On the 27th of May 2021, the Federal Court of Australia handed down a judgement that could revolutionize environmental decision-making in the country. Justice Bromberg declared that the Federal Minister for the Environment owes a duty of care to protect children from reasonably foreseeable future harm that could result from increased greenhouse gas emissions and consequent climate change.
The case, Sharma v Minister for the Environment [2021] FCA 560, dealt with a class action brought by a group of eight Australian children who, with their legal representative, constituted the applicant. The applicants sought an injunction to stop the Federal Minister for the Environment from approving the proposed extension of an existing coal mine under Australia’s national environmental legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The applicants argued that approving the extension would amount to an apprehended breach of a duty of care the Minister owes to all Australian children to protect them from reasonably foreseeable climate harm that would result from the increased greenhouse gas emissions that the mine would produce.
The application for an injunction was ultimately dismissed. However, the imposition of the duty of care onto the decision-making process could have major repercussions for the orientation and direction of Australian environmental law in the present and future. It is the first time that a duty of care has been considered and applied in the context of climate change harm under Australian law. The class action was inspired in part by the Urgenda case in the Netherlands where a similar duty of care was imposed upon the Dutch government. This decision will add further momentum to this burgeoning global movement.
Establishing a Novel Duty of Care to Australian Children
The decision has justifiably received considerable coverage for the novelty of the duty of care imposed by the court. Recognition of the increasing risk of climate harm aligned with projections of global temperature rise was a critical evidentiary issue in formulating the duty of care. This was reflected in the range of considerations relevant to understanding climate risk and vulnerability as identified by Bromberg J, that characterised the relationship between the Minister and Australian children. The considerations included:
- Reasonable foreseeability of Harm
- Heatwaves
- Bushfires
- Other Direct Impacts
- Indirect and Flow on impacts
The underlying message of the evidence presented, and the summation of that evidence by the court, is that the risk of more frequent, unpredictable and ferocious climate harm will befall children in the future.
This legal recognition of increasing climate risk is extremely important given the fragmented nature of law regulating climate change in Australia. Whilst human rights are not explicitly mentioned in the judgement, a responsibility to protect is identified and articulated as part of the duty of care. In the absence of dedicated climate legislation at the federal level other discrete areas of law are utilised to regulate and modify behaviour that can result in increased risks of climate harm.
The EPBC Act is principally concerned with the regulation of land use through an assessment process that results in the approval or rejection of proposed actions. In this case, the exercise of the decision-making power by the Minister for the Environment pursuant to sections 130(1) and 133 was under scrutiny. The EPBC Act affords the Minister a ‘significant special measure of control’ over the source of the risk of harm and the safety of those that are put at risk – in this case, Australian children. Control can be exercised and maintained by the Minister through the power to approve, reject or approve with conditions, the application to extend to the coal mine. The quality of control was described by Bromberg J as ‘substantial and direct’ over the contribution of the mine extension to the emission of greenhouse gas emissions and was enhanced by the Minister’s knowledge of the potential consequences that would flow if she approved the mine extension.
A Responsibility to Protect
Crucially the powers to approve the coal mine extension bestow upon the Minister a responsibility to make decisions that give effect to the protection of the environment. This was key in establishing to whom the novel duty of care is owed to and how the Minister could exercise control over the management of land use and climate change harm to children. The Minister has control over those aspects of environmental change as identified in the legislation. The scope of the role is broad and must be performed in a way that gives effect to the legislative objects of the EPBC Act which includes ‘providing protection for the environment.’ As Bromberg J notes, the definition of the term environment includes a reference to ‘people and communities’ of Australia. This of course includes Australian children – a point emphasised by the presence of the principle of intergenerational equity, a pillar of ecologically sustainable development, which is included under the objects of the EPBC Act. The entanglement of environmental and human health and the need for protection is captured in the following comment from Bromberg J: “The Minister occupies the situation of having responsibility over the environment and the interests of Australians as part of that environment…for the benefit of future generations” [273].
Justice Bromberg confirmed that the responsibility to ensure the protection of children is a mandatory consideration that must be taken into account when the Minister exercises their discretion under the EPBC Act. The Minister submitted that the imposition of a duty of care would impair the exercise of discretion as empowered under the EPBC Act. Justice Bromberg rejected that submission and stated that human safety is a relevant mandatory consideration where the subject of the decision-making process may endanger human safety. The subject matter, scope and purpose of the EPBC Act mean that, in relation to the extension of the mine, “the lives and safety of the Children are not optional considerations but have to be taken into account by the Minister” [404]. The obligation to protect people as part of the environment, means that it is impossible to accept that the lives and safety of children would not be a mandatory consideration if the activity that the Minister is considering, could pose a threat to human health.
What next for environmental decision-making in Australia?
This application of a responsibility to ensure the protection of children could hint at a value shift in Australian law whereby harm to the environment and harm to humans is viewed holistically. Framing the responsibility to protect humans and in particular children as extension of an obligation to protect the environment, suggests entanglement between humanity and nature in ways that hints at a recognition of the Anthropocene – though it is not mentioned in the judgement. The term Anthropocene refers to the current geological epoch where humanity is the primary driver of environmental and planetary change. The court noted that to describe children as vulnerable to the impacts of climate change would be to “understate their predicament” [294]. Bromberg J characterises the future climate impacts that children will be forced to endure as “harsher, far more extreme and devastatingly brutal” [293]. The role of humanity in producing this change is specifically highlighted by the judge in ways that captures the essence of the Anthropocene: “None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest intergenerational injustice ever inflicted by one generation of humans upon the next” [293]. This resonates with the fundamental point of Anthropocene scholarship that describes humanity as the principal driver of environmental and planetary change – a hypothesis that was pioneered by, among others, Professor Will Steffen who incidentally provided expert evidence as part of the case.
In rejecting the application for injunctive relief Bromberg J concluded that while a duty of care would impose a responsibility to protect onto the decision-making process, it does not necessarily mandate a particular, predetermined outcome – in this case the rejection of the application for the mine extension. In terms of the Minister’s response, the key to avoiding liability that would flow from a breach of the duty is a ‘reasonable response.’ The court held that following the recognition of a duty of care various possibilities are open to the Minister to avoid breach and a reasonable response to the foreseeable harm to children.
The Minister, and practitioners and scholars of Australian environmental law generally, are left to ponder – what does a reasonable response look like? This becomes infinitely more complex if, as projected, Australia’s climate emissions fail to decrease and, as a consequence, the risk of future climate harm to children is heightened. There would be less flexibility for a Minister to respond in any way other than refusing to approve a project such as a coal mine that would contribute to future climate harm. This outcome is possible given the Australian government’s lack of a definitive commitment to a net zero emissions target by 2050, despite this objective receiving broad global support. Increasingly there is a sense that the future is now.
The author thanks Michelle Lim for her comments on an earlier draft.