Flying foxes, dams and whales: using federal environmental laws in the public interest

Abstract

This article examines the current opportunities and obstacles for public interest environmental litigation at a federal level in Australia. It provides a survey and a series of five case studies of public interest litigation under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The main conclusions reached are that standing and lack of substantive laws are no longer the major obstacles to public interest environmental litigation in Australia at a federal level. The main obstacles are the threat of adverse costs orders, a general lack of financial resources, and the lack of merits review. These obstacles inhibit public interest litigation enforcing the law and promoting good decision-making by government. The article concludes with recommendations to alleviate these obstacles under the EPBC Act and the emerging climate change regime.