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Climate change and duty of care

 

The children have been busy. On matters of environmental justice, Australia has witnessed much legal activity from youthful citizens who, despite in some cases not being old enough to vote, have stirred politics. In 2021, five lodged complaints with the United Nations over the failure of the Australian government to cut, in a meaningful way, greenhouse gas emissions by 2030.

The complaint to the United Nations Special Rapporteur on Human Rights and the Environment, Special Rapporteur on the rights of Indigenous peoples, and Special Rapporteur on the rights of persons with disabilities, could only have been impressed. Three central questions were posed by the complainants: whether such inaction was ‘consistent with the human rights obligations’; whether such conduct was ‘compatible’ with the human rights of young Australians ‘and whether the State will establish a permanent forum to include young people from impacted communities.’

As impressive as this was, another development, this time reached through litigation, sent rumblings through government channels and the resource sector.  With a focus on duty of care, the federal government found itself entrenched in a legal battle in the case that came to be called Sharma v Minister for Environment [2021] FAC 560. The case involved a challenge by eight teenagers and a remarkable octogenarian, Sister Brigid Arthur, to an application by Whitehaven to approve the $700 million expansion of its Vickery mine in New South Wales. The target of the action, and an increasingly popular one in climate change litigation, was how the Environment Minister’s decision-making powers on the issue of permitting a coal mine from going ahead should be exercised.

The applicants argued that a government decision-maker in that position owed a duty of care to Australian children to protect them from harms resulting from climate change.  Federal Court Justice Mordecai Bromberg found that the burning of coal from the project would likely result in a ‘tiny but measurable increase to global average surface temperatures’. This would likely increase global average surface temperatures beyond two degrees centigrade above pre-industrial levels, causing catastrophic climate hazards.

The justice also found that the reasonable person in the Minister’s position would be able to foresee that the Project’s carbon dioxide emissions and its contribution to global surface temperatures would result in a risk of death or other personal injury. ‘By reference to contemporary social conditions and community standards, a reasonable Minister for the Environment ought to have the Children in contemplation when facilitating the emission of 100 Mt of CO2 into the Earth’s atmosphere.’

 

'In their March decision, the judges clipped this novel interpretation of duty of care, concluding that Ley did not owe a duty of care to protect Australian children from the harms arising from climate change when granting approvals to fossil fuel projects.'

 

The court also concluded that the Minister had a duty of care to take reasonable care to avoid personal injury to the children when considering whether to approve or reject the Project under the Environmental Protection and Biodiversity Conservation Act (1999) (Cth). In doing so, Bromberg J rejected the argument from the Minister that finding such a duty would result in a flood of litigation, imposing liability on ‘all or a multitude of persons involved in generating emissions of greenhouse gases’.

The children failed, however, to convince the court that an injunction on the project was in order. The justice was not convinced that the Minister would have breached her duty of care in using her discretion under the legislation, given that no indication of a decision had been made. Pre-empting such an exercise of power was an undesirable route to take. A more prudent course would be to consider if a breach might result after the Minister’s approval of the project, and the conditions of that approval.

The decision provided an echo of another case — that of Urgenda Foundation v State of Netherlands. Urgenda Foundation, a Dutch environmental group, along with 900 Dutch citizens, successfully sued the Dutch government, arguing that its pledges to reduce greenhouse gas emissions by 17 per cent would fail to meet the UN goal of keeping global temperature increases to within two degrees Celsius of pre-industrial conditions.

The Hague District Court went so far as to order the government to limit greenhouse gas emissions to 25 per cent below 1990 levels by 2020. The state, it was found, had a duty of care to mitigate the effects of climate change given the ‘severity’ of its consequences ‘and the great risk of climate change occurring.’

In October 2018, the Hague Court of Appeal affirmed the ruling, finding that the government’s failure to reduce greenhouse gas emissions by at least 25 per cent by the end of 2020 would be unlawful and contravene the duty of care provisions (Article 2, protecting the right to life; Article 8, which protects the right to private life, family life, home, and correspondence) under the European Convention of Human Rights. An attempt to overturn the decision in the Supreme Court of the Netherlands subsequently failed.

With such precedent beginning to bulge ominously for the resource sector, Australia’s own Environment Minister, Sussan Ley, was having none of it. The Full Court of the Federal Court proved sympathetic to her appeal. In their March decision, the judges clipped this novel interpretation of duty of care, concluding that Ley did not owe a duty of care to protect Australian children from the harms arising from climate change when granting approvals to fossil fuel projects.

The lengthy judgment returned the judicial branch to a more considered conservatism distanced from making policy. It was not for the ‘Judicial branch to rule upon any lack of adequacy or any lack of wisdom of government policy by reference to the law of torts.’ The judges also held that imposing any such duty of care on the Minister was ‘inconsistent and incoherent with the EPBC Act’ while being indeterminate and beyond the control of the minister.

Throughout the judgment is a sense of concern that the duty of care of argument was being imposed ‘in the absence of damage or likely threatened damage from the tortious conduct.’ Courts generally cherish quantifying damages and the bill. The litigation in question seemed to be gazing far into the future, albeit backed by considerable evidence.

Chief Justice James Allsop expressed an opinion that would not have discomfited some Coalition backbenchers.  Global warming of a catastrophic nature could well be real, but any individualised harm from a single mine approval would be ‘for indeterminate damages’ and eventuating ‘in decades to come’. For that reason, damage was not ‘reasonably foreseeable’.

Justice Jonathan Beach also focused on the issue of postponed doom. There was insufficient ‘closeness’ and ‘directness’ between the decision of an individual minister and the harm that might arise from the decision.

Various members of the corporate sector expressed relief at the decision. ‘Companies do not like to take decisions about whether to spend billions of dollars when there is the prospect for legal challenges,’ an unnamed industry executive told the Australian Financial Review

A spokesperson for Whitehaven stressed the element of certitude for those invested in the fossil fuel industry. In Australia, the implication went, one should be more accommodating to the resource sector. ‘Confidence in Australia’s environmental approvals framework is essential to ensuring our resources sector can continue to support national economic prosperity.’ Given the lower court decision in Sharma, and a growing number of cases pointing to positive duties that need to be undertaken to prevent harm arising from climate change, governments and fossil fuel emitters have been put on notice.

 

 

 


 

Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Main image: Students urge action on climate change (Mark Metcalfe / Getty Images) 

Topic tags: Binoy Kampmark, Climate Change, Sussan Ley, Environment, High Court, UN

 

 

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Existing comments

Governments over the years have made decisions which gave us a right to kill our planet and we took notice of them because we did not know any better. As a result of this, we are paying the penalty so they do have a duty of care and they cannot deny it. But they then they expect us to vote for them. In my opinion, they do have a duty of care and they must admit it.


maryellen flynn | 07 April 2022  

I have spent 50 years working in land management, mostly in the arid zone and observed first hand how nature adjusts to the enriched carbon environment with unprecedented growth mainly through woodland thickening, which has become a major problem in what was once native grasslands. For instance around Cloncurry country that carried 6 to the mile now carries 32 to the mile mainly as a consequence of the naturalization of buffel grass across the arid zone.
Observation of what is really the result of an enriched carbon environment will be more informative than climate modeling that is the product of the observer.


Nev Hunt | 08 April 2022  

Whatever people might think about the duties that should attend on a decision maker making important decisions, it was an exotic proposition to state that as a matter of the law of torts a duty of care of the type claimed to exist actually exists in that case.


Bob | 08 April 2022  

CO2 emissions have increased 50%, from 24.3Gt in 2000 to 36.3 Gt in 2021, despite $US5 trillion being spent on climate policies in the last decade.
While emissions have been declining in developed countries for a decade, the increase is mostly attributable to massive coal-fired electricity generation in countries like China and India. China alone is adding 38GW of coal-fired power plants this year and another 47GW next year, with hundreds more in the pipeline.
The never-ending “climate catastrophe” claims don’t seem to worry China which forges ahead with development. China excels in education excellence and average incomes have increased fivefold this century, compared with the West’s decline in both education and real wages.
The EU has the illusion of going off fossil fuels by refusing to tap their own abundant gas reserves while simultaneously becoming dependent on Russian fossil fuel gas. In fact, since the start of the invasion of Ukraine, the EU has paid Russia €35 billion for energy compared to sending €1 billion in aid to Ukraine.
Small wonder “Woke” Westerners can’t even tell you what a woman is.


Ross Howard | 08 April 2022  

Binoy the technology exists (the Direct Fuel Cell) with a working prototype developed at QUT but these days widely known. Far more efficient at converting biomass or coal to electricity without the need a coal fired turbine.
Advantages:
"High Efficiency- when utilizing co-generation, fuel cells can attain over 80% energy efficiency
Good reliability- quality of power provided does not degrade over time.
Noise- offers a much more silent and smooth alternative to conventional energy production.
Environmentally beneficial- greatly reduces CO2 and harmful pollutant emissions.
Size reduction- fuel cells are significantly lighter and more compact.
Disadvantages: Expensive to manufacture due the high cost of catalysts (platinum);
Lack of infrastructure to support the distribution of hydrogen.
A lot of the currently available fuel cell technology is in the prototype stage and not yet fully validated.
Hydrogen is expensive to produce and not widely available at this point. Notable companies that have implemented fuel cell systems include AT&T, Coca-Cola, Walmart, NBC Universal, and Google. These stationary systems are becoming so popular by providing power with negligible emissions that is not disruptive; the systems are clean and operate quietly. If waste heat is exploited for refrigeration or space heating purposes, the overall energy efficiency can increase from around 30% to over 80%. "Authors Lauren White and Anna Oleksiewicz- University of Illinois Board of Trustees. 2016.


Francis Armstrong | 09 April 2022  

What you write here is all capital stuff, Binoy. There are, however, a couple of problems associated with reducing greenhouse gases: (1) India and China, the worst polluters are not doing anything about the problem.(2) There is an almost religious refusal to countenance safe nuclear power which the new technology can provide. Kristina Kenneally, who will have a senior ministry if Labor wins the upcoming election, is dead against it. We also have the NIMBY (Not In My Backyard) lobby, who will claim every proposed waste site is sacred land. I am all for young people being involved in this issue. I can see no problem lowering the voting age to 16. That might scare some of our politicians awake and make them do something.


Edward Fido | 10 April 2022  
Show Responses

Edward (I visited a peat bog when I was in Ireland years ago). Burning it for electricity emits more carbon dioxide than coal, and nearly twice as much as natural gas.
In 2016, peat generated nearly 8% of Ireland's electricity, but was responsible for 20% of that sector's carbon emissions. Wikipedia. So this is out of date.
Ross Howard's statistic is confronting on gas purchase v Ukraine aid.


Francis Armstrong | 11 April 2022  

Are the child litigants claiming a duty of care to themselves now or to their hypothetically-existing selves in a generation’s time? But, as they cannot prove that they will be existing in a generation’s time, to whom is the duty of care owed? To anyone who will be existing in a generation’s time?

If it’s simply a matter of providing evidence that a Minister’s action now could cause harm to others, not themselves, who may be living in the future, why only sue a minister here, why not any minister anywhere? Why not sue a Parliament through its presiding officers? Why not sue Joe Biden and the majority and minority leaders of Congress to stop US subsidisation of ‘reproductive health’ in the ‘developing world’? Why not sue the Cardinal Secretary of State for not including certain terms in the Vatican’s treaty with China to protect the consciences of Chinese Catholics who are not members of the Catholic Patriotic Association? Why not sue any legislature to restrict the ability of same-sex couples to raise children in the absence of one line of their genetic provenance?

A claim of duty of care in a lawsuit on a matter of public policy is basically an attempt at a second vote to change a law after your first vote failed to make the difference you wanted. Whether that is a good or bad thing is a prudential, non-canonical issue so whatever happens with duty of care claims concerning climate change, the same could be used for any other issue for which a plausible claim of existing or future harm can be made. After all, if you add ‘no man is an island entire of himself’ to ‘without a vision the people perish’, it is an open question of when subsidiarity will allow one person to sue to overturn a vision adopted, either by due consideration or simply by default, by many. All it requires is a civil scripture with very broad terms such as a charter of ‘human’ rights (and maybe animal rights or the rights of rivers to be recognised as legal entities) and the use of ‘duty of care’ as a pragmatic term which means whatever judges reprising the Queen in Alice’s Wonderland want it to mean.

The prime example in the English-speaking world of a civil scripture which allows individuals to second-guess legislative decisions they don’t like is the constitutionalised US Bill of Rights and therefore it is of no wonder that appointments to the Supreme Court there are always significant.


roy chen yee | 11 April 2022  

It's not often you'll find a politician facing court as an individual Defendant and that's courtesy of the Act which appoints them protects them. We have Democratic and
political processes which regularly shuffle Ministerial roles between parties, cabinets and tasking. Courtesy of the Commonwealth Ombudsman:"The principle that a decision is final and the decision maker has no power to remake it is sometimes referred to as the doctrine of functus officio—a Latin expression indicating that a
public official, court or similar body no longer has legal authority because the relevant duties or functions have been finalised or spent." To pursue a claim agaist the current minister you'd need to prove current malfeasance (didn't do their Duty) and the "get out of jail free card" is usually as simple as lack of resources to perform the task or simply "it's not my job." Obviously the Environment Minister is not Minister Taylor who is responsible for energy and emissions for now. I hope the "Sharma" kids have at least gained an understanding of Australian legal process, not just used for pathos in the claim. Methinks the environmental rock will crack of its own natural volition before anyone can drive a successful legal wedge.


ray | 13 April 2022  

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