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There’s no precedent for a problem that involves the entire planet’s atmosphere and oceans, accumulates over time and has such a fuzzy disconnect between the cause of the harm and the manifestation of that harm. We get a plastics company leaking toxins into a river; we do not get 1,000 coal plants leaking greenhouse gases into the sky.
Trying to rectify that disconnect has been the primary goal of youth climate activists around the world. Young people will be alive long after we perish, and as such, they are the ones directly connected to the consequences of decisions made today. But disproportionately, those making decisions are far older than the general population.
One clear example of this fight: a group of young Australians who sued the government, specifically the Environment Minister Sussan Ley, over the approval of a coal mine extension.
The heart of the matter was whether Ley granting an approval to the coal mine extension would cause harm to the group of children who brought the case forward. It would, as I showed in my previous article, unlock several hundred megatonnes of greenhouse gas emissions through the act of extraction, over its lifespan.
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“It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. As Australian adults know their country, Australia will be lost and the World as we know it gone as well”, wrote Justice Mordecai, in the final judgement.
“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 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”.
The ultimate decision of the Federal Court was to deliver a landmark ruling that found Minister Ley holds a duty of care to protect the children from harm, including the harm caused by the use of the fossil products created by the coal mining operation. He stopped short of granting an injunction to stop the mine, mostly because Ley hadn’t actually approved it yet, and saw the potential of a way forward through consultation between the two sides.
Ley’s first public opinion on the ruling isn’t surprising.
When asked about it at her National Press Club speech yesterday, she said “I didn’t agree with the judgement, that is the first point I want to make. The second important point was that no final orders have been made and that both I and my department are considering the judgement. The judge has asked for submissions, I think they are due in about a week and we are are preparing submissions”.
It’s not a lot of detail, but we’ll surely find out more when the submissions are made. However, what this illustrates is that these court rulings are shifting the rhetorical burden. Ley now has to openly declare that the concept that she holds a duty of care on climate is wrong. We’ve known this all along, through the government’s decisions on emissions, but it’s important that we now hear it stated explicitly.
The most significant component of Justice Mordecai’s ruling is, in my opinion, about ‘knowledge’. That is, there is no pleading innocence or ignorance in the face of climate impacts.
“Here, the Minister has at least all of the knowledge about the risk of harm to the Children which the evidence has provided. The evidence about the risk to the Children is substantial…..the Minister has the understanding provided by my determination that the Children are exposed to a real risk of harm from the Extension Project should it be approved. That is the state of knowledge that the Minister is fixed with for the purpose of this analysis”.It is perfectly aligned with the Dutch court ruling against Shell, which also showed that by enabling the supply of fossil fuels, the company was knowingly contributing in a non-zero way to the worsening of climate change. There is no mystery, no secret, and no excuse. To actively enable climate change is to be personally responsible for the damage it eventually causes, at any point in the future. Ditto for the ruling against the German government, which was forced to implement stricter climate targets because the weak ones placed an undue burden on young Germans.
That is paired with the immense power that companies like Shell, or people like Minister Sussan Ley, have.
“Here, the Minister has substantial and direct control over the source of harm and also control which flows from the situation of responsibility which the Minister occupies. Her control is also enhanced by her knowledge of the potential consequences of the conduct within her control. The salient features of control, responsibility and knowledge tend strongly in support of the existence of relations between the Minister and the Children sufficient for the common law to impose a duty of care”The ruling here is significant in that it strikes at the heart of how the Australian government has gone about shirking responsibility on climate. Through specific inaction and actions, they are allowing the new release of greenhouse gases, which heat the planet and harm people and other living things: a failure to dismantle fossil power ASAP, or to swap out fossil transport, heating and cooling with electric alternatives. Or the active, effortful policies to encourage expansion and growth of fossil mining, mostly coal and gas.
These government attitudes are coated with greenwashing, to obscure the damage. Domestic emissions are hand-waved away with empty policies like the ‘technology roadmap’. Fossil mining emissions are dismissed because they’re exported, as if the climate impacts that result will obey country borders and greenhouse accounting spreadsheets. The underlying philosophy behind these actions must be the belief that – truly – they as individuals do not feel any sense of responsibility, or a sense of duty, to care for the citizens of the country.
“It’s just a nuisance at the moment, and — but we’ve seen this before. We’ve just got to put our heads down and work our way through this with government”, said the CEO of the coal mining company, Paul Flynn, before the case was heard. After the ruling, Whitehaven happily welcomed the decision to not grant an injunction against Ley approving the mine, expecting it to be approved and asserting the coal it sells will reduce emissions. They, too, do not feel any need to protect the physical safety of young people who will be alive when the consequences of their decisions manifest in the atmosphere.
But there is hope. “I hope any young person who feels worried about their future, or frustrated about the state of inaction, feels assured that they can generate change, and becomes even more inspired to push for stronger, faster and deeper cuts to carbon emissions worldwide”, wrote Ava Princi in the Guardian, one of the eight students that brought the action against the government.
The burden of justification is shifting. It’s slow, and it may not even feel noticeable, but it really, really is. Increasingly, the onus is lying on those who once enjoyed the benefits of quiet incumbency; of the assumption that business as usual does not need to be interrogated or examined. Now, those fighting to hurt those who’ll be alive well into the mid-century have to justify themselves. It isn’t pretty to watch them saying the quiet parts out loud.
Links
- (AU Legal) Minister Found To Owe Duty Of Care To Consider Climate Change In Decision Making
- (AU The Guardian) Australian Court Finds Government Has Duty To Protect Young People From Climate Crisis
- (AU) 'A Duty Of Care': Australian Teenagers Take Their Climate Crisis Plea To Court
- Students win landmark climate case. In global first, Minister has duty of care to protect young people from climate change
- Climate change, governments and human rights
- These Aussie Teens Have Launched A Landmark Climate Case Against The Government. Win Or Lose, It’ll Make A Difference
- (AU) A Major Report Excoriated Australia’s Environment Laws. Sussan Ley’s Response Is Confused And Risky
- Climate Change Litigation Update
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