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).