The Court in Minister for the Environment v Sharma [2022] FCAFC 35 recently ruled against a duty of care of the Minister for Environment to protect children under the age of 18 from the physical, mental and economic harms of climate change. The undisputed status of expert evidence used in the original judgement may now help pave the way for a High Court challenge.
Background – Federal Court Decision
The Vickery Extension project proposes to construct an open-cut coal mine 25km north of Gunnedah NSW. Vickery Coal Pty Ltd was awaiting approval for the project by the Minister for the Environment, subject to the provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’).
In 2021, the eight child applicants sought to prevent the Minister approving the project on the basis that allowing the project extension would breach a duty of care owed by the Minister to all children residing in Australia. The applicants argued that the proposed further extraction of coal by Vickery would increase the concentration of atmospheric CO2 with catastrophic outcomes for the environment within the 21st century, and hence also for the physical, mental and economic safety of the represented children in the same period.
The Applicants relied on a common law duty in sections 130 and 133 of the EPBC Act that required the Minister to exercise her powers to take reasonable care to avoid injury or death to Australians under 18 years of age. They sought a recognition of this duty and declarative and injunctive relief to compel the Minister to act on the purported duty.
Decision and Expert Evidence
The Federal Court affirmed the duty of the Minister to the plaintiff class.
The plaintiffs relied on the evidence of Professor William Steffen of Australian National University’s Fenner School of Environment and Society. His evidence covered several ‘future world’ scenarios based on the Intergovernmental Panel on Climate Change’s models of the impact of CO2 emissions on the Earth’s environmental system. Professor Steffen opined that a 2 degrees Celsius future is now almost unavoidable but that the failure to stabilise emissions and climate with this increase would lead to an irreversible 4 degrees Celsius increase and ‘Hothouse Earth’ scenario, in which the intensity and magnitude of ecological disasters and natural food and water scarcity would escalate.
To the extent that any contribution to the accumulation of emissions would increase the likelihood of or exacerbate this latter scenario, Justice Bromberg concluded that the harm of approving the mine and its release of 100Mt of CO2 was reasonably foreseeable to the Minister. [29]-[90]
Full Court of the Federal Court Decision
All members of the Full Federal Court ruled against a duty of care but upheld the reliability of the expert evidence from the original judgement.
The decisions against the recognising a Ministerial duty focused on three key issues:
- The undermining of democratic process that judicial decision-making and influence on the principles of government executive action (‘high policy’) in this instance might create;
- The unsuitability of the EPBC Act, upon a proper interpretation of its provisions in the context of its functions and purposes, to support a wider duty of care by the Minister to the plaintiff class; and
- The unprecedentedly wide scope of causation and liability in the law of negligence that the recognition of a duty of care would establish.
With regard to this final issue, Chief Justice Allsop and Justices Beach and Wheelahan each emphasised the unsuitable confinement of the matrix of reasonable foreseeability, cause and harm in tort law when used to locate responsibility for climate change. Recognising proximity between the Minister’s actions and global climate change would, for the court, unreasonably create liability for harm the scale, timeframe, and form of which the Minister would be largely unable to determine or control.
High Court appeal likely
The latest decision of the Federal Court, despite its emphatic refusal to uphold a Ministerial duty of care under the EPBC Act, nonetheless leaves the expert testimony of the plaintiff class undisputed.
Dr Steffen’s evidence effectively proscribed real and significant harm which the Federal Court Justices recognised that the court may not be able to address through established legal mechanisms. A High Court challenge now seems likely particularly given Justice Beach’s comments on the prospect of the creation of “sustainable duties of care” for “wide-scale consequences that transcend confined temporal boundaries and geographic ranges” that a High Court decision could offer.
Australian Courts may look to Recent major European cases on climate change that identified a duty of care by its state bodies to protect citizens from the existential threat of climate change. These cases however identified the ministerial or state duty in the state’s adoption of the European Convention on Human Rights, specifically in the “right to life” and the “right to respect for private and family life” in Articles 2 and 8. (See: State of the Netherlands v. Urgenda Foundation, ECLI:NL:HR:2019:2007; VZW Klimaatzaak v Kingdom of Belgium & Others, no. 2015/4585/A (June 17, 2021); Notre Affaire à Tous and Others v. France, No. 1904967, 1904968, 1904972, 1904976/4-1, Paris Administrative Court (3 February 2021)).