Climate Change Litigation: Commonwealth owes no duty of care to protect children from the impacts of climate change

A recent decision of the Full Court of the Federal Court of Australia in Minister for the Environment v Sharma [2022] FCAFC 35 has determined that the Commonwealth Minister for the Environment does not owe a duty of care to children when making decisions under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

This decision overturns a previous decision of a single Justice of the Federal Court which found the Minister for the Environment (the Minister), when assessing a proposed coal mine expansion project in New South Wales, had a duty to take “reasonable care to avoid causing personal injury” to people under 18 as a result of the impacts that such a proposal may have in directly contributing to climate change.

All three Justices to the appeal rejected this finding of a duty of care, but for varying reasons.

Importantly, the scientific basis for anthropogenic climate change was not challenged in this appeal, nor was the seriousness of the threat of global warming to humanity. The central findings rested predominantly on the application of the tort of negligence to the Minister when exercising her functions under the EPBC Act.

Findings of the Court

The judgments of the three Justices – Allsop CJ, Beach and Wheelehan JJ – are lengthy and varied, although some common findings emerge between them. All three Justices agreed that no duty of care arose in the circumstances of the case, being a decision made pursuant to the EPBC Act, legislation that is not directly concerned with climate change mitigation nor with the interests of persons under the age of 18.

Among the common findings were:

Content and scope of the “duty” –

• Chief Justice Allsop found that no duty could be imposed because doing so would require a need to re-evaluate, change or maintain an element of high public policy, the assessment of which is not suited to a determination of the courts in private litigation.
• Decisions made under the EPBC Act are often necessarily political in nature, taking into account a range of broader social policy considerations, a do not lend themselves to the imposition of a duty of care in that context.[1]

Material contribution to the harm –

• Chief Justice Allsop found that, among other reasons, the duty should not be imposed because the apportionment of the contribution made by a decision to expand a single coal mine to the harm suffered by the plaintiffs could not be determined.
• In that sense, the Minister could only be accountable for a “tiny increase”[2] in the risk of harm to the plaintiffs, given that the nature of the harm is “worldwide global climate catastrophe”[3].
• Justice Wheelehan took a similar view, going further to suggest that the actual harm that would be suffered by the plaintiffs was not reasonably foreseeable in a causation sense, as it could not be directly attributed to the Minister’s decision.[4]

Lack of special vulnerability –

• Chief Justice Allsop found that the plaintiffs were not vulnerable to the proposed harm in the relevant sense, as persons currently under the age of 18 would be “in the same position as everyone in the world who is or will be alive at the future times at which the harm is posited.”[5]
• Further to this, there was no protective relationship between the Minister and the plaintiffs to be implied by function of the EPBC Act.
• Justice Beach came to a similar conclusion, explaining that:

“…all members of the claimant class will generally be subject to the physical and economic effects of climate change. None may be able to escape that. But most will not be vulnerable to personal injury that they cannot reasonably protect themselves against, for example, those living in major cities on the Eastern seaboard. That is the focus, rather than a more diffuse and generalised concept of vulnerability ... It is not sustainable to say that all members of the claimant class today may be at a real risk of personal injury in 80 years in a manner that they cannot reasonably protect themselves against.”[6]

[emphasis added]

Indeterminate liability –

• Chief Justice Allsop further found that, if a duty could be imposed, it would create an indeterminate liability for the Minister, in attaching to all persons currently under the age of 18 and anyone as yet unborn.[7]
• Justice Beach further expanded on this conclusion, drawing heavily on the lack of ascertainable members of the suggested “class” which therefore led to indeterminable liability.[8]

Implications for climate change litigation in Australia

Climate change litigation is an evolving field in both Australia and overseas.

Previously, such actions have tended to focus on traditional merits appeal, or judicial review, challenges to approvals relating to specific ‘fossil fuel’ projects, such as new coal mines, gas projects and the like.

However, in more recent times, it seems that litigants are prepared to push the legal boundaries by raising novel arguments in an attempt to hold governments, regulatory authorities and administrative decision-makers more accountable for their actions and/or inaction. For example:

• in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92, the plaintiffs were successful in obtaining orders against the NSW EPA, requiring that it do more to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change;

• in Vanderstock v Victoria (not yet decided), the constitutional validity of legislation imposing a charge on the drivers of electric vehicles is being challenged; and

• in O’Donnell v Commonwealth (not yet decided), it is alleged that the Commonwealth Government has failed to disclose climate change risks in relation to sovereign bonds.[9]

While the attempt in Sharma’s case to extend the private tort of negligence to the Commonwealth Environment Minister exercising administrative decision-making power has been unsuccessful, one can reasonably expect that this trend will continue. All levels of government should expect to face increasing scrutiny – including via legal challenges raising novel arguments – from an increasingly well-informed public that seems desperate for greater leadership on climate change.

For more specific information on any of the material contained in this article please contact Peter Psaltis on +61 8 8210 1297 or ppsaltis@normans.com.au, or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.

[1] Minister for the Environment v Sharma [2022] FCAFC 35, Allsop CJ at [15] to [18], and [218] to [272].

[2] Allsop CJ at [334].

[3] Ibid.

[4] Wheelehan J at [869] to [886].

[5] Allsop CJ at [338].

[6] Beach J at [669] to [677].

[7] Allsop CJ at [341] to [343].

[8] Beach J at [702] to [747].

[9] Trends in Australian Climate Change Litigation: 2021, University of Melbourne.