Insights

Stunning Federal Court decision blows open duty of care for climate change in Australia

Justice Bromberg of the Federal Court today delivered a stunning decision that blows open the duty of care for climate change in Australia.

The decision, Sharma v Minister for the Environment [2021] FCA 560, will reverberate for many years to come.

The case was brought by a group of eight brave children led by Anjali Sharma (with the assistance of 86 year-old litigation guardian Sister Brigid Arthur), against the Federal Minister for the Environment to protect young people from the future harm caused by the climate change impacts of a proposed coal mine extension project in NSW known as the Vickery Extension Project.

The applicants argued that in deciding whether the approve the coal mine expansion under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), the Minister has a duty to protect young people from the devastating impacts of climate change. They asked  the Court to grant an injunction to prevent the Minister from doing so.

Bromberg J found (at [491] and [513]):

… 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 … the EPBC Act, to approve or not approve the [coal mine expansion].

Even though Bromberg J didn’t grant the injunction, the value of seeking it and declarations (rather than wait for judicial review) is now obvious: it allowed the applicants to call evidence and run a merits case rather than waiting for the Minister to make biased factual findings.

Bromberg J carefully considered the climate science in the decision, which lays the foundation for an excellent factual basis to defend (the certain) appeal.

Bromberg J’s judgement is clearly written with appeal in mind. It carefully dealt with the facts and made an extensive analysis of the law on establishing a novel duty of care.

Even though the case involved a duty of care under a statute (the EPBC Act), its implications are far, far wider.

It opens the way for mining companies and fossil fuel polluters to be held liable for damages in negligence due to their emissions contributing to climate change.

The implications of this decision are enormous and hard to understate.

Separate landmark decision in the Hague against Royal Dutch Shell

This Australian decision comes a day after the District Court in the Hague ordered Royal Dutch Shell (RDS) to cut its global carbon emissions by 45% by the end of 2030 compared with 2019 levels, in a landmark case brought by Friends of the Earth and over 17,000 co-plaintiffs.

The English version of the decision is available here.

The Court found (at 4.4.55):

The court concludes that RDS is obliged to reduce the CO2 emissions of the Shell group’s activities by net 45% at end 2030, relative to 2019, through the Shell group’s corporate policy. This reduction obligation relates to the Shell group’s entire energy portfolio and to the aggregate volume of all emissions (Scope 1 through to 3).

In summary, the main points of that case (in the Hague) were:

1 Royal Dutch Shell had a duty of care and that the level of emission reductions of Shell and its suppliers and buyers should be brought into line with the Paris climate agreement.

2 Royal Dutch Shell must reduce its emissions by 45% net by the end of 2030.

3 Shell is also responsible for emissions from customers (scope 3) and suppliers.

4 There is a threat of human rights violations to the ‘right to life’ and ‘undisturbed family life’.

5 Shell must comply with the judgment immediately, because Shell’s current climate policy is not concrete enough.

These two amazing decisions on opposite sides of the world in two days are not just groundbreaking: they are magnitude 8.0 earthquakes for climate liability globally.

Case study and Podcast

A case study of Sharma is available at this link.

A (15 minute) Podcast discussing Sharma is available at this link.

 

Dr Chris McGrath

Higgins Chambers

27 May 2021