Court green-lights Sussan Ley's climate duty of care appeal

On 15 March 2022, the Full Federal Court handed down its decision in the Minister for the Environment v Sharma case, delivering a blow to the hopes of young people and climate activists.

The Court, comprised of Chief Justice James Allsop, Justice Jonathan Beach and Justice Michael Wheelahan, unanimously held that Minister for the Environment Sussan Ley does not owe a duty of care to young people to protect them from climate change impacts.

Minister Ley welcomed the ruling, telling reporters that:

'Common sense had prevailed.'

This decision came after Federal Court Justice Mordecai Bromberg's unprecedented judgment to impose a common law duty of care upon Minister Ley, which has been dubbed 'stunning, novel and ground-breaking' by Dr Chris McGrath, a Queensland Barrister and an Adjunct Associate Professor at the University of Queensland.

It remains to be seen whether the Full Federal Court's decision will be appealed by the students – including Anjali Sharma, Izzy Raj-Seppings and Ambrose Malachy Hayes – to Australia's apex court, the High Court of Australia.

Raj-Seppings said:

“Our lawyers will be reviewing the judgment and we may have more to say in the coming weeks.”

The High Court has a record of delivering historic judgments, including its recognition of native title rights for Indigenous Australians in Mabo v Queensland (No 2) and the constitutionally implied right to freedom of political communication.

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'World-first' climate duty of care

In September 2020, eight students – many of whom met during the School Strike for Climate protests – filed a class action in an attempt to stop an extension of Whitehaven Coal's Vickery coal mine in Northwest New South Wales (NSW). They were represented by their litigation guardian, Sister Brigid Arthur.

The projected 25-year life of the mine is expected to produce 33 million tonnes of coal, causing 100 million tonnes of carbon dioxide to filter into the atmosphere.

The proposed extension of the coal mine required approval by the Minister for the Environment under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

Before Justice Bromberg of the Federal Court, the students argued that the Minister owes a duty of care to young people to protect them from the harm – physical, mental, economic and so on – associated with climate change.

The students' lawyers predicated this claim on the fact that burning significant amounts of coal causes a "real" increase in global temperatures, which, in turn, lead to heatwaves, bushfires, flooding, cyclones and other catastrophic events.

The Court accepted that this could bring about a future in which:

'One million children are expected to suffer at least one heat-stress episode serious enough to require acute care in a hospital. Many thousands will suffer premature death from either heat-stress or from bushfire smoke.'

The evidence presented – largely derived from the work of the Intergovernmental Panel on Climate Change (IPCC) – was not disputed by the Minister.

In a historic move, Justice Bromberg decided that the Minister owes that duty of care to young people when considering whether to grant approval for a project under sections 130 and 133 of the EPBC Act.

Justice Bromberg arrived at this decision, in part, because:

The evidence demonstrates that a reasonable person in the position of the Minister would foresee that, by reason of the extension project's effect on increased Co2 in the earth's atmosphere and the consequential increase in global surface temperatures, each of the children is exposed to a risk of death or other personal injury.

The Justice also found that imposing a duty of care on the Minister was appropriate, given the Minister's power to grant or deny approval for resources projects, the vulnerability of the student and their reliance on the Minister to protect them from climate-based harm.

The injunction sought by the students was, however, not ordered by the Court. According to Justice Bromberg, the students did not establish there was a "reasonable apprehension of breach of the duty", nor that the relief sought was proportionate in the circumstances.

In September 2021, Minister Ley approved the mine expansion, saying that she ‘gave human safety elevated weight’ in making the determination.

Nevertheless, the decision was celebrated by the students, climate activists and legal scholars. Belinda Rayment, Special Counsel at the Environmental Defenders Office (EDO), described the ruling as ‘significant’ and the Australian Conservation Fund (ACF) called it a ‘landmark decision’.

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Full Federal Court rejects students' case

Within a month of Justice Bromberg handing down his judgment, Minister Ley lodged her appeal. She issued a statement, saying she had 'formed the view there are grounds on which to appeal'.

The Australian Greens' Leader and Member for Melbourne, Adam Bandt, criticised the Government's decision to appeal Justice Bromberg's ruling.

Mr Bandt's office referred IA to his comments, which read:

"The fight against the initial judgment demonstrates the lack of regard this Government has for the futures of our children and the environment. It demonstrates clearly that we'll never be able to push the Liberal Party to take the climate action necessary to keep the world below two degrees of warming."

That appeal was heard in late October 2021. Chief Justice Allsop, Justice Beach and Justice Wheelahan agreed that the Court should not impose a duty of care on the Minister.

The reasons for this decision varied among the justices.

These reasons included that the courts are ill-equipped to deal with matters of ‘high public policy’; the connection between the Minister’s power to approve resources projects and the risk of personal injury to young people is too remote; and the EPBC Act does ‘erect or facilitate’ a relationship between the Minister and the students, making such a duty of care inappropriate.

However, Chief Justice Allsop also noted that the scientific evidence adduced by the students wasn’t in dispute.

Solicitor for the students, Equity Generation Lawyers Principal, David Barnden, said:

“Independent climate change experts established that Whitehaven’s Vickery coal mine will create a risk of personal injury and death to young Australians. The science has not changed.”

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Decision leaves students 'devastated', promise to fight on

Outside of the NSW Federal Court building, lead applicant Sharma said she was "so, so angry" with the Court’s judgment.

Further, she stated that:

"Today's ruling leaves us devastated, but it will not deter us in our flight for climate justice."

Her fellow applicant, Raj-Seppings, reiterated a similar message, asserting:

“The Court accepted that young people will bear the brunt of the impacts of the climate crisis. The Court’s recognition that extraction and burning of fossil fuels will cause future climate impacts is an important step in the fight for climate justice in the courtroom.”

University of Melbourne legal scholars Professor Jacqueline Peel and Rebekkah Markey-Towler wrote in the wake of the decision:

We believe the [disappointing] judgment sets back the cause of climate litigation in Australia by two decades, at a time when we urgently need climate action to accelerate.

Indeed, [the decision] only turns this responsibility back to the current Federal Government, which has policies increasingly at odds with what the science and concerned citizens say is needed.

However, Greens Leader Mr Bandt believes that the responsibility to protect the environment and minimise climate change impacts lies chiefly with the Government, telling IA:

You shouldn't have to force the Australian government to keep its people safe. It is a core duty of any government to protect its citizens.

Until we have a government that gets out of coal and gas and supports a 75 per cent cut to emissions by 2030 and net zero by 2035, we're going to continue to see young people take action to protect the planet.

The Greens will push the next government to go further and faster on climate action, starting with a freeze on new coal and gas projects, whether the courts recognise a duty of care or not.

With the ACF's January poll revealing that 67% of Australians believe action on climate outweighs any possible costs, the upcoming Federal Election looms as an opportunity for voters to have their voices heard.