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 sought to block the approval of Whitehaven’s expansion as a coal mine in New South Wales. This was on the grounds that, among other things, the Minister of the 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 so that they do not cause harm (including death or personal injury) from carbon dioxide emissions into the Earth’s atmosphere (the “Duty to Care”“).
In the first instance, which was widely hailed by many as a landmark decision (that took place on 27 May 2021),2Justice Bromberg concluded that: (i), the potential harm to Australian children from carbon dioxide emissions was a mandatory factor under the EPBC; (ii) there was a Duty of Care and it was owed by Minister (the “Judgment for the First Instance“). Justice Bromberg enacted the Duty of Care by stating that: (i.e., it was reasonablyforeseeable by the Minister that a danger to Australian children would result from the extension of a mine; (ii.) The Minister had direct oversight of that risk, as she was dependent on her approval; (iii). Australian children face a real risk of harm due to 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 separate reasoning from all three Judges) lasted 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. According to his view, “the posited obligation throws up for consideration the point of breach matters which are core policy questions that are unsuitable in nature and character 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. This was enough to dismiss the Duty of Care, he stated.
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, however, have declined to make any declaration regarding the Duty of Care. Justice Blomberg believes it would be unsatisfactory for courts to examine the question of the Duty of Care prior to the intertwined questions of damage, breach, and causation. In other words, he believed that the existence of a Duty of Care could only be properly considered after an alleged breach has occurred.
Considerations under the 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. All of them 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 consider the degree of incoherence to be sufficient to prohibit the existence of the Duty of Care.
Alleged Errors in 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 the uncontested evidence and his interpretation were completely legitimate and could not reopen the appeal. The Minister had lost her chance to challenge the evidence.
Establishing the Duty to Care
Each of the elements or factors that were relevant to the establishment of the duty of care was 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 the Minister could reasonably foresee the risk of harm to Australian children from the expansion. The Minister could also foresee 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 the Minister has almost all control over the risks posed by the approval of a mine. However, she doesn’t have sufficient control to establish the duty of care because she doesn’t have control over the harm (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 used a narrower definition of control to limit the question to whether or not the Minister has control over emissions from the mine. 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’s conclusion was based on his belief that Australian children do not rely on the Minister in a way that is 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 focused on the absence of any physical, temporal, or relational closeness between Minister and the Minister and the possible harm to Australian children. He highlighted that the harm could not occur for decades; that members of the class may reside anywhere in Australia; and that the mine is only in a particular area.
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]How many times they would be harmed, how long that damage will take place over the next century, and how severe it will be.7Chief Justice Allsop echoed the same reasoning but emphasized the inequity between the small contribution to the increased danger of harm, the lack control over that harm, as well as liability for any 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, which have been largely absent in recent European court decisions or have received positive judicial treatment. This decision is particularly important because it raises the question of non-justiciability. This block on courts considering climate change claims has been a hot topic in climate litigations in the U.S. as well as elsewhere around 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 & 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 only briefly address it, or to rely solely on the reasoning of the other judges.
4 Sharma v. Minister of the Environment [2022] FCAFC 35, at [7].
5 ibid, at [886].
6 ibid, at [335].
7 ibid, at [745].
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