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).

Sharma v Minister for the Environment

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.

Image by Wi Pa from Pixabay