Climate Litigation and Evolving Legal Duties: How Climate Risk Is Reshaping the Legal Practice

Authored by Hayley Tam, Head of Built Environment & Disputes, Practical Guidance, and Research by Feng Emily Lizzio, Paralegal, Practical Guidance.

Climate change is rapidly reshaping our physical environment as well as the legal and regulatory landscape.

As the consequences of climate-related risks become more foreseeable, lawyers in every field - from corporate and finance, to property and disputes - face evolving duties to consider physical, transition, and litigation risks when providing advice to their clients. At a glance:

Growth and diversification of climate litigation

Climate litigation continues to expand in scale and sophistication globally, with Australia remaining a climate litigation hotspot. Most domestic cases have focused on project approvals, while actions targeting corporate responsibility and government responsibility are increasing.

Corporate and regulatory accountability intensifying

Regulators are ramping up enforcement against greenwashing and disclosure breaches. ASIC and the ACCC have signalled that climate-related issues are a key enforcement focus. The introduction of mandatory climate-related financial disclosures, effective from 1 January 2025, heightens legal exposure for corporations and directors as they transition to the new reporting regime.

Evolving professional standards for lawyers

Legal regulators and professional bodies increasingly acknowledge an emerging duty for lawyers to consider climate-related risks in their advice. Competent practice now demands climate literacy and ongoing awareness of legal and policy developments.

The Global Climate Litigation Landscape

The total number of climate cases initiated globally continues to rise, particularly across the Global South. However, the overall growth rate of climate litigation is thought to be stabilising as the field of climate litigation matures and more novel and complex cases emerge, see Setzer and Higham’s 2025 Snapshot on Global Trends in Climate Litigation.

Although non-binding, the International Court of Justice (ICJ)’s Advisory Opinion on Climate Change is expected to influence national policymaking and have an impact on future strategic climate litigation. The ICJ concluded that States are obliged under international climate treaties to protect the climate system from anthropogenic greenhouse gas emissions, and a failure to take appropriate action may amount to an internationally wrongful act.

Trends in Australian Climate Litigation

Australia remains one of the most active jurisdictions for climate litigation, second only to the United States. The total number of Australian cases is somewhere between 160 and 600, depending on how you define ‘climate-related.’ For a comprehensive list of cases, refer to the University of Melbourne’s database.

Our research found that approximately 400 Australian cases have referred to climate change, a climate risk, carbon, or greenhouse gas emissions in some way, whether as a substantive or peripheral issue.

By jurisdiction, Victoria and New South Wales lead the field. The high volume of cases in these States is likely to reflect:

• the presence of specialised environmental courts or dedicated court lists;
• robust legal frameworks that provide for third-party standing;
• the growing integration of climate considerations into local government and planning policies; and
• active civil society and legal advocacy groups pursuing strategic climate litigation.

Key Categories of Climate-related Cases

Project Approvals Roughly two-thirds of Australian climate litigation concerns challenges to project approvals, with many involving environmental impact assessments and fossil fuel developments. Project approval litigation has evolved alongside a rise in NGO-led public interest cases and judicial developments establishing that consent authorities must consider both direct and indirect greenhouse gas emissions.

Including downstream (scope 3) emissions — when assessing applications, e.g., ACF v Latrobe City Council; Gray v Minister for Planning; Gloucester Resources Limited v Minister for Planning.

Corporate Accountability

There has been a rise in cases targeting:

• misleading and deceptive emissions claims, e.g., AP4CA v Energy Australia; ACCC v Volkswagen; and
• inadequate disclosure of climate risk, e.g., McVeigh v REST; O’Donnell v Commonwealth; Abrahams v CBA.

Regulators such as the ACCC and ASIC have intensified enforcement against greenwashing and disclosure breaches, reflecting heightened scrutiny of sustainability and ESG claims.

With mandatory climate-related financial disclosure requirements commencing on 1 January 2025 for the largest in-scope reporting entities, and other categories to be phased in progressively until 1 July 2027, corporate accountability for climate risk has become a central focus of regulatory scrutiny and litigation risk. However, the full impact of climate litigation in respect of these disclosure obligations may not be felt for the next few years, as the modified liability regime provides temporary relief from certain claims, such as misleading or deceptive conduct in a climate statement within a sustainability report, for a period of three years.

State Accountability and Human Rights

Building on influential international climate cases - such as Urgenda Foundation v Netherlands and Held v Montana - Australian litigants are testing novel legal arguments grounded in human rights, torts, and administrative law, e.g., Billy v Australia. Applicants are seeking to hold government bodies accountable for inadequate climate action through these evolving legal frameworks.

Youth- and Indigenous-led litigation is gaining momentum, pushing for broader interpretations of negligence and the duty of care. However, the Federal Court remains cautious about extending the duty of care to climate change, e.g., Sharma v Minister for the Environment; Pabai v Commonwealth.

Access to Justice

Access to justice cases (in the climate context) span a broad spectrum, from criminal proceedings involving protestors to disputes over access to information, and questions of standing. This expanding body of law is testing the balance between climate activism and fundamental political freedoms.

Beyond protest-related matters, climate issues are emerging in broader legal contexts such as corporate contract disputes and environmental-offence enforcement.

Key Actors in Australian Climate Litigation

Our study showed that Respondents typically comprised:

• Government/public bodies (65%), reflecting the high number of challenges to project approvals.
• Corporations (25%), highlighting the growing focus on corporate accountability and ESG responsibilities, particularly across the mining, energy, banking, and financial services sectors.
• Private individuals (10%), including activists and parties in smaller civil or administrative matters.

Most claims have been brought by:

• concerned citizens;
• community organisations; and
• NGOs, such as the ACF and EDO.

Climate Risk Obligations and Professional Standards

The rise in climate-related disputes has been accompanied by a growing expectation that lawyers recognise and address climate risks that arise in their clients’ matters.

Solicitors and barristers are bound by ethical duties to uphold the rule of law and to act competently and diligently. As climate-related risk becomes more pervasive, these professional obligations will naturally extend to considering and advising clients on climate-related legal implications.

"[L]awyers should advise clients on the legal implications of climate change in accordance with professional standards and legal ethics..." -Law Council of Australia’s Climate Change Policy (2021)

Law societies and bar regulators — from the UK to the US — are beginning to embed climate duties into policy and professional standards. In 2023, the Law Society of England and Wales published the first formal professional guidance on the Impact of Climate Change on Solicitors.

In 2024, the Law Society of New South Wales (LSNSW), in its Climate Change Practitioner Guidance, suggests there is: “an evolving duty of care owed by solicitors to their clients to provide advice regarding a legal problem which meaningfully addresses any climate change issues and related consequences.”

"Climate-related risks will affect most clients and nearly all areas of legal practice." -LSNSW Climate Change Practitioner Guidance

The LSNSW guidance was updated in August 2025 to include Annexure B, which summarises the key legal frameworks and provides practice area guidance for advising on climate risk.

Practical Steps for Lawyers Responding to Climate Risk

Climate change is not just the purview of environmental lawyers - it is an unavoidable risk with implications across most areas of legal practice.

To align with leading practice and maintain professional competence, practitioners should:

• Be aware of the evolving duty to advise on climate-related risks, including:

• Physical risks (e.g., rising temperatures, sea-level rise, and increased flood or fire hazards);
• Transition risks (e.g., regulatory, market, employment, and technological shifts in the move to a low-carbon economy); and
• Litigation risks (e.g., the growing number of climate-related disputes).

• Address any competence gaps by pursuing relevant training on climate change law and risk.

• Review practice areas for climate relevance, such as corporate, property and finance transactions, corporate governance and disclosure, consumer law, insurance, contracts, and dispute resolution.
• Identify any climate risks in new instructions and clearly define whether climate-related advice is within the scope of the retainer.
• Collaborate across disciplines to deliver comprehensive, forward-looking advice on climate risk and adaptation.
• Monitor climate litigation trends to stay informed about judicial developments in climate change law.
• Track regulatory and policy developments to keep up to date with mandatory climate-related reporting, regulatory enforcement priorities, and new legislative developments.

Mandatory climate reporting commenced in Australia on 1 January 2025. Read our article Making the transition to mandatory climate reporting: The pivotal role of In-house counsel and download the Mandatory Climate Reporting Guidance Checklist.

As climate risk and litigation continue to evolve, staying informed is critical. Access guidance on ESG, mandatory reporting and greenwashing, see LexisNexis® Practical Guidance Corporations, LexisNexis Practical Guidance Governance and LexisNexis Practical Guidance Consumer.