Federal Court overturns duty of care in children's novel climate change case

By Claire Smith, Lauren Smith, Nicole Besgrove and Olivia Back
17 Mar 2022
Unless overturned on an appeal to the High Court, the Commonwealth Environment Minister, when exercising her powers under sections 130 and 133 of the EPBC Act, no longer has a duty of care to consider the greenhouse gas emissions and climate change risks to any vulnerable community in determining whether or not to grant an approval under the EPBC Act.

The Full Federal Court has unanimously held that the Commonwealth Environment Minister does not owe the children-applicants (Children) a novel duty of care not to cause the Children personal injury when exercising her power to approve the proposed Vickery Coal Mine extension project (the Project) pursuant to sections 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

Last year the Federal Court handed down its decision in the climate case known as "Sharma" which established that the Minister owes a duty of care not to cause harm when exercising her power to grant an environmental approval and that human safety was a mandatory consideration in the making of that decision which can be implied from the subject matter, scope and purpose of the EPBC Act.

On appeal by the Commonwealth Environment Minister, the three judges of the Federal Court unanimously found that the duty of care could not be applied to the Commonwealth Environment Minister with varied emphasis as to the reasons why.

Reasons for no duty of care

Chief Justice Allsop was of the view that the duty of care should not be imposed for the following three reasons:

  1. the duty and whether or not it had been breached required "core policy questions" to be considered which were unsuitable in their nature and character for determination by the judicial branch in private litigation;
  2. there are irreconcilable inconsistencies and incoherencies with the duty and the terms of the EPBC Act. Climate change and global warming were not expressly regulated under the EPBC Act and human health is not a mandatory consideration for the Minister in considering the protection of the environment; and
  3. a lack of special vulnerability of the Children in the legal sense, the indeterminacy of liability and lack of control by the Minister for all damage caused by heatwaves, bushfires and rising sea levels to all Australians under the age of 18, ongoing into the future

Justice Beach considered the indeterminancy of the class of claimants:

"[I]ndeterminacy arises because of the lack of ascertainability of the relevant class. … The class …  must deal with those that are at risk of harm in the sense that they are vulnerable, that is, they cannot take adequate measures to protect themselves. So, we are not dealing with anyone at risk from GHG emissions or warmer temperatures. Rather, we are dealing with those at risk of suffering personal injury from such temperatures or their consequences who are not able or likely to be able to protect themselves. Now as soon as that is the focus, it will be appreciated that such a class is not readily ascertainable today. Sure, you can reasonably hypothesise that many of the claimant class (as presently defined 80 years or so in advance of the likely time of personal injury) are likely to be so vulnerable. But that does not define the inquiry. There is no reasonable ascertainability today of the boundaries of the true class of likely vulnerable victims".

Chief Justice Allsop concluded:

"[…] lack of control over the harm (as opposed to the tiny contribution to the risk), the conduct of countless others around the world, the lack of any special vulnerability, and lack of reliance, are really only features or reflections of the essential problem for the respondents: the relationship that founds the duty is one between the government and the governed and lacks the relevant nearness and proximity necessary for the imposition of a duty of care. At one level of abstraction we all rely on an elected government to develop and implement wise policy in the interests of all Australians, in one sense especially the children of the country who are its future. That is not the foundation of the law of torts. It is the foundation of responsible democratic government".

The Federal Court made no adverse findings about the scientific evidence and findings of the primary judge in relation that evidence which was not challenged in the primary proceedings by the Minister. According to Justice Beach it was open to the primary judge to construe that there is a real risk that even an increase in global average surface temperature of around or more than 2°C above pre-industrial levels may trigger a 4°C future world, based upon the risk of initiating a tipping cascade, which could in turn trigger the Hothouse Earth scenario.

His Honour went on to say that should one or more members of the claimant class suffer damage and so have an apparently complete cause of action in the future, then it should be open to them to assert the existence of a relevant duty of care, breach of duty, causation and damage and no issue estoppel should arise on any question concerning the existence of a duty by allowing the present appeal.  His Honour indicated he would be prepared to receive further submissions on this topic from the parties.

Not the last word on climate change impacts of coal projects

Unless overturned on an appeal to the High Court, the implications of the Federal Court’s decision are that the Commonwealth Environment Minister, when exercising her powers under sections 130 and 133 of the EPBC Act, no longer has a duty of care to consider the greenhouse gas emissions and climate change risks to any vulnerable community in determining whether or not to grant an approval under the EPBC Act.

It is important to note, however, that climate change impacts of coal projects, and their impact on human health, remain key considerations for State / Territory approval authorities to consider, depending on the specifics of the state and/or territory legislation along with whether or not the project is in the overall public interest balancing up environmental, social and economic impacts. For example, in New South Wales the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 [now State Environmental Planning Policy (Resources and Energy) 2021] must be considered by the consent authority. Under that SEPP the consent authority must “consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development … having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions” and, in determining whether to grant consent, whether the project's "greenhouse gas emissions are minimised to the greatest extent practicable" (cl14(1)(c))[now cl2.20(1)(c)].

It is expected that groups of young people both in Australia and abroad will continue to test the judicial boundaries of decision-making whether that be through asserting their rights under relevant human rights legislation or shareholder activism and greenwashing litigation or through targeting state-based regulators who have more control over reducing greenhouse gas emissions through environmental approvals and mitigating climate change impacts.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.