A big win for children on climate change, but for how long?
By Peter Burnett
Never underestimate children. Last week I was telling my family, over dinner, about a recent decision by Justice Bromberg in the Federal Court, concerning climate change. You’ve probably seen media reports of the case, Sharma v Minister for the Environment; in part because it features a group of children.
“The case was brought by half a dozen teenagers,” I pronounced, pleased to be able to talk about my work, “represented by a nun in her eighties.
“There were eight children,” corrected my 11-year-old granddaughter, who is in Year 6.
Well picked up granddaughter, there were indeed eight.
While my main purpose here is to discuss the court case, I have to say it’s heart-warming to see such awareness in one so young. After all, the case concerned her future. Yet it is also heart rending, given the Court’s finding that the climate future facing today’s children was ‘potentially catastrophic’.
The court challenge
The children sought a declaration that the federal environment minister owed them a duty of care in relation to a proposal by a subsidiary of Whitehaven Coal to undertake a major expansion of its Vickery mine in northern NSW.
The Environment Minister came into the equation because the mine could only proceed if she approved it under the EPBC Act, an approval the minister had not yet given.
The expansion would extract an additional 33 million tonnes of coal over 25 years, which would generate 100 million tonnes of C02 when burned.
This is equivalent to about a quarter of Australia’s annual emissions. Although the Court found that, in isolation, these emissions would result in a global temperature increase of only one eighteen-thousandth of a degree Celsius, it rejected an argument that it should disregard this increase as negligible under a legal rule known as de minimis.
The argument for the Minister owing a duty of care was that potentially catastrophic future climate impacts were the foreseeable result of approving the mine and that the children were so vulnerable and so closely and directly affected by a decision under the control of the Minister that she ought to take reasonable care to avoid personal injury to them.
The Minister’s arguments in reply were based on the EPBC Act being a statutory scheme that should, for reasons of both principle and legal interpretation, be regarded as not amenable to common law principles of negligence. A common law duty of care would, the Minister argued, skew her regulatory task.
Interestingly, the minister did not challenge evidence from Emeritus Professor Will Steffen and other experts about the future impacts of climate change on the children. Clearly the government did not want to open itself to accusations of denialism by putting the facts in question, and so it relied exclusively on legal arguments.
The court decision
The Court accepted the argument that the minister owed the children a duty of care not to injure them when exercising her power under the EPBC Act to approve or not approve the mine extension. However, because the judge was not satisfied that there was a reasonable apprehension that this duty would be breached (basically because it was too early to know what the minister might decide), he refused to grant an injunction.
This simple decision sits atop nearly 150 pages of complex legal analysis about the law of negligence, the circumstances in which the courts might find a novel duty of care, such as the one here, and the interaction between statutory schemes such as the EPBC Act and the common law of negligence.
Implications of the decision
There’s enough raw material in this decision for a PhD thesis. So for present circumstances, let’s just look at implications and prospects.
If the decision stands, the implication of the case for decisions under the EPBC Act is that the Minister, when considering whether to approve a development, must now turn her mind to an additional mandatory consideration, the likelihood of personal injury, at least to children if not to others.
This would most likely be of relevance in situations similar to this case; ie, to very large fossil fuel projects, given their climate impacts. The ironic fact that the EPBC Act does not directly regulate climate impacts would not affect this outcome.
It is also conceivable that the precedent might apply to other projects with very large impacts, for example where a project might lead to extensive contamination of the waters of the Great Artesian Basin.
The decision also has potential implications far beyond the EPBC Act. If this duty exists under that Act, it may also apply to other government decisions, possibly even to Cabinet and Budget decisions. And if the duty applies to the minister in approving a mine, it may also apply to those, like Whitehaven, who build and operate mines.
The prospects of the decision standing
This is only the latest in a series of cases which have put fairly adventurous arguments before the courts in the hope of giving the EPBC Act some real teeth. Unlike most of the other cases, on this occasion the arguments have been successful.
However, I think this decision will be appealed and overturned. The arguments would be complex, but in my view, the one most likely to succeed is straight-forward: that the EPBC Act contains a specific direction to the minister to the effect that, in deciding whether or not to approve a development, he or she must only consider the things listed in the relevant division of the Act. That division makes no mention of a duty of care.
If I am right, in one sense it will be back to business as usual, with the Environment Minister approving individual developments on the basis that their impacts are ‘not unacceptable’, while the environment continues to decline.
However, climate litigation is becoming more common around the world as climate risks and impacts increase. Corporations are becoming increasingly responsive to those risks. Even if the case is reversed on appeal, the decision will have given Australian businesses pause for thought and can only add to the momentum towards ‘net zero by 2050′, even in the absence of a government policy to that effect.
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