What has Happened?
In the past weeks we have witnessed a landmark judgement delivered by the Federal Court of Australia in Sharma v Minister for the Environment.
In 2020, eight Australian children brought proceedings against the Minister for the Environment, the Honourable Sussan Ley MP. The children were representatives for themselves and on behalf of young people under the age of 18 in Australia.
What Does This Mean?
They argued that the Minister for the Environment owes a duty of care to all children in Australia to exercise the conferred powers under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) with reasonable care. This was to protect the children from physical and mental injury and illnesses resulting from increased global temperatures. The children also claimed for an injunction to prevent the Minister from failing to discharge her purported duty of care.
The Minister for the Environment was in the midst of considering whether to approve the Vickery Extension Project. As the project would likely result in a seriously adverse impact upon natural habitats and the pollution of air and water bodies, this project required approval under the EPBC Act.
The project is worth AUD $700 million and was proposed by Australian coal miner Whitehaven Coal Limited, with the purpose of building an open-cut coal mine and relevant on-site infrastructure about 25km north of Gunnedah in New South Wales. The project is predicted to extract 33 million tonnes of coal over a period of 25 years, with an environmental outcome of about 100 million tonnes of carbon dioxide being released.
The Federal Court held on 27th May 2021 that the Minister for Environment owed a duty of care to all children under the age of 18 in Australia to avoid causing them personal injury because of increased carbon dioxide emissions.
Justice Bromberg found that this would increase the risk of global average surface temperatures increasing beyond 2°C above pre-industrial level, causing catastrophic climate-related hazards. With the knowledge of this, a reasonable person in the position of the Minister would foresee that, by reason of the Project's effect on increased carbon dioxide emissions and global surface temperatures, the Children would be exposed to a risk of death or other personal injury in the long term.
Dissenting, Justice Bromberg refused the injunction as the Minister could require emissions targets to be strictly enforced on the project so as to reduce emissions as far as possible, therefore possibly discharging this duty of care.
What Does This Mean?
The decision is iconic, as it is the first in acknowledging that a duty of care is owed by government decision-makers to young children in Australia to avoid the risk of harm to them due to climate change.
If the decision is upheld after any potential appeal, this will result in significant impacts for government decision-makers and corporations in industries that are emissions-intensive. Given that the Federal Court did not rule upon how this duty of care could apply in other situations, it opens up the question as to how far claims can be brought regarding an imposition of such a duty of care. It can be argued that the ambiguity of the decision will lead to a poor practical application.
What are the Impacts?
Increased Pressure on Government Authorities and Corporations:
The decision of the Federal Court of Australia will influence whether any current and future project applications should be approved under the EPBC Act. The projects in this category will largely be activities that will adversely impact animal and plant species, and/or cause air and water pollution. This may result in government ministers and decision-makers being very cautious of the duty of care that they owe, which turns them away from approving emissions-intensive projects or environmental legislation.
For those ministers who do approve, they need to be prepared that the projects are likely to face a high-level of scrutiny. This greatly encourages the setting of strict criteria and requirements for the relevant project organisations to meet, such as retirement of carbon offsets to reduce carbon emissions, or getting the organisations to carry out detailed assessments of the project’s long term climate impacts on the Australian environment and people.
The judgement reflects jurisprudential advancements in Australia to encapsulate the idea of inter-generational equity. The principle articulates a concept of fairness among generations in the use and conservation of the environment and its natural resources. Section 3(A)(C) of the EPBC Act refers to the importance of intergenerational equity, which is relied upon by Bromberg J when he states that the current climate issue is ‘the greatest inter-generational injustice ever inflicted by one generation of humans upon the next’. (at 292)
This creates a risk that claimants will bring climate change class actions against corporations in emissions-intensive industries with the aim of broadening the duty of care currently recognised by the Federal Court.
The judgement reflects a tone of conservatism as it did not allow an injunction that would prevent the Vickery project from extending further and left the decision of approval at the Minister’s discretion. This results in uncertainty as it is unclear how any potential considerations by the Minister, if demonstrated, could be challenged during an appeal. This is problematic for future claimants as a duty of care is imperative to reduce the impacts of climate change.
Nevertheless, there must be a practical aspect to accompany the duty of care, such as targets for emissions reductions that are bound by legislation, as held in the Irish case of FIE v Government of Ireland. However, this will be restricted by the willingness of individual jurisdictions in setting legislative frameworks. Without legislative frameworks in place, there may be no basis for claims to succeed.
Written by Jason Connolly
#CliffordChance #NortonRoseFulbright #HSF #Dentons #McCulloughRobertson
This Article was Written Using the Following Sources:
Whitehaven Coal, Vickery Extension Project, <https://whitehavencoal.com.au/our-business/our-assets/vickery-extension-project/>
Kirstie Richards et.al., ‘A Novel Duty of Care? Recent Developments in Australian and International Climate Change Law’ (The National Law Review, 2nd June 2021) <https://www.natlawreview.com/article/novel-duty-care-recent-developments-australian-and-international-climate-change-law>
Jones Day, ‘Federal Court of Australia Rules that the Government Owes Duty of Care to Australian Youth on Climate Change’ (JDSupra, 14th June 2021) <https://www.jdsupra.com/legalnews/federal-court-of-australia-rules-that-2669750/>
Edith Weiss, ‘Intergenerational Equity’ (Oxford Public International Law) <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1421>
FIE v Government of Ireland  IESC 49
Sharma v Minister for the Environment  FCA 560
Environment Protection and Biodiversity Conservation Act 1999 (Cth)