Federal Court Justice Mordecai Bromberg formally declared on July 8 that the federal environment minister has a duty of care “to avoid causing personal injury or death” to children, ordinarily residing in Australia, when considering the approval of fossil fuel projects.
The judge made the declaration on May 27, when he handed down what is now referred to as the Sharma decision. It found that the minister must consider the harm that could be caused by carbon emissions released into the Earth’s atmosphere when approving such projects.
The landmark case was brought by eight young people, who, due to their age, were represented by Sister Marie Brigid Arthur. They sought the duty of care declaration, as well as an injunction against the planned extension of the Vickery coal mine, that operates close to Gunnedah in northern New South Wales.
In terms of the injunction on the 2016 proposal — which has been approved by the NSW Department of Planning — Bromberg decided against it, leaving it up to federal Environment Minister Sussan Ley to exercise her newfound duty of care in relation to the coal mine extension decision.
The Federal Court ruling is significant as it deems the minister negligent if they do not uphold the duty of care to children in relation to fossil fuel projects. Further, it recognised the validity of climate scientists’ warnings about the risks global warming poses to the planet.
Science is in
“The judgement was clear and based on the science — which is also really clear — in that we are putting future generations at huge risk from the rapidly changing climate system that we are driving,” Australian National University (ANU) climate researcher Professor Will Steffen told Green Left.
Most of the evidence presented in Sharma was based on a December 7, 2020 report, authored by Steffen, who is also a founding councillor of the Climate Council.
The leading climate and Earth Science expert has been involved in the production of five of the Intergovernmental Panel on Climate Change (IPCC) reports since 2000, including the 2018 report, which had a significant impact globally in acknowledging the climate crisis.
“The science is unequivocal: human emissions — greenhouse gases — are rapidly changing the climate leading to severe bushfires, bleaching of the Reef and extreme heat,” Steffen said. “That’s not even argued anymore.”
Steffen’s evidence to the court demonstrated that the Paris Agreement target of limiting global temperature rise to “1.5°C above the pre-industrial level” is now unlikely. The report said that the “best future stabilised global average surface temperature” is to keep it below 2°C.
However, if the temperature does rise above 2°C, there is a risk that becomes much more substantial if it increases to 3°C. The Earth’s natural systems will “propel global surface temperatures into an irreversible 4°C trajectory”, he said, which would likely hit by 2100.
Hothouse Earth
“The legal part is clear, in that people who are in a position to decide on these fossil fuel developments do have a duty of care to the next generations,” Steffen said. “It is exactly these developments, that we keep allowing, that are driving climate change.”
If the minister does approve the Vickery coal mine extension, it would lead to an extra 33 million tonnes of coal being extracted over the project’s 25-year lifecycle. This would contribute 100 million tonnes of new carbon dioxide into the Earth’s atmosphere.
In his report, Steffen outlined the Hothouse Earth scenario that involves human-induced emissions triggering feedback processes that compound climate change. This may then lead to a “tipping cascade” that propels greater temperature rises.
The case put to the court outlined that even though the contribution from the extension of Vickery coal may be “tiny”, it could still be considered as leading to a 4°C rise — an argument the court found plausible.
“We put together the scientific chain of logic that goes from decisions on fossil fuel projects, all the way through to what it means, in particular, for young people who face an extremely difficult future,” Steffen said. “It’s really good to have that scientific argument recognised legally.”
Pre-emptive approach
Bromberg ruled the environment minister has a duty of care when exercising the powers contained within sections 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBCA), which permits them to approve fossil fuel projects.
“The strategy behind the case is very clever,” Southern Cross University Law Discipline’s Associate Professor Nicole Rogers told Green Left. “To construct it around a common law duty of care that applies in the exercise of statutory powers is a whole new ball game.”
A “duty of care” is a legal obligation not to cause harm to another person, either by action or omission. Where a duty of care is owed by an individual and it is not fulfilled, they are then considered to be negligent, which means they can be held accountable.
“If you look at the EPBCA and the minister’s powers to approve greenhouse gas-emitting projects, litigants were previously mounting judicial review proceedings after the approvals of projects had been made and that’s a much more restrictive option,” Rogers said.
However, the Sharma decision reversed this to the pre-approval application of the duty of care, so the minister must take these considerations into account prior to greenlighting any coal mine project, which, if approved, could lead to legal action that may find them liable.
Protecting future generations
“Perhaps the most startling of the potential harms demonstrated by the evidence before the court, is that 1 million of today’s Australian children are expected to suffer at least one heat-stress episode serious enough to require acute care in a hospital,” Bromberg said in summarising the case.
The day after Bromberg delivered the court’s declaration, Ley indicated that she would be appealing the decision to the full bench of the Federal Court.
Rogers said the government’s appeal argument could be along the lines that a common law duty of care (a law based on legal precedents established by the courts) does not apply to the exercise of statutory powers (laws that have been enacted by parliament).
However, she underscored that the ruling, as it sits, does not appear to be anything extraordinary.
“Of course, today’s government has a duty of care to young people to ensure the decisions they are making are not going to facilitate this Hothouse Earth scenario, with all the attendant deaths and harm that would be visited upon this generation and future generations,” Rogers concluded.
[Paul Gregoire is a Sydney-based journalist who writes for Sydney Criminal Lawyers.]