Court decision

Australian court finds government has a duty to protect children against climate change

Damian Roe, Jonathan Fulcher, and Elizabeth Harvey / 02 June 2021
7 min.
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Worthwhile read for: Mining industry professionals

Class action proceedings were brought against the Commonwealth Minister for the Environment (Minister) by eight Australian school children, represented by their litigation guardian Sister Brigid Arthur, seeking to protect children residing in Australia (the Children) from the climate change impacts of an extension to Whitehaven’s Vickery coal mine (the Vickery Project).

In Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, the Federal Court found the Minister has a duty to take reasonable care to avoid personal injury to the Children, when deciding whether to approve the mine expansion under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

While Justice Bromberg’s findings about the existence of a duty of care were limited to this mine expansion, his Honour has sought further submissions from the parties, including whether the Minister’s duty extends beyond the Vickery Project expansion. While it remains to be seen what further orders will be made by the Federal Court, proponents for any projects that emit greenhouse gases need to be aware of this finding of the Minister’s duty to avoid climate harm to Australian children when deciding to approve a controlled action under the EPBC Act. 

The facts

Whitehaven has a development consent under the Environmental Planning and Assessment Act 1979 (NSW) for the Vickery Project. Coal production from the Vickery Project has not started. 

Whitehaven applied to the Minister to expand and extend the Vickery Project as a controlled action under the EPBC Act (Extension Project). If approved, the Extension Project would increase the total coal extraction of the Vickery Project from 135 to 168 million tonnes (Mt). When combusted, this additional coal from the Extension Project will produce about 100 Mt of carbon dioxide (CO2).

The Minister has before her the decision to approve or refuse the Extension Project under sections 130(1) and 133 of the EPBC Act. 

The applicants contended that the Minister has a duty to exercise her power under the EPBC Act with reasonable care to not cause the Children harm from the extraction of coal and the resulting emission of CO2 into the earth’s atmosphere. 

The applicants’ case is that the scientific evidence demonstrates the plausible possibility that the effects of climate change will bring a future world in which the earth’s average surface temperature reaches approximately four degrees above pre-industrial temperature levels by 2100. The applicants relied on unchallenged evidence about scenarios of an average global surface temperature rise from CO2 emissions, and the impacts these scenarios will have for the Children. Their evidence included the probability of a two degrees future world and what would need to be done to achieve it, thereby avoiding a four degrees future world.  

The Minister called no evidence but contended that the 100 Mt of CO2 would be emitted compliantly within the Paris Agreement and thus within the target of less than two degrees.   

Justice Bromberg accepted the applicants established the climate change risk. His Honour found no evidence that the 100 Mt of CO2 emitted from the Extension Project would be included within the available carbon budget necessary to achieve a two degrees target. 

Duty of care 

As the applicants were seeking to have a novel duty of care recognised, Justice Bromberg had to undertake a multi-factorial assessment of the considerations (the salient features) relevant to imputing this legal duty upon the Minister.  This included the following: 

  • Reasonable foreseeability

Justice Bromberg concluded it was reasonably foreseeable for the Minister that the increased CO2 in the Earth’s atmosphere, and the consequential increase in global average surface temperature, would expose the Children to risk of death or personal injury, including through heatwaves or bushfires. When applying this to the additional 33 Mt of coal extracted from the Extension Project, his Honour found that this was still reasonably foreseeable. His Honour described this as a case where the foreseeability of the probability of harm from the defendant’s conduct may be small, but where the foreseeable harm, should the risk of harm crystallise, is catastrophic.  

  • Control

Justice Bromberg concluded the Minister has substantial and direct control over the real risk of harm to the Children that would flow from her approval of the Extension Project because it is her exercise of power which creates the risk. His Honour rejected the Minister’s submission that she had no control over the prospective harm, due to the links and contingencies in the causal chain between her decision and the harm to the Children. The Minister’s knowledge of the risk of harm supplemented the affirmative existence of the duty of care. 

  • Vulnerability

The evidence demonstrates that the Children are extremely vulnerable to a real risk of harm from climate change, in what his Honour described as “the greatest inter-generational injustice ever inflicted by one generation of humans upon the next”. 

  • Coherence

Justice Bromberg rejected the Minister’s argument that this duty of care is incoherent with the EPBC Act and more generally with public law principles. The imposition of the duty of care does not prevent the Minister from performing her duty by determining the application before her. 

After assessing the salient features, his Honour found that by reference to the contemporary social conditions and community standards, a reasonable Minister for the Environment ought to consider the Children when facilitating the emission of 100MT of CO2. It followed that the Minister had a duty to take reasonable care to avoid causing personal injury to the Children when deciding whether to approve the Extension Project under the EPBC Act. 

No injunction 

The applicants sought an injunction to restrain the Minister from an apprehended breach of the duty of care they assert she owes to the Children. Such an injunction would mean the only decision the Minister could make would be to not approve the Extension Project. 

Justice Bromberg refused to grant the injunction. To assess the prospect of a breach, the court would also need to assess what the Minister is likely to do now,  with the new information from the proceedings and knowing that she owes a duty of care to the Children. His Honour found it undesirable to pre-empt the Minister’s decision, and that it would be more appropriate to assess whether any breach should be restrained once it is known what the Minister proposes to do in relation to the Extension Project. His Honour noted the Minister may consider publishing a proposed decision and inviting public comment under the EPBC Act. 

What happens next?

Having found the Minister owes a duty of care, and refusing to grant an injunction, Justice Bromberg has called for further submissions from the parties. This includes submissions on orders in relation to the representative nature of the proceedings brought by the applicants, and in relation to costs. 

Justice Bromberg did not make a declaration on the duty of care owed by the Minister, seeking further submissions from the parties on the utility and terms of the declaration. In the decision, his Honour confined his findings about the existence of a duty of care to the approval of the Extension Project. However, his Honour flagged that if those findings give rise to a duty of care that can be described in terms which extend beyond the Extension Project , he will consider a wider description, after receiving the further submissions. 

It remains to be seen what further orders will be made by the Federal Court about the extent of the Minister’s duty, or whether the Minister will appeal.

Proponents for any projects that emit greenhouse gases need to be aware of this finding of the Minister’s duty to avoid climate harm to Australian children  when making a decision to approve a controlled action under the EPBC Act. 

For more information, please contact our Resources and Energy team. 
 

Authors
Damian Roe
Partner
Damian is a Partner of our leading Resources, Energy and Projects practice.
Jonathan Fulcher
Partner
Jonathan is a Partner and the head of our leading Resources and Energy practice in Brisbane and is also the leader of our Native Title practice.
Elizabeth Harvey
Senior Associate
Elizabeth is a Senior Associate in our Resources and Energy practice.

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