So, who actually does have the ‘duty of care’? Who is responsible for tomorrow?

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By David Salt

The Federal Minister for the Environment does not have a duty of care to protect young people from the harms of climate change. This was the unanimous finding of the Federal Court earlier this week. It was a finding that left high school students crying, legal scholars frowning and Sussan Ley, the Federal Minister for the Environment, beaming.

Given this, the big question I want answered is, if not the Minister for the Environment, then where (and with whom) does the ‘duty of care’ lie?

Many reasons

Much has been made about the Court decision and why the judges overturned an earlier decision that the Minister did have a duty of care when approving fossil fuel developments. (And for one of the best analyses of the legal case around this issue I’d point you to the excellent Sustainability Bite Does a ‘duty of care’ to future children make any difference to environmental approvals? written by my colleague Peter Burnett; who, incidentally, predicted exactly this outcome.)

Another excellent summary of this decision can be found at The Conversation (Today’s disappointing federal court decision undoes 20 years of climate litigation progress in Australia) which neatly brings together the facts, history and findings surrounding this appeal.

At the end of the day the three judges each ruled in favour of the Environment Minister who, in her appeal against the original finding, contended that the stated duty should not be imposed on the Minister. However, each judge had their own reasoning for why this should be.

One judge said that climate change is a matter for government, not the courts. The ‘duty’ involves “questions of policy (scientific, economic, social, industrial and political) […] unsuitable for the Judicial branch to resolve”

Another said there wasn’t a direct link between minister’s power to approve the coal mine and the effect this would have on the children.

And the third said the EPBC Act (under which the fossil fuel development was being approved and which the Minister is responsible for) doesn’t create a duty-of-care relationship between the Minister and the children. He added that establishing a standard of care isn’t feasible and that it’s not currently foreseeable that approving the coal mine extension would cause the children personal injury, as the law is understood.

If not the Minister, then who?

All well and good, and I expect this makes much sense to all the lawyers out there. But, for me, it begs the question: if not the Minister, then who should hold the duty of care?

If we are allowing a development today that is harming the people of tomorrow, then shouldn’t someone be responsible for allowing this development to proceed?

Of course, the people of tomorrow include the youth of today. Some of these young people are profoundly worried about what they are seeing around them, about what the science is telling us.

For God’s sake, it’s not even being worried about gloomy forecasts; society is actually experiencing the horror of climate change as we speak. Climate enhanced flooding is wiping away families, businesses, hopes and histories up and down Australia’s east coast. Climate-enhanced wildfires are scorching communities, forest biomes and wildlife with a ferocity and at a scale never before witnessed. We’re losing our coral reefs, our wetlands and woodlands. We’re trashing our natural heritage and our prospects for the future.

Young people see this, they can connect the dots; and they despair at the denialism and prevarication being shown by government. Many are self-organizing and protesting on the streets calling for change (only to be rebuked by our Prime Minister).

Others are exploring different pathways to get the ‘grown ups’ to do the right thing for the future they will inherit; and one of these pathways involves testing our laws about who is taking responsibility for developments (like new coal mines and gas projects) that will only be adding to the already catastrophic level of carbon emissions our species are producing.

Where to look

I don’t appreciate the detail of the law on this but, like the students at the centre of this current court case, it seems to me that our political representative who has been made Minister for the Environment is a logical place to aim.

But, as the courts have ruled, this is a question of policy, not law! This is for the politicians to fix up.

What?

Our political leaders are refusing to engage with climate change on any meaningful level. They’re happy to fight about over-the-horizon net zero targets that they will never be responsible for. They pay lip service to the mounting scientific evidence while happily turning a blind eye to the growing pile of misinformation and corporate malfeasance seeking to distract us from any measure to constrain (or reduce) our carbon economy.

If not the Environment Minister, then who? Our Prime Minister or the Minister for Emissions? Their track record for lies and integrity is even worse than our Environment Minister’s.

Is it the responsibility of our corporate leaders and billionaires? Seems their short-term interests are tied to unbounded economic growth, so I doubt we’ll see much effort here.

Or should we look to the world government to impose effective and just sustainability limits on us all. Sorry, I forgot; there’s no such thing as a world government (though conspiracy theorists like to pretend that one exists).

There are, of course, international agreements that sovereign nations can enter into on how we care for the environment and the future. Think Ramsar Convention, Convention on Biological Diversity, Kyoto Protocol and the Paris Agreement; Australia has signed up to all of them, and then failed to meet our commitments on any of them, just like all other nations.

At the end of the day, whether you’re thinking (or acting) globally or locally, no-one is actually responsible for tomorrow. ‘Duty of care’ for tomorrow is more a ‘vibe*’ than an ‘actionable’ item.

If duty of care on climate change is a question of policy more than a question of law then our whole polity is failing us and is in need of transformation. Who’s up for some serious reform?

*‘Vibe’ is a particularly Australian term arising from the cult classic 1999 movie The Castle in which a lawyer, Dennis Denuto, struggles to articulate to the judge why his clients, the Kerrigans, should be allowed to keep their home and not be compulsorily acquired for an airport development. Denuto says: “In summing up: it’s the Constitution, it’s Mabo, it’s the vibe and… no, that’s it. It’s the vibe.”

Banner image by byrev @ Pixabay

Does a ‘duty of care’ to future children make any difference to environmental approvals?

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By Peter Burnett

Do you think our political leaders, our representatives, owe the children of the future, our children, a duty of care? I think most people would.

But what does that actually mean in practice?

Should a duty of care apply if the political leader is wearing a second hat as a regulator? What if the law the regulator is applying says nothing about a duty of care?

Our legal system is grappling with this issue right now.

Last year, in a case known as Sharma v Minister for the Environment, the Federal Court of Australia found that the environment minister, in her statutory capacity as a regulator under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), owed Australian children a common law (ie, non-statutory) duty of care not to injure them by approving a development that would exacerbate climate change.

At the time, the minister was considering making a statutory decision to approve an extension to the Vickery coal mine in NSW.

Is it okay to develop a coal mine if it results in increased emissions?

As I wrote in an earlier blog, the implication of the case for decisions under the EPBC Act (and other regulatory laws) was that regulators, when considering whether to approve a development, must now turn their mind to an additional mandatory consideration, the likelihood of harm, at least to children, if not others.

In that discussion, I argued that the decision was legally incorrect and would likely be overturned on appeal. In fact, an appeal has been heard, though not yet decided.

In the meantime, the original decision stands and must be applied — ie, regulators must consider the likelihood of future harm to children from a development.

What does this mean in practice? Well, documents released recently under freedom of information (FoI) laws have revealed how the environment minister was advised by her department concerning this new-found duty of care.

The documents concern another coal mine extension, this time by Glencore of its Mangoola mine in the NSW Hunter Valley.

For completeness, the Court also found that human safety is a mandatory relevant consideration under the EPBC Act, including when affected by the emission of greenhouse gases (GHG).

Rather than this being part of a duty of care, the Court said this implication was found in the ‘subject-matter, scope and purpose’ of the EPBC Act.

As a result, if a proposed development in fact posed a ‘real risk’ to human safety of Australians (not just children) the Minister should give ‘at least elevated weight’ to the need to avoid that risk.

This part of the decision may be less vulnerable on appeal because it results from the Court’s interpretation of the Act, rather than the (more radical) application of a duty of care from outside the Act.

Requirements on Minister: EPBC Act plus duty of care

The EPBC Act contains a fairly standard process for granting environmental approvals, based on considering an environmental impact assessment (EIA) and applying various statutory criteria.

Although the EPBC Act does not extend directly to climate impacts, it does cover indirect impacts on things that it does proect, eg threatened species. And GHG can have an indirect impact on threatened species, by changing the climate.

So, it is common under the EPBC Act to consider climate impacts from projects that are large GHG emitters, like coal mines.

Consistent with the Sharma decision, when environment minister Sussan Ley considered the Mangoola mine, she considered, in addition to the usual statutory matters, her duty of care to avoid causing harm to Australian children, as a result of GHG emissions from both the mine itself (scope 1 and 2) and the coal it would produce (scope 3).

Minister’s decision on climate impacts of mine

The minister decided that, even having regard both to her additional duty of care to children and the implied statutory duty to consider human safety, it was not necessary to refuse the mine extension, or to impose additional climate-related conditions.

While these duties might have been new, it turned out that considering those duties simply took the minister down the same path of reasoning that she and her predecessors had used before when considering indirect climate impacts.

This reasoning has been validated by earlier court decisions and it goes like this:

First, if the mine didn’t go ahead, potential customers would simply burn coal from other mines, with no overall difference for the climate (the market substitution argument).

Second, if this is wrong, and the mine does increase GHG emissions, national and international policies, such as ‘nationally determined contributions’ under the Paris Agreement, would prevent overall emission increases, because countries have agreed to phase coal down (the climate policy argument).

And Ley added a new argument: the coal phase down would be reinforced by private company commitments: mine proponent Glencore had itself adopted a target of reducing total global emissions from its operations (scope 1, 2 and 3) by 50% by 2035, reducing to net-zero by 2050.

Just more boxes to tick? Is that it?

So, at the end of the day, even considering a new duty to children and giving ‘elevated’ weight to human safety consistent with the Sharma decision, the minister ended up at the same place as earlier decisions.

The mine could go ahead because it would not increase emissions, or, alternatively, any increase would be ‘extremely small’.

Plus, of course, there were social and economic benefits that made approval, on balance, ‘appropriate’.

It turned out that the duty of care to children and human safety were just two more boxes to tick.

So, does it matter then whether the government wins or loses the Sharma appeal if the result is the same?

You might think not, but I can however see two reasons why it matters.

It does matter

First, Sharma found the environment minister had a duty of care. While this duty might not change environmental outcomes now, if the duty is upheld it will invite compensation claims in future decades, based on harm generated by approval decisions taken now.

This creates risks for government.

The second implication is environmental and political. If the duty of care to children remains, this will confirm a higher profile for the climate implications of development decisions. I think this increases the chances that someone will take the ‘market substitution’ and ‘climate policy’ arguments to the High Court.

I know I told you that these arguments had already been accepted in earlier Federal Court decisions. But I think there are grounds for challenging this.

Why? I’ll tell you in another blog, but a High Court appeal would put climate change issues before the highest court in the land. And that’s not something to be sneezed at.

The implications of this? If the children win again in court, I think the government will move in Parliament to legislate these legal and political risks away.

So the children will probably lose even if they win.

Banner image: On the one hand coal gives us ‘cheap’ energy. On the other, it emits a lot of GHG likely to harm future generations of children. (Image by Pavlofox @ Pixabay).