority, the lead agency for Environment Protection in this state, didn’t have a climate policy, which was quite confounding to them as it was to us.

So again, litigation must be the last resort and we represented them before EPA to try to see if there could be any action in that space. Ultimately, our client chose to sue EPA to force them to perform their duty under their own act, under their own legislation, and the duty was that they were required to develop policies, guidelines and objectives to ensure environment protection. And our client argued that in this day and age, with the best available science, environment protection must include the greatest threat to the environment, which arguably is anthropogenic climate change.

So that was our argument before the Land and Environment Court: that EPA had not done its duty under the Act, and it should do and the court should force it by writ of mandamus, which is a technical term, which allows the court to force a public authority to do its duty.

BL

So that’s the argument. What’s the outcome?

MF

Yes, our client won, which is fantastic. So, the EPA pointed to several of its other instruments and policies that it said went to its duty, that fulfilled its duty in respect to the environment, protection from climate change. But the court found that those policies to which it directed the court weren’t really policies that met that definition of policies to protect the environment from climate. So, the court found that EPA had to develop those policies. And the good thing is that EPA started to do that, and we have continued to represent BSCA, our client, over the last year in consultations with the EPA on its policy on climate. And just last month, New South Wales EPA finally released an Australian first Climate Policy and Action Plan, which our client is really thrilled to have been a part of.

BL

That’s really cool and correct me if I’m wrong, but is it true that this case remains the first and only one where a community group has sued the government for not taking enough action on climate change and actually succeeded? Is that right?

MF

Yes, that’s right. That’s right. I mean, Sharma would have been such a case, but it was overturned on appeal. So, this remains that sort of case.

BL

We’ve been discussing these quite incredible legal wins and also what the losses illuminate about the state of play at the moment when it comes to taking legal action with climate change. How would you say that climate law is progressing at the moment? I think you’ve described previously various waves of climate law, the three waves of climate law. Can you expand on that?

MF

The first wave was primarily concerned with administrative law challenges to government decisions under environment and planning law. So, community groups challenging EIS processes (environmental impact statement processes), or challenging decisions by the Planning Assessment Commission or the IPC or the minister. So, all these cases involving the minister.

The second wave and the third wave can be interchangeable. But the way I look at it, what came after that was more challenges on the public law side, so more kind of human rights challenges and constitutional law challenges, many of which have been more successful overseas, particularly in Europe, some in Asia as well, and some in South America and the United States, where they have much stronger constitutional rights, including bills of rights.

And then the third wave, as I see it, has been the focus now on private law actions, including challenges to greenwashing, challenges to allege misleading and deceptive conduct. Private law actions that you see referred to in the Financial Review almost every day. So business is probably almost at the forefront in terms of these discussions, because ultimately, they want to make money for their shareholders and also for their other owners. So, it’s become an economic risk and the risk of stranded assets. So, you’ve got these old sort of hulking coal mines, coal powered stations into the future will increase over time as we transition to this net zero future.

I think looking forward, all three waves, all three generations of litigation will still be important. Community groups will still want to challenge government decision making under environmental laws. Increasingly, there will be human rights action. So, in Queensland, EDO, on behalf of our clients Youth Verdict and The Bimblebox Alliance recently successfully challenged Clive Palmer’s proposed Galilee Coal Project mine. And there will now be some really interesting cases on greenwashing.

BL

Now you’ve just wrapped up, I believe, a semester of teaching climate law and policy at Southern Cross University. So above all the work that you’re already doing, above the care work that you’re doing, you’re also teaching too, which is mind blowing. But I am curious, what is the attitude of this upcoming generation of lawyers, Generation Z lawyers, when it comes to climate action and their role in that space?

I think we’re moving away from seeing the law in a purely positivist conception to a more realist conception, more normative conception of the law, where our emotions, our feelings about the law as a form of social ordering can be harnessed into reform.

– Matt Floro

MF

As I said, they are quite emotional, which is a good thing. And I think we’re moving away from seeing the law in a purely positivist conception to a more realist conception, more normative conception of the law, where our emotions, our feelings about the law as a form of social ordering can be harnessed into reform, and reform can take place in a number of ways. So, as I said, through changing government laws, through court action, through changing executive policy, our young people are really excited by the possibility of making change. They’re also very concerned that we have less than eight years to go till 2030. So, when we may reach those tipping points that will tip us over into a potentially hothouse earth.

The Paris Agreement says that we must remain well below two degrees Celsius in global average temperature rise above pre-industrial levels and as close as possible to 1.5. But in Australia I think we’re at about 1.4 degrees Celsius above pre-industrial levels right now. So, our young people, they are marching in the streets, they’re performing non-violent action. As I said, we need to use that emotion, use that impetus, channel it into a very focussed lens, a very focussed approach to those things I talked about. So, continuing to lobby for changes to laws, continuing to try to change executive policy, and also bring some much-needed ground-breaking climate litigation.

BL

Just to wrap up, do you see an injustice out there that you’d really like to wrestle?

MF

I think the decision makers. So, decision makers, well, by their very name, they make decisions that affect all of us. So, when we look at government decision makers and I’m talking here about executive government, ministers, etc, often it’s about education. So yes, they may see these headlines in the papers, on TV every night, but do they actually understand the science behind it? And luckily at EDO, we have a really fantastic scientific program led by Dr Sharyn Goldstein, who I know is here. And the focus of that program is, as I say, education, using the best available science. And hopefully our executive decision makers can take that on board.

You’ve also got judicial decision makers, so judges, tribunal members, etc. And again, I would love to be able to see an improvement in their knowledge of climate law, environmental law, the principle of ESD and the public interest as well.

And I guess thirdly, you could say parliamentarians in general so the backbenchers, etc, who often receive representations from community groups, from local citizens in their area. So, if climate becomes an everyday conversation, we talk about heat islands in Western Sydney, we talk about waves that are eroding magnificent beaches up and down the coast. We talk about bushfires, we talk about pollution and carbon pollution’s effect on human health, on the respiratory system. If climate becomes an everyday conversation, I think I’d be happy.

BL

Well, thanks for contributing to that conversation and thanks for passing on your knowledge and for the education today, Matt, we really appreciate it. Could you please join me in thanking my wonderful guest today, Matt Floro? To follow the program online or to listen or to watch conversations with climate leaders, including Oz Harvest founder Ronni Kahn, former Australian of the Year, Tim Flannery, businessman and activist shareholder Mike Cannon-Brookes, and Dark Emu author Bruce Pascoe, you can go to 100climateconversations.com.

This is a significant new project for the museum and the records of these conversations will form a new climate change archive preserved for future generations in the Powerhouse collection of over 500,000 objects that tell the stories of our time. It is particularly important to First Nations peoples to preserve conversations like this, building on the oral histories and traditions of passing down our knowledges, sciences and innovations which we know allowed our Countries to thrive for tens of thousands of years.

Related Episodes