The Full Federal Court has ruled that the federal government does not owe young people a duty of care to protect them from the potential impacts of climate change when issuing environmental approvals, overtuning an earlier ruling and delivering a blow to advocates who argued fossil fuel projects pose a direct risk of harm.
In an earlier judgement, federal court justice Mordecai Bromberg had ruled that the federal environment minister did owe young people – as represented by the students – a duty of care to consider the impacts of climate change when decising on environmental planning applications.
Bromberg had ruled that the federal environment minister had a “duty to take reasonable care” to “avoid causing personal injury or death” to Australians under 18 years of age that arose “from emissions of carbon dioxide into the Earth’s atmosphere.”
However, environment minister Sussan Ley opted to appeal the decision, leading to the unanimous findings of the three judges sitting as the full federal court that the earlier ruling on the duty of care question should be overturned.
While each of the judges provided separate sets of reasoning on Tuesday, each reached the same conclusion that the duty of care did not exist.
The general reasoning of the court cited difficulties in establishing causation and contributions of a particular fossil fuel project and the global impacts of climate change, a general deference by the court to government ministers to decide on matters of public policy, and difficulties in being able to determine what ‘standard of care’ could be imposed on the minister or a proposed development.
The judgements suggest that the student’s case failed to establish that there was a sufficient link between prospective coal developments – in this case, the extension of the Vickery coal mine in New South Wales – and the threat of direct harm to young people.
Students to keep fighting after duty decision
The science and predicted impacts of climate change remain the same. Adults should do all they can to create a safe future for our children.
We will continue to fight for a safe future.
— David Barnden (@dbarnden) March 14, 2022
The judges also found that the difficulties in determining what contribution a specific project may make to the globally observed impacts of climate change made it generally impossible to impose a duty of care or assess any potential liability for the consequential impacts of the development.
The decision is potentially a major blow for future climate change litigation cases, as it suggests there may be difficulities in holding particular fossil fuel developments – and governments making decision to approve specific projects – responsible for the much broader and aggregate impacts of climate change.
The decision by the Morrison government to instigate the appeal has been interpreted as a defence of the fossil fuel industry, and a denial that the federal government had a responsibility to consider the potential long-term threat posed by climate change to Australia’s young people.
One of the students, 17-year old Anjali Sharma, said the group had been left “devasted” by the decision, but vowed fight on.
“Today’s ruling leaves us devastated, but it will not deter us in our flight for climate justice,” Sharma said.
“This case demonstrates that young people are determined to be heard on this issue at the highest levels. We’re proud of representing young people in Australia and fighting to hold people in power responsible for their actions.
“Climate change is already wreaking havoc on the lives of Australians. Two years ago, Australia was on fire; today, it’s underwater. Burning coal makes bushfires and floods more catastrophic and more deadly. Something needs to change. Our leaders need to step up and act.”
A spokesperson for Sussan Ley said the minister welcomed the decision.”
“The Morrison Government remains committed to protecting our environment for current and future generations,” the spokesperson said.
“The Minister always takes her role as the Environment Minister seriously. The Government will now closely review the judgement.”
The legal challenge had been instigated on behalf of a group of Australian high school students, who had argued that their status as young people, who were likely to be the most at risk to the long-term impacts of climate change, meant that the federal government had to consider the potential long-term threats posed by allowing new fossil fuel developments when granting environmental approvals.
The case was brought on the student’s behalf by a catholic nun, Sister Brigid Arthur, who acted as the student’s litigation guardian. The group were legally represented by Equity Generation Lawyers.
Tuesday’s decision may still be appealed to the High Court, with any appeal process expected to take months or years to be resolved.
“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. Irrespective of today’s decision, adults should do all they can to create a safe future for our children,” the student’s lawyer, David Barnden, said.
“We will continue to support young people in their fight for a safe future and will carefully review the decision”.
