Environmental Litigation

Course Description

The course is designed:

• to provide an understanding of the theory and practice of environmental litigation in Australia; and
• to use scenario-based learning (i.e. active learning through problem-solving involving specific factual situations) to provide an integrated and practical knowledge of environmental litigation as a part of the environmental regulatory mix.

Course Syllabus

The course may cover the following topics:

1. The role of environmental litigation as part of a mix of environmental regulatory instruments and designing environmental policy

2. The role of lawyers in environmental litigation

3. Avoiding and narrowing litigation through good project planning, consultation, sound environmental management practices, and Alternative Dispute Resolution (ADR)

4. Common issues for environmental litigation (e.g. litigation strategies, the litigation process, use of expert witnesses)

5. Environmental litigation to enforce the law by private individuals using common law and statutory avenues

6. Environmental litigation against government decisions, both merits review and judicial review

7. Environmental litigation by government, including civil litigation and criminal prosecutions

8. Critical analysis of environmental litigation frameworks in Australia as part of an effective regulatory system.

The major intended outcomes of the course are:

• To understand the purpose of litigation as part of the environmental policy mix.
• To understand the mechanics of the different types of environmental litigation, including private litigation, litigation against government decisions, and litigation by government.
• To be able to apply a knowledge of the theory and mechanics of environmental litigation to advising a client in practice.
• To be able to analyse critically the different frameworks for environmental litigation in Australia according to modern environmental regulatory design principles.

It is expected the assessment for the course will be as follows:

1. A practical exercise involving either:

(a) settling an advice on prospects of success and a Claim and Statement of a Claim for an injunction under s475 of the EPBC Act based on a given factual scenario; or

(b) settling an advice on prospects of success and a Notice of Appeal against refusal of a planning application in the student's State or Territory based on a given factual scenario.

2. Writing a research paper relevant to the topic and the student's interests.

Students must rely on the Approved Assessment which will be posted to the course homepage on the ANU Law website, prior to the commencement of the course.

The course is intended to complement other ACEL courses, particularly Environment Business and Regulation (LAWS8111) and Environmental Dispute Management (LAWS8278).

Spend 1-2 hours reading the case studies of environmental litigation available at http://www.envlaw.com.au/case.html, particularly the initiating process (i.e. the Applications and Statements of Claim initiating the litigation).