A setback for climate change claimants was caused by the decision of the Federal Court of Australia, Sharma v Minister of the Environment.1It was found that the Minister for Environment had no duty to care for Australian children and did not have the authority to approve the expansion a coalmine in order to avoid the adverse effects of climate changes..
Background
Eightteens from Australia (the “The “) will be graduating in September 2020.Claimant Representatives“The Plaintiffs” were represented by an octogenarian nun who is their litigation guardian.Claim“) as representatives for all Australian children. The Claim was filed to stop the approval of the Whitehaven coal mining expansion in New South Wales. It was based on the claim that, inter alia the Minister for Environment (the “Minister“) was obligated to care for Australian children in order to exercise her powers under Environment Protection and Biodiversity Conservation Act (“the “EPBC“) with reasonable care to avoid causing injury (including death) that could result from carbon dioxide being released into the Earth’s atmospheric (the “Duty of care”“).
In the first instance, which was widely hailed by many as a landmark decision (that took place on 27 May 2021),2Justice Bromberg found: (i) The potential harm to Australian children resulting carbon dioxide emissions was mandatory under the EPBC; and, (ii), The Duty of Care existed (and was owed) by the Minister (the “The Bromberg Report”).First Instance Judgment“). More particularly, Justice Bromberg established the Duty of Care on the basis that: (i) it was reasonably foreseeable by the Minister that a risk of harm to Australian children would flow from the extension of the mine; (ii) the Minister had direct control over that risk, as it was dependent on her approval; and (iii) Australian children are vulnerable to a real risk of harm from ‘climatic hazards’.
Justice Bromberg refused to grant the injunction requested, despite finding in favor of the Claimant Representatives regarding the existence of the Duty of Care. Justice Bromberg stated that it was not established that a breach of that Duty of Care could reasonably be expected. The Minister appealed. In the interim between the First Instance Judgment and the hearing of the appeal, the Minister approved the expansion of the mine.
The Decision
The appeal was heard by a three-judge panel of judges from the Full Federal Court of Australia (the FFC) on 15 March 2022. This decision overturned the First Instance Judgment.
In an indication of the complexity of the questions under consideration, each of the three judges – Chief Justice Allsop, Justice Beach and Justice Wheelahan (together “the Judges”) – dismissed the appeal on distinct grounds, with distinct reasoning. The FFC’s decision, which included the distinct reasoning of all three judges, weighed in at over 200 pages.3
The Courts’ role
Chief Justice Allsop focused his decision on the interaction of the Duty of Care, policy questions, and which are by nature non-justiciable. He believes that “the posited Duty throws up at the point in breach matters that are core policies questions unsuitable for judicial determination”.4 He stated that the courts are ill-equipped and ill-informed to deal with the questions posited by the Claim if the Duty of Care is established, namely the proper policy response to climate change and the question of whether, and if so how, emissions from the mine should be taken into account in making a decision about whether to approve the expansion of the mine. He felt that this was enough to negate the Duty of care.
Justice Beach believed that the Duty of Care question could be dealt with without having to consider policy issues that would lead to non-justiciability. Justice Blomberg should not have made any declaration on Duty of Care. Justice Beach believes that it is incongruent for courts to consider the question of whether the Duty of Care exists before the intertwined issues of breach, causation, and damage can be considered. According to Blomberg, the existence of the Duty of Care cannot be properly considered until an alleged breach has occurred.
Considerations under EPBC
Each judge considered whether the potential harm that carbon dioxide emissions could cause for children in Australia was a mandatory consideration under EPBC. This meant that the Minister had to consider it when granting approval for the mine. They all agreed that it wasn’t. Chief Justice Allsop & Justice Wheelahan concluded that the Duty of Care violated the EPBC. This was because it would exceed the EPBC’s conditions in a way that is inconsistent with the legal & governmental framework. Justice Beach did not find the degree of incoherence sufficient to prevent the existence of the duty of care.
Alleged Errors of fact
The Claimant Representatives’ expert testimony on the effect of carbon dioxide emissions had been accepted by the Claimant Representatives in the first instance. This was widely interpreted as a sign that countries and organisations are not willing to deny the existence of a link between carbon dioxide emission and climate change. Justice Beach and Chief Justice Allsop recognized that some parts of the expert evidence could have been questioned, but they both agreed that Justice Bromberg’s acceptance of this uncontested information and his interpretation of it was entirely legal and could not reopen the appeal. In other words, the Minister had missed her opportunity to contest the evidence.
Establishing the Duty to Care
Each of the elements and factors that contributed to the establishment of the Duty of Caregivers were considered by the Judges. Each concluded that the Duty of Care failed because one or more of those elements or factors had not been established in the required manner.
Reasonable foreseeabilityJustice Beach and Chief Justice Allsop agreed with Justice Bromberg, stating that it would be reasonable to predict that there would be harm to Australian children from the expansion. In that the Minister could see that even a small increase in carbon dioxide emissions could cause such harm. Justice Wheelahan was not convinced that the approval for the mine would cause personal injury to Claimant Representatives in a reasonable foreseeable way. This is because the common law tort of negligence uses the concept of causation.5He concluded that the Minister’s decision to approve the expansion would contribute to an increased risk of harm but not necessarily to the harm itself.
Control:Chief Justice Allsop concluded, “While the Minister has almost complete control over the risk caused by the approval of the mine”, she doesn’t have enough control to establish the Duty of Care because she doesn’t have control over any harm (being global climate catastrophe). “Numberous others around the globe can mitigate the risk of this harm.”6 Justice Wheelahan concurred that the Minister’s mere control over the approval of the mine was insufficient in the absence of control over the harm. Justice Beach interpreted control in a more narrow way, limiting the question to whether the Minister has any control over the mine’s emissions. He concluded that such control was not negotiable since the approval party is expected to act in accordance with that approval.
Vulnerability: Justice Beach and Chief Justice Allsop concluded that Justice Bromberg’s findings did not adequately describe Australian children as vulnerable in this sense of special vulnerability. Chief Justice Allsop made his conclusion based on his view that Australian children don’t rely on the Minister to be different from other Australians. Justice Beach believed that only a few Australian children would be particularly vulnerable in the relevant sense and that vulnerability could not be established.
Nature of the RelationshipChief Justice Allsop, Justice Beach and Justice Beach concluded that the nature of the relationship between Minister and Australian children was insufficiently direct or proximate for the establishment of the Duty of Care. Chief Justice Allsop’s reasoning was based on the nature and relationship between the government, governed. Justice Beach emphasized the lack of any relationship, physical, or temporal, between the Minister and the children of Australia. He noted in particular that (i) the harm might not occur for many decades; (ii), members of the class live throughout Australia, while the mine is in a nearby area; and (iii). There are many other actors in this causal chain between the Minister’s approval and the harm.
Indeterminacy:Justice Beach concluded indeterminacy was fatal in the Duty of Care context of “rolling events potentially creating damage where there isn’t a meaningful limit on how many [Australian children]They would be hurt, how often they will be so harmed and when that damage will occur over a century or more, and the extent of such harm.”7Chief Justice Allsop used similar reasoning but placed more emphasis on the lackof proportionality between the small contribution of the increased risk of harm and the lack of control over it. He also cited liability for all future damage.
Comment
The FFC decision will be seen as a stumblingblock for climate change claimants. The Judges rejected the new Duty of Care. However, their decision also highlighted key questions of justiciability and causation, as well as foreseeability of damage, which have been largely absent in recent European court decisions or have received positive judicial treatment. In particular, the decision highlights the issue of ‘non-justiciability’. This block to courts’ considerations of climate change claims is also a hot topic for climate change litigations brought up in the U.S.A and elsewhere in the world.
The decision will be a positive for climate change claimants. First, Claimant Representatives indicated their intention of appealing. Second, the Judges specifically mentioned the need to reform the law, leaving the door open to the Australian High Court to develop the elements necessary for establishing a duty to care. Third, Justice Beach was expressly open to future claims by one or more Australian children at a time when harm can be established, and all three Judges indicated that they would hear further submissions on the question of whether it is appropriate that an estoppel should arise from their judgment.
1 Sharma v. Minister of the Environment [2021]FCA 560 and FCA 774.
2 ibid.
3 Not all Judges addressed every element or argument of the Duty of care in detail. In some cases, a Judge decided not to address an argument of the Duty of care at all, to address it only briefly, or to rely solely on the reasoning of the other judges.
4 Sharma v. Minister for the Environment [2022] FCAFC 35, at [7].
5 ibid, at [886].
6 ibid, at [335].
7 ibid, at [745].