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.
Dr 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)