Environment Minister's Duty of Care to Australian Children
On 27 May 2021, the Federal Court of Australia handed down its decision in the matter of Anjali Sharma (and others) v Minister for the Environment  FCA 560, an application for injunctive relief made by eight Australian children against the federal Minister for the Environment. The application sought to prevent an apprehended breach of the duty of care the children argued was owed to them by the Minister. The court’s decision, which has been hailed as ‘stunning’, recognised the Environment Minister’s duty of care to Australian children.
The application was made as the Minister for the Environment was considering an application to expand and extend the Vickery coal mine in New South Wales, which would lead to the extraction and combustion of 135 to 168 million tonnes (mt) of coal, causing the emission of about 100 mt of CO2.
The children argued that the additional 100 mt of CO2 from the Extension Project would materially contribute to their risk of harm from climate change. They asked the court to find a novel duty of care existed, which would be breached if the Minister were to approve the Extension Project and to issue an injunction preventing her from approving the project.
The Minister argued that the 100 mt of CO2 would be emitted within the carbon budget and that they would make a negligible contribution to average global surface temperature increases, resulting in an increase of only one eighteen-thousandth of a degree Celsius.
In support of their case, the children led expert evidence from climate and Earth systems scientist Professor Steffen, which was uncontested.
Professor Steffen gave evidence that emissions of CO2 have raised atmospheric levels of CO2 and the Earth’s global average surface temperature by 1.1 degree Celsius from pre-industrial levels (taken in 1876). Coal has contributed around 46% of these emissions. He testified that further emissions of CO2 from human activities would further increase the surface temperature at a rate of around 1 degree per 1800 gt of CO2. The concentration of CO2 is currently rising at a rate of 2.5 parts per million per year and the average surface temperature is rising at about 0.5 degree Celsius per decade. At this rate, the average surface temperate is on track to reach 5 degrees about pre-industrial levels by 2100.
Professor Steffen gave evidence that Earth systems that help absorb the additional burden of CO2 are currently being overwhelmed. Feedbacks such as melting ice and forest dieback can further accelerate the warming, with one feedback process potentially triggering another, leading to an uncontrollable tipping cascade, which he referred to as the ‘hothouse earth scenario’. He told the court that human emissions must reach net-zero for atmospheric CO2 levels to stabilise and that this will take between a few decades and a century to achieve. He outlined various climate scenarios and the degree of risk of tipping cascade they entailed as well as the various types of harm, including death, likely to be suffered by people living in Australia later in the century in each scenario.
Does the Minister have a duty of care to Australian children?
In considering whether a duty of care was owed to the children, the court examined how legal conceptions of such duties have evolved over time as the capacity of humans to cause harm to one another has changed. It noted that tortious conduct can be restrained by injunction even when done in the performance of a statutory power. It summarised the applicants’ case as follows:
‘The applicants contend that because today’s adults have gained previously unimaginable power to harm tomorrow’s adults, the common law should now impose correlative responsibility.’
Duty of care and foreseeability of harm
The court found that harm to the children was reasonably foreseeable as a result of the emissions from the Extension Project. It found that the Minister had direct control over the risk and that Australian children are extremely vulnerable to the risk of harm from climate change.
Justice Bromberg found that avoidance of personal harm to the children was a relevant consideration the Minister must take into account when exercising her powers under sections 130 and 133 of the Environmental Protection and Biodiversity Conservation Act (EPBC Act). Her Honour stated:
‘The preservation of human life and the avoidance of personal injury is likely to be a relevant consideration whenever decisions are made about a matter which may give rise to a danger to human safety. That simply reflects the importance our community attaches to the preservation of life and personal safety…(Human safety) is a relevant consideration which arises by implication from the subject-matter, scope and purpose of the EPBC Act.’
The court rejected the Minister’s arguments that the posited duty was inconsistent with administrative law principles, that the harm foreseen was indeterminate and that the class of persons affected was too large. It noted that in tort law, the size of a class of potential claimants may be very wide – for example, with the duty of care owed to all road users.
The court found that the Minister owed a duty of care to take reasonable care to avoid causing personal injury to the children when exercising her powers under sections 130 and 130 of the EPBC Act.
Should an injunction be issued to prevent the Minister breaching this duty of care?
The court then considered the question of whether it ought to issue the injunction sought, which would require the Minister not to approve the Extension Project. It noted that the children had proceeded on the basis that non-approval of the project was the only way to avoid a breach of duty of care. The court was not convinced of this, finding a more nuanced response may be possible, such as the conditional approval of the project or the adoption of other measures to address the risk of harm to the children. Liability in negligence would, however, require the Minister to make a reasonable response to the foreseeable harm to the children. The court found that the children’s rights would not be irretrievably lost if an injunction was not granted now and that it was preferable for the question of injunctive relief to wait until such time as the minister proposed or actually made the decision as to whether to approve the Extension Project.
The decision has been welcomed by environmentalists and lawyers, with predictions that it could revolutionise environmental decision-making in Australia. The decision forms part of a growing body of case law here and around the world that recognises the impact of climate change on government decision-making and private law duties.
The decision is expected to be the subject of appeals.
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