17 Jun 2021In what has been hailed as a worldwide landmark judgement, in May 2021 the Federal Court found the government has a duty of care to consider the impact of climate change on children before making environment-related decisions.
The unusual case was brought by eight teenagers, aged 13 to 17, and an 86-year-old nun acting as their litigation guardian. Together, they initiated a class action suit against Whitehaven Coal, which is seeking to expand its Vickery coal mine near Gunnedah in northern NSW. (See Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560.)
The youngsters, through their lawyers, argued that Environment Minister Sussan Ley had a duty under common law to protect young people from future harm that is a result of climate change; harm that will be exacerbated if the coal mine expansion goes ahead.
Court and government recognise effects of global warming
The judge accepted evidence that global warming was unlikely to be halted before it passes the target of 1.5 degrees. Additionally, if global warming passes two degrees, tipping points would be triggered, causing global temperatures to rise by four degrees by the end of the century. This, in turn, would unleash massive environmental destruction and harm to all living creatures, including humans.
During the court hearing, the government said it accepted that earth’s temperatures are increasing “and that humans are primarily responsible”. However, the minister argued that the effect of the expansion of the coal mine would be tiny in global terms.
Government must ensure its decisions avoid adverse impact of climate change on children
In his ground-breaking judgement that could impact government policy, the judge ruled that the minister had a duty of care to ensure that no action is taken when there is a risk of future harm to young people.
With four eminent climate scientists appearing in the case, the court heard that the expansion of the mine could lead to an extra 100 million tonnes of carbon dioxide being released into the atmosphere, as the coal is exported and burned to generate electricity and in blast furnaces.
The court examined in great detail the potential impact of the expansion of the coal mine, and the impact it would have on climate change. Referring to the Environmental Protection and Biodiversity Conservation Act 1999, the judge stated:
I have concluded that the applicants have established that the Minister has a duty to take reasonable care to avoid causing personal injury to the Children when deciding, under section 130 and section 133 of the EPBC Act to approve or not approve the Extension Project.
Coal mine expansion presents risk of harm to future generations
The judge stated the potential harm children faced from climate change could be “catastrophic”, particularly if average temperatures reach three degrees Celsius above pre-industrial levels:
The risk of harm to the Children is not remote, it is reasonably foreseeable and it is therefore a real risk… The Minister has direct control over the foreseeable risk because it is her exercise of power upon which the creation of that risk depends. To my mind, there is therefore a direct relation between the exercise of the Minister’s power and the risk of harm to the Children resulting from the exercise of that power. The entirety of the risk of harm flowing from that exercise of power is therefore in the Minister’s control.
The judge found that if global temperatures increase beyond two degrees Celsius, the impact of climate change on children would be disastrous. It would mean that a million of today’s children in Australia would suffer at least one heat-stress episode that requires acute care in a hospital. Furthermore, many thousands would suffer premature death from heat stress or bushfire smoke.
Application for injunction against coalmine expansion not granted
This was an important decision, possibly a world first, where a court ruled that the government owes a duty of care to recognise the impact of climate change on children and must not take actions that endanger their wellbeing.
However, the legal fight is not over. The judge did not grant the children’s application for an injunction against the coal mine expansion. This is because he was not satisfied “that a reasonable apprehension of breach of the duty of care by the Minister has been established”.
Therefore, the government has yet to decide on whether to approve the mine expansion. But, when doing so, this judgement means that it will first have to consider the duty of care owed to children.
Increasing global demand for climate change duty of care
Around the world, action is being taken in courts to force governments and corporations to do more to address climate change.
In the Netherlands, a court recently ordered the oil giant Shell to cut its global carbon emissions by 45 per cent by the end of 2030 compared to 2019 levels.
In that case, brought by Friends of the Earth, the court found the Anglo-Dutch company had a legal duty of care to cut emissions in line with the Paris Climate Agreement.
[Editor’s note: the decision discussed in this article was overturned by the Full Bench of the Federal Court in March 2022. For more information, please see Impacts of climate change on our children – is there a duty of care? and Court says coal mines can be approved without considering climate change.]
