Minister for the Environment's Concise Statement in Response

On September 8, 2020, eight young people filed a putative class action in Australia's Federal Court to block a coal project. The lawsuit sought an injunction to stop the Australian Government from approving an extension of the Whitehaven Vickery coal mine. The plaintiffs claimed to represent all people under 18, and argued that Federal Minister Sussan Ley has a common law duty of care for young people. They further asserted that digging up and burning coal will exacerbate climate change and harm young people in the future. Plaintiffs sought an injunction to prevent the Minister from approving the project under the Environment Protection and Biodiversity Conservation Act (EPBC). 

On May 27, 2021, the Federal Court of Australia established a new duty of care to avoid causing personal harm to children but declined to issue an injunction to force the Minister to block the coal mine extension. The Court 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 s 130 and s 133 of the EPBC Act, to approve or not approve the Extension Project." In establishing the duty of care, the Court found that the foreseeable harm from the project, if the risks were to come true, would be "catastrophic", and therefore children should be considered persons who would be so directly affected that the Minister ought to consider their interests when making the approval decision. In declining to issue an injunction, the Court found that the plaintiffs had not established that it is probable that the Minister would breach the duty of care in making the approval decision, and had not established that they will have no further opportunity to apply for an injunction. In its May 27, 2021 judgment, the Court delayed issuing a declaration about the duty of care owed by the minister, and raised a number of questions to the parties about the scope of the duty.

On July 8, 2021, the Court issued a declaration that "The [Minister] has a duty to take reasonable care . . . to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere." In issuing the declaration, the Court rejected arguments by the Minister to limit the declaration to only the applicants. Instead, the Court declared the duty applied to all Australian young people because both the applicants and Australian young people had the "same interest." The Court ordered the Minister to pay costs. 

On September 13, 2021, the Ministry of Environment filled an appeal questioning the judge’s finding that the Minister owes a duty of care to avoid causing personal injury to children related to anthropogenic climate change. The appeal is based on the separation of powers and the argument that the Minister’s decision is a matter of policy and subject to discretion. The regulation of GHG emissions is better suited for the Executive, and no novel duty of care should be recognized. The appeal also questioned whether the approved project would cause a net increase in global GHG emissions and the reversed onus of proof in approaching this issue. 

Despite the Federal Court’s decision, on September 15, 2021, the Minister granted approval for the proposed mine expansion. A hearing was held on October 18-20, 2021. On March 15, 2022, the Full Federal Court of Australia unanimously overturned the primary judge’s decision to impose a duty of care on the Minister. The three judges had separate reasonings. Chief Justice Allsop found that the duty would require consideration of questions of policy “unsuitable for the judicial branch to resolve.” Justice Beach found insufficient “closeness” between the Minister and the children but left open the possibility of a future claim if any of the children suffered damage. Justice Wheelahan found that (i) the EPBC Act cannot establish a duty of care relationship between the Minister and children, (ii) establishing a duty would be incoherent with the Minister’s functions under the EPBC Act and (iii) it was not foreseeable that approval of the coal mine extension would cause personal injury to the children. Despite allowing the Minister’s appeal, the Court rejected the Minister’s argument that the primary judge made findings based on evidence of climate change that were unfounded. This means that the primary judge's findings of fact about the risk of harm of climate change to children remain. The Full Federal Court noted that “the nature of the risks and the dangers from global warming, including the possible catastrophe that may engulf the world and humanity” were never in dispute. 

The plaintiffs announced that they would not appeal the decision. 

The plaintiffs asked the court to make orders that the proceeding not continue as a representative proceeding. 

The Full Court was of the view that before orders were made setting aside the orders of the Court
made by the primary judge and dismissing the amended originating application dated 14
December 2020, the parties should be afforded an opportunity to consider whether any further
orders were appropriate or necessary to address the representative nature of the proceeding. This is because the proceedings in their current form would bind the represented children (all Australians under the age of 18 at the time the case was filed), and give rise to an issue estoppel in relation to all questions of fact and law necessary to the Full Court’s conclusion that the Minister did not owe the posited duty of care. This would prevent the represented children from bringing proceedings of a similar nature in the future. 

Accordingly, the parties asked the court to make orders that the proceeding not continue as a representative proceeding. The relevant orders were made by the court on 14 April 2022 and reasons published on 22 April 2022. 


Sharma and others v. Minister for the Environment

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Sharma and others v. Minister for the Environment - reply

Filed

Australia

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A target to reduce the prevalence of a greenhouse gas over a specific time frame

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Heavy precipitation refers to any form of weather where substances fall from the sky, including rain, snow, sleet, or hail.

Sharma and others v. Minister for the Environment - reply

Target

Risk

Impacted group

Fossil fuel

Greenhouse gas

Economic sector

Finance