Climate Law: An Analysis of the Australian Court Decision

Government has a duty to protect young people from the climate crisis

by Virginia Raffaeli

Australia is one of the world’s largest exporters of coal and natural gas and has been criticised by climate scientists and other states for not adopting ambitious climate policies and greenhouse gas emission reduction targets [1, 2].

However, on 27^th May 2021, the Australian Federal court delivered a landmark judgment, finding that the Federal Environment Minister owes young people a duty of care to protect them from harm resulting from the climate crisis [3, 4]. This judgment could have significant consequences for the production of coal and other fossil fuels in Australia [5].

The judgment

Eight Australian teenagers sought an injunction on behalf of “all young Australians” to prevent the Australian Federal Environment Minister Sussan Ley from approving an expansion by Whitehaven Coal of the Vickery coal mine in New South Wales, arguing that children have a special vulnerability and that the Minister owed all children in Australia a common law duty of care to protect them from the future harm of climate change [6, 7]. 

They demonstrated that the expansion of the mine would have an impact on climate change, since the extraction of an additional 33 million tonnes of coal could lead to an extra 100 million tonnes of CO₂ – about 20% of Australia’s annual climate footprint – being released into the atmosphere [8, 5, 7]. The evidence submitted also showed that one million of today’s Australian children will suffer at least one heat-stress episode that will require acute hospital care during their lifetimes [3]. Many thousands will die prematurely and suffer significant economic damage [3]. 

As stated by Justice Modercai Bromberg, “as Australians know their country, Australia will be lost and the world as we know it gone as well”, with  the Great Barrier Reef and most of Australia’s eastern eucalypt forests no longer existing due to repeated, severe bushfires [3]. Importantly, he added that climate-related disasters and deaths will “largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest intergenerational injustice ever inflicted by one generation of humans upon the next” [3].

Justice Bromberg thus found the Minister did owe young people a duty of care to not act in a way that would cause them future harm and that she had knowledge of the risk of harm [3, 7, 6]. However, he was not satisfied that, in the light of the information made available to her through these proceedings, it was reasonably foreseeable that Minister Ley would breach that duty of care and thus did not grant the injunction [3, 7, 5, 9]. He also found that issuing the injunction would prevent the minister from making a proper decision [3, 5].

The judge ordered the parties to make further submissions on how this novel duty of care would be impacted by the expansion of the mine [3, 8, 9]. As of yet, it is unclear whether the expansion will go ahead [5].

What next?

According to David Barnden, the children’s lawyer, despite this conclusion the judgment was a victory, and carries significant consequences [7, 6]. Firstly, it moves past the previous reluctance of the courts to get involved in climate policy and opens the door to climate-based litigation under the law of negligence, both against the government and, possibly, against private companies [10, 8, 4]. Secondly,  the federal government will have to consider the impacts of the climate crisis on young people when making decisions on coal mining projects [5, 6].

From now on, not only must the government exercise its duty of care towards all Australians when making mining-related decisions, but since citizens will be able to sue the government for damages caused by climate change, on the grounds that it was aware of the risks of actions which contribute to increasing carbon emissions, the approval of fossil fuel-related projects will be much more difficult [6, 2]. The effect of this judgement will have far reaching consequences globally. 

References

[1] McGuirk R. ‘Australian teenagers lose bid to block coal mine expansion’, AP News (27 May 2021), URL: https://apnews.com/article/australia-climate-change-environment-and-nature-business-c86a529d6b5cff80d21e23ad0aee7877 (last accessed 14 June 2021)
[2] Russell C. ‘Column: Eight kids and a nun may have doomed coal’s future’, Reuters (31 May 2021), https://www.reuters.com/business/energy/eight-kids-nun-may-have-doomed-coals-future-russell-2021-05-31/ (last accessed 14 June 2021)
[3] Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, paras. [490]-[492]; [291]; [293]; [290]; [286]; [503] [510]; [508]; [516],  URL: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0560 
[4] Schuijers L., ‘In a landmark judgment, the Federal Court found the environment minister has a duty of care to young people’, The Conversation (27 May 2021), URL: https://theconversation.com/in-a-landmark-judgment-the-federal-court-found-the-environment-minister-has-a-duty-of-care-to-young-people-161650 (last accessed 14 June 2021)
[5] Mazengarb M. ‘Children win landmark climate change court case against Australian minister’, Renew Economy (27 May 2021), URL: https://reneweconomy.com.au/children-win-landmark-climate-change-court-case-against-australian-minister/ (last accessed 14 June 2021)
[6] Dillon J. ‘Australia: Australian government has a duty of care to protect children from climate change’, Mondaq (3 June 2021), URL: https://www.mondaq.com/australia/climate-change/1076118/australian-government-has-a-duty-of-care-to-protect-children-from-climate-change (last accessed 14 June 2021)
[7] Morton A. ‘Australian court finds government has duty to protect young people from climate crisis’, The Guardian (27 May 2021), URL: https://www.theguardian.com/australia-news/2021/may/27/australian-court-finds-government-has-duty-to-protect-young-people-from-climate-crisis (last accessed 14 June 2021)
[8] Timms P. ‘Australian teenargers’s climate change class action case opens ‘big crack in the wall’, experts say’, ABC News (27 May 2021), URL: https://www.abc.net.au/news/2021-05-27/climate-class-action-teenagers-vickery-coal-mine-legal-precedent/100169398 (last accessed 14 June 2021)
[9] O’Malley N. ‘Politicians have duty of care to protect children from climate harm, court finds’, Sydney Morning Herald (27 May 2021), URL: https://www.smh.com.au/environment/climate-change/politicians-have-duty-of-care-to-protect-children-from-climate-harm-court-finds-20210527-p57vqu.html (last accessed 14 June 2021)
[10] Peel J., Neville B., Markey-Towler R. ‘Four seismic climate wins show Big Oil,Gas and Coal are running out of places to hide, The Conversation (31 May 2021), URL: https://theconversation-com.cdn.ampproject.org/c/s/theconversation.com/amp/four-seismic-climate-wins-show-big-oil-gas-and-coal-are-running-out-of-places-to-hide-161741 (last accessed 14 June 2021)

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Virginia Raffaeli is a law and policy researcher currently working for the Geopolitics and Global Futures Programme of the Geneva Centre for Security Policy (GCSP) in Switzerland. Before, she worked as a Legal Intern for the Center for International Environmental Law (CIEL), focusing on the impact of climate change on land in the context of indigenous and women’s rights. She holds an LL.B. from the University of Durham and an LL.M. in International Humanitarian Law and Human Rights from the Geneva Academy.