Government decision-making – climate change and Australian children
Federal Court finds Australian children are owed a duty of care in relation to climate change
In the recent decision of Sharma v Minister for the Environment [2021] FCA 560, the Federal Court held that Minister Ley, the Federal Minister for the Environment, owes Australian children a duty of care when considering whether to approve the Vickery Coal mine extension project (Extension Project) under Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
This decision is likely to have widespread implications not only for the future of resource project approvals, but also for various decision makers when exercising statutory powers in the context proposed developments with potential climate change impacts.
The case
Eight teenagers (the Children) brought two claims in the Federal Court against Minister Ley. The Children sought:
(a) a declaration that the Minister owes a duty of care to Australian children to not cause them harm when exercising her discretion to approve the Extension Project; and
(b) an injunction to restrain an apprehended (or threatened) breach of that duty.
The claims related to the Minister’s pending decision whether to approve the Extension Project under the EPBC Act. If approved, the Extension Project would produce an additional 33 million tonnes of coal over its lifetime, causing 100 million tonnes of future CO2 emissions.
Key points from the decision
In an extensive judgment, Bromberg J found that a novel duty of care exists at common law – the Minister must take reasonable care in exercising her statutory powers to not cause the Children harm arising from the extraction of coal from the Extension Project, and the consequent emission of CO2.
Bromberg J noted ‘(b)y reference to contemporary social conditions and community standards, a reasonable Minister for the Environment ought to have the Children in contemplation when facilitating the emission of 100 Mt of CO2 into the Earth’s atmosphere”.
However, the judge declined to grant an injunction that would prevent the Minister from approving the Extension Project. The Court was not satisfied that there was a reasonable apprehension that the Minister would breach her duty of care, given that:
- the Minister had a variety of options available that would assist in avoiding a breach of her duty (such as a conditional approval);
- the Minister now had a ‘mountain’ of new information which she could consider in relation to the decision; and
- in any event, the decision would still be subject to administrative review.
What does this mean for decision makers?
The implications of this decision are likely to be significant. In particular:
- although the Federal Court’s findings arose in the context of Ministerial power under Commonwealth legislation, they may extend to local governments that make decisions under State and local laws, leading to increased public scrutiny of decisions relating to development that causes carbon emissions;
- the existence of this novel duty of care in conjunction with the statutory approval obligations opens broader avenues for challenging government decisions in the context of emissions-intensive project approvals;
- the duty of care may lead to decision-making processes being more onerous and drawn out, as more information will need to be considered to avoid breaching the duty of care to young Australians; and
- decision makers may be encouraged to impose further conditions on planning approvals that are focused on the reduction, management and offset of emissions to reduce the likelihood of their decisions being subject to administrative review.
The Federal Court decision invites discussion about how local government decision-makers should exercise their statutory discretion with this duty of care in mind. It also raises important questions as to how local governments will incorporate the duty of care into their policies and guidelines.
Interestingly, the NSW Department of Planning, Industry and Environment’s Guide to Climate Change Risk Assessment for NSW Local Government and Net Zero Emissions Guidance for NSW Councils contemplate issues regarding potential liability associated with official decision–making. This case reinforces the importance of investing time and resources into navigating these potential issues for local governments.
What happens now?
Following current trends in climate change litigation, we anticipate decision-makers will be subject to further scrutiny, and potentially litigation moving forward.
Currently there is no corresponding duty of care clearly imposed upon local government officials. However, decision makers should exercise caution and keep the novel duty of care found to exist by the Federal Court in mind.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.
