By Belinda Rayment, Special Counsel
In the 1980s we all sang along with Whitney Houston believing that children are our future. But this soppy sentiment takes on a whole new meaning in the context of climate change. Today’s children are terrified of what the future holds for them and have been teaching themselves well and are leading the way on this issue – not because they want to, but because their future literally depends on it.
There are many examples of young people leading the way – Greta Thunberg, Yusuf Baluch, Anna Kernahan, Mai Thi Thuan and Sarah Goody continue to pave the way in holding governments around the world to account on climate policy.
We have also seen an increase in young people bringing climate change before the Courts globally – in the Netherlands, America, Canada and Australia.
The latest Australian case putting young people and climate harm in sharp focus is also brought by a group of children, Sharma v Minister for the Environment (Sharma).1 There are eight applicants in the case, all under the age of 18.
In Sharma, the Federal Court held that the Commonwealth Environment Minister, Sussan Ley, owes all Australian Children (Children) a duty of care when she decides whether to approve or refuse an extension to an existing coal mine (Extension Project)2 under Australia’s Commonwealth environmental law (EPBC Act).3 This is the first time such a duty has been recognised in Australia.
Whilst the Court stopped short of preventing the Minister from approving the Extension Project, this case is significant for many reasons. First, the climate science presented is dire and undisputed. Second, a sufficient link between the Children and exposure to climate-induced heat stress and harm from bushfires has been established. Third, it has been found that the Children will be so closely and directly affected by an approval of the Extension Project that the Minister is required to take reasonable care to avoid causing them harm arising from an increase in CO2 emissions. Finally, Sharma opens the door for this duty to be applied to all coal (and gas) projects currently being considered by the Minister, and potentially any consent authority in Australia.
In the words of Bromberg J, our Children are inheriting an unknown world, which “will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.”4
The time is now for young people to demand a better future and Sharmaoffers a glimmer of hope.
What is the Extension Project?
Whitehaven Coal proposes to construct an open-cut coal mine on a site near Gunnedah in NSW. The proposal is an extension of an already approved coal mine and was approved under NSW laws in August last year.
The Extension Project also requires the approval of the Commonwealth Environment Minister under the EPBC Act because it may have a significant impact on threatened species – including koalas, regent honey-eaters and swift parrots- as well as the Namoi River.
If approved, the Extension Project will clear 189 hectares of native vegetation and permit the extraction of an additional 33 million tonnes of coal. Once exported and burnt, this coal would cause 100 million tonnes of CO2 to be emitted into the atmosphere – the very thing we must stop if we want to avoid catastrophic climate change or, as Professor Will Steffen puts it, a Hothouse Earth Scenario.
The undisputed climate evidence
Professor Steffen provided expert evidence on behalf of the Children. The Court accepted Professor Steffen’s evidence in its entirety and found that:
- it is now unlikely the temperature target set out in the Paris Agreement5 will be achieved without significant overshoot;
- a 2 degree rise in global temperature is the best we can “realistically” contemplate; and
- if the global average surface temperature rises beyond 2 degrees, there is a risk that Earth’s natural systems will put us on an irreversible trajectory of 4 degrees.
Professor Steffen describes 4 degrees as the “Hothouse Earth Scenario.” Under this scenario, much of Australia’s inland areas will become uninhabitable for humans, the south east and south west agricultural zones will become largely unviable, Australia’s large coastal cities will suffer increasing inundation and flooding from storm surges, the Great Barrier Reef will no longer exist and most of the eastern eucalypt forests will disappear due to repeated, severe bushfires.6
Importantly for this case, the accepted evidence is that the Earth could be locked into a Hothouse Earth Scenario if we go over 2 degrees even by a small amount. At this point, humans will have lost control of the climate and temperatures will continue to rise even if we are decreasing CO2 emissions. This is of particular relevance to this case because it demonstrates that the amount of CO2 emissions caused by the Extension Project, even though they may be “tiny” in the context of global emissions, could be enough to cause this tipping point which will, in turn, expose the Children to a greater risk of injury.7
This paints a dire picture of our Children’s future. Thankfully, it’s not all doom and gloom. Professor Steffen says there is a 67% chance of achieving a 2 degree future world if we cap our global emissions to about 855 gigatonnes.8 To do this, all major emitting countries, including Australia, need to reach net-zero emissions by 2050.
Professor Steffen is of the view that this will only be possible if currently operating coal mines are phased out as soon as possible (preferably no later than 2030) and that “no new coal mines, or extensions to existing coal mines, can be allowed.”9
The Court also found that the evidence demonstrated the risk of harm to the Children from temperature-induced climatic hazards is on a continuum where both the degree of risk and the magnitude of potential harm will increase exponentially if the Earth moves beyond 2 degrees, towards 3-4 degrees of warming.10
The Minister’s evidence
The Environment Minister did not put any climate evidence before the Court and did not challenge Professor’s Steffen’s evidence on likely future scenarios.
However, the Minister did argue that the 100mt of CO2 emissions from the Extension Project would comply with the Paris Agreement and the remaining carbon budget that will keep warming to lower than 2 degrees. The Court did not accept this argument and said that the “Minister relied upon little else than speculation, in circumstances where the evidence showed that at least one of the potential consumers of the coal is not a signatory to the Paris Agreement.”11
In any event, the Court agreed with Professor Steffen that if there is no capacity to include 90% of existing Australian reserves of coal in the carbon budget, “it seems unlikely that a capacity for new reserves to be included exists.”12
Evidence of climate harm
The Children alleged a long list of climate harm – including personal injury, property damage and economic loss – arises from direct impacts (such as bushfires, heatwaves and coastal flooding), indirect impacts (such as sea-level rise and increasing loss of non-human species and ecosystems, on land and in oceans) and flow-on impacts (such as food insecurity, social and political unrest and mental harm caused by solastalgia13).
The Children’s claims of property damage and economic loss were unsuccessful,14 as were their claims for personal injury from indirect impacts and flow-on impacts.15 This left the Court to consider whether to impose a duty on the Minister to avoid personal injury to the Children from direct impacts such as bushfires, heatwaves and coastal flooding.
Heatwaves
The Court heard evidence from Dr Mallon about heat stress caused by heatwaves during the years 2070 to 2100. Dr Mallon said that, in the last 20 years of the Children’s lives, on average one in five will suffer from at least one heat stress episode serious enough to require acute care in hospital.16
Dr Meyricke gave evidence about possible future impacts of heat and heatwaves on mortality, including the effects of these impacts on the Children. One stark statistic put forward by Dr Meyricke is that heatwaves have caused more deaths since 1890 than bushfires, cyclones, earthquakes, floods and severe storms combined.17
The Court also heard evidence from Dr Capon that heatwaves are the deadliest natural hazard in Australia, that climate change will increase their frequency and intensity and, as a result, there will be an increase in the risk to health.18
The Minister did not bring any evidence of her own and did not challenge the evidence brought by the Children. The Court accepted the evidence and found that there is a sufficient link between the Children and the exposure to heat stress. The Court was then satisfied that a reasonable person in the Minister’s position would foresee that each of the Children is exposed to a real risk of death or personal injury from heatwaves induced by climate change.
Bushfires
The Black Summer fires played a central role in demonstrating the risk of personal injury or death due to bushfires caused by climate change. Several former fire chiefs and senior emergency services staff gave evidence about the increased frequency of major bushfires, increased bushfire intensity and spread, longer fire seasons, climate-driven fire mitigation constraints, increasing incidence of bushfires in rainforests and the impact of climate change in reducing the ability of nature to slow or stop the bushfire spread.
The Court concluded from the evidence that “the spread of bushfire smoke from a catastrophic fire is vast and more than capable of affecting every Australian.”19 The Court also tragically concluded that it is “undoubtably likely” that many hundreds or thousands of the Children will be killed or injured by climate change bushfires in the future.
Although everyone will be affected by bushfire smoke, the Court found that it is the Children who will be here to “fully experience the wholesale destruction by fire of much of Australia’s forests.”20 As such the Court was satisfied that each of the Children is exposed to a real risk of harm from bushfires and that this risk would be foreseeable by a reasonable person in the position of the Minister.21
Flooding and cyclones
There was “scant” evidence put before the Court about the direct impacts of flooding and cyclones on the Children and the Court could not conclude that each child was exposed to a real risk of injury. The Court did find that it was reasonably foreseeable that there would be “some harm to some of the Children.”22
What is the duty the Children say the Minister owes to them?
The duty was described by the Court as meaning:
“a duty on the Minister to take reasonable care in the exercise of her statutory powers not to cause the Children harm arising from the extraction of coal from the Extension Project and the consequent emission of CO2 into the Earth’s atmosphere.”23
The Court confined its consideration of a novel duty of care to Australian Children (as opposed to all children) and to the Extension Project (as opposed to all coal projects). This was because the applicant’s evidence and submissions were directed in this way.
Does the Minister owe the Children a duty of care?
In deciding whether such a duty exists, the Court was required to ask itself “whether a reasonable person in the position of the Minister would foresee that the approval of the Extension Project would expose the Children to a risk of personal injury.”24 There needs to be a real risk of the harm occurring.
The Children did not argue that the Minister caused the climate harm directly but that there is a “series of steps” between the Minister’s conduct and each category of climate harm. This is because the risk of climate harm depends on future CO2 emissions increasing global temperatures which then leads to an increase in climate hazards, such as heatwaves and bushfires. The climate science relied upon by the Children to establish the link between these events was not disputed by the Minister and was accepted by the Court.
The Court ultimately came to the view that the Minister did owe the Children a duty of care. A significant factor in the Court reaching this decision is the acceptance by the Minister of the climate evidence presented by the Children and that the harm to the Children arising from an approval of the Extension Project was reasonably foreseeable.
The Court found that, should the Minister approve the Extension Project, it would only contribute a “tiny” amount to the risk of the Children’s exposure to harm. However, in the context of there being a real risk that even an infinitesimal increase in temperature may trigger the Hothouse Earth scenario, the Minister’s decision was found to be significant enough to pose a real risk of harm to the Children.25
The Court also found that the Minister has“very substantial, if not exclusive, control”26 over this real risk of harm to the Children and that she has “at least all of the knowledge” about the risk that was put before the Court, which is substantial and uncontested.
Knowing about the risk of harm means that the Minister should think of the Children when making a decision on whether nor not to approve the Extension Project because the Children will be so closely and directly affected by any approval.27
The Court spoke passionately and forcefully about what the future holds for our Children:
“Australia will be lost and the World as we know it will be gone as well. The physical environment will be harsher, far more extreme and devastatingly brutal when angry….Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain….None of this will be the fault of nature itself. It will largely be inflicted be the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.”28
The Court went on to say that the Children are vulnerable not only because of the magnitude of risk of climate harm they face but also because of their powerlessness to avoid it.29 The fact that the Children are in no way responsible for the future they are facing was found to favour imposing a duty on the Minister.
The Minister argued that the duty should not exist because it would be owed to “everyone, everywhere”and the potential liability would be of “astonishing extent and breadth.”30 The Court did not accept this “floodgates” argument because the evidence in this case readily identifies the potential claimants and the nature of their claims and the fact that the Minister will not be the only entity to bear responsibility for the harms alleged by the Children, should those harms eventuate.31
The Minister also argued that the duty would interfere will her statutory duty to address climate change. The Court rejected this argument by finding that the duty will not and cannot address climate change and that it does not mandate a refusal of the Extension Project.
Why didn’t the Court grant an injunction?
The Children asked the Court to make an order preventing the Minister from making a decision that would permit the extraction of coal in accordance with the Extension Project. The Court did not make this order.
For the Court to grant an injunction it must be satisfied that a reasonable apprehension of a breach of the duty of care has been established and that imminent and substantial damage will be caused to the Children by the breach.
The Court decided that an approval of the Extension Project did not necessarily mean that there was a breach of the duty of care. The Minister is now aware that the duty to the Children exists and has been put on notice to exercise her discretion with that in mind.
The Court also found the relevant harm was not imminent and that it is better to wait and see what the Minister proposes to do before deciding whether any breach should be restrained.
What’s next?
The Court made a declaration32 that the Minister has a duty to take reasonable care, in the exercise of her powers under the EPBC Act33 in respect of the Extension Project, to avoid causing personal injury or death to the Children34 arising from emissions of carbon dioxide into the Earth’s atmosphere.
As it stands, the Minister only owes the Children a duty of care when making a decision about the Extension Project. This means that each time a coal project is being considered by the Minister new proceedings will need to be brought seeking a declaration that the duty applies to the Minister’s decision in relation to that project.
However, in its reasons the Court left open the possibility for it to “consider a wider description”35 of this duty. This is a significant because it may provide an opportunity to broaden the scope of the duty to include climate harm (personal injury) arising from the extraction of coal from any coal project, not just the Extension Project. It may even be possible to extend the duty to apply to other decision-makers considering the approval of fossil fuel projects, including gas.
1 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560.
2 Proposal by Vickery Coal (owned by Whitehaven Coal) to extend an approved open-cut coal mine near Gunnedah in NSW.
3 Environment Protection and Biodiversity Conservation Act 1999 (Cth).
4 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 at [293].
5 To limit global average surface temperature to well below 2 degrees, with an ambition to limit temperatures to 1.5 degrees above pre-industrial levels
6 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 at [69].
7 Ibid at [32]
8 Ibid at [71].
9 Ibid at [73].
10 Ibid at [75].
11 Ibid at [86].
12 Ibid at [87].
13 The term solastalgia refers to the distress that is produced by environmental change impacting on people while they are directly connected to their home environment.
14 Ibid at [159].
15 Ibid at [204].
16 Ibid at [212].
17 Ibid at [215].
18 Ibid at [223].
19 Ibid at [233].
20 Ibid at [234].
21 Ibid at [235].
22 Ibid at [236].
23 Ibid at [94].
[24 Ibid at [186].
25 Ibid at [253].
26 Ibid at [284].
27 Ibid at [287].
28 Ibid at [293].
29 Ibid at [296].
30 Ibid at [435].
31 Ibid at [471].
32 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774
33 ss 130 and 133.
34 The term Children refers to those persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding.
35 Ibid at [94].
