The Federal Court has delivered an historic and landmark ruling that the federal environment minister has a duty of care to avoid harm to young people as a result of climate change, a judgement that could have flow-on consequences for projects seeking to increase Australia’s production of coal.
The legal action had been commenced on behalf of eight Australian high school students and a catholic nun who acted as their litigation representative. They argued that federal environment minister Sussan Ley had a duty of care not to allow harm to be caused to young people as a result of climate change.
The students argued that Ley would be negligent if she decided to approve an application from the Vickery coal mine, operated by Whitehaven coal, to extract an additional 33 million tonnes of coal from the mine. The additional coal production is expected to result in 100 million tonnes of additional greenhouse gas emissions.
The students sought a ruling from the federal court that would prevent Ley from approving the expansion of the coal mine, arguing that children were particularly vulnerable to the impacts of climate change, as they were more likely to live through the future consequences.
In response, Ley had argued that no such duty of care existed, as there were no ‘reasonably foreseeable’ climate change-related consequences resulting from the extraction of additional coal from the coal mine. Ley also argued that recognising the duty of care could ‘open the floodgates’ of litigation, allowing any person to commence legal proceedings to block a coal project.
In a landmark decision, federal court judge Mordecai Bromberg agreed that the federal environment minister owed a duty of care to young people to prevent harm as a result of climate change, dismissing many of the counterarguments made by the environment minister.
“By 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,” judge Bromberg’s judgement says.
“It follows that the applicants have established that the Minister has a duty to take reasonable care to avoid causing personal injury to the Children when deciding, under s 130 and s 133 of the EPBC Act, to approve or not approve the Extension Project.”
The decision is somewhat of a rebuff of recent claims from Ley that action on climate change was not part of her portfolio responsibilities as the federal environment minister.
Ava Princi, one of the students who brought the legal challenge, said she was “thrilled” by the decision.
“I’m thrilled because this is a global first,” Princi said. “We understand it is the first time a Court of law, anywhere in the world, has ordered a government to specifically protect young people from the catastrophic harms of climate change.”
“My future – and the future of all young people – depends on Australia joining the world in taking decisive climate action.”
While federal court judge Bromberg acknowledged in his judgement that the federal environment minister had a duty of care to future generations, he declined to issue the injunction sought by the students that would have prevented the Vickery coal mine from proceeding.
Bromberg said that issuing an injunction would effectively prevent the environment minister from making a proper decision about the coal mine extension.
The ruling may not prevent the coal mine from proceeding altogether but will require the federal environment minister to consider the impacts of climate change on young people when making decisions relating to the expansion of coal mining and to justify why it would be acceptable for a project like the Vickery coal mine expansion to proceed.
“The posited duty of care will not and cannot address climate change,” the judgement says. “All that it can and will do is impose an obligation on the Minister when deciding whether or not to approve the Extension Project to take reasonable care to avoid personal injury to the Children. The imposition of a duty of care does not mandate the Minister’s decision. As already discussed, the EPBC Act itself imposes an obligation upon the Minister to take into account the personal safety of the Children.”
The court ordered the parties to the proceedings, being the students, Ley, and Vickery coal to negotiate a way forward before the court makes a final determination.
“This case is not over,” Princi said. “While the Court stopped short of preventing the Minister from approving the Vickery mine extension today, it has ordered parties to come together to find a way forward. We are still optimistic that the climate harms from this mine will not happen.”
The decision follows another landmark decision of a Dutch court that ruled that global oil and gas giant Shell must reduce both its own direct greenhouse gas emissions, as well as those caused by the products that it sells. The Dutch court ruled that a failure to do so would amount to a breach of the human rights of the citizens of the Netherlands.
A spokesperson for the Department of Agriculture, Water and the Environment told RenewEconomy that “the department has just received the decision and will be considering it in detail.”
