The Conversation - Jacqueline Peel | Rebekkah Markey-Towler
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AAP Image/Dean Lewins
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The federal court has unanimously decided Federal Environment Minister Sussan
Ley does not have a duty of care to protect young people from the harms of
climate change.
The ruling overturns
a previous landmark win
by eight high school students, who sought to stop Ley approving a coal mine
expansion in New South Wales.
While the judge did not prevent the mine
expansion, he agreed the minister did indeed have a duty of care to children in
the face of the climate crisis.
Ley’s successful appeal is
disappointing. As legal scholars, we believe the judgment sets back the cause of climate
litigation in Australia by two decades, at a time when we urgently need climate
action to accelerate.
So why was Ley successful?
The federal court’s 282-page judgment offers myriad
reasons for why no duty should be imposed on the minister.
But what emerges most
clearly is the court’s view that it’s not their place to set policies on climate
change. Instead, they say, it’s the job of our elected representatives in the
federal government.
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Environment Minister Sussan Ley successfully argued she doesn’t
have a duty of care to protect young people from climate
change. AAP Image/Ethan James
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What did the judges say?
In the original class action case filed in 2020,
a single federal court judge
decided Ley owed Australian children a common law duty of care when considering
and approving the coal mine extension, under Australia’s
Environment Protection and Biodiversity Conservation
(EPBC) Act.
This required the minister to take reasonable care when exercising her powers to
avoid causing Australian children under 18 personal injury or death from carbon
dioxide emissions.
Ley appealed this decision in July last year. She also approved the
coal mine extension, arguing her decision wouldn’t contribute to global warming
because even if the mine was refused, other sources would step in to meet the
coal demand.
And today, in a live-streamed proceeding, the full bench of the federal court
ruled in her favour: the stated duty should not be imposed on the minister.
While the outcome was unanimous, the three judges
had separate reasoning.
One judge saw climate change as a matter for government, not the courts, to
address, saying the duty would be an issue “involving questions of policy
(scientific, economic, social, industrial and political) […] unsuitable for the
Judicial branch to resolve”.
Another said there was insufficient “closeness” and “directness” between the
minister’s power to approve the coal mine and the effect this would have on the
children. But he left open the possibility of a future claim if any of the
children in the class action suffered damage.
The third judge had three main reasons. First, the EPBC Act doesn’t create a
duty-of-care relationship between the minister and children. Second,
establishing a standard of care isn’t feasible as it would result in
“incoherence” between the duty and the minister’s functions. Third, it’s not
currently foreseeable that approving the coal mine extension would cause the
children personal injury, as the law is understood.
The good news: climate science remains undisputed
In the original case, the judge made landmark rulings about the
dangers of climate change, marking a significant moment in Australian climate
litigation.
He found one million of today’s Australian children are expected to be
hospitalised due to heat stress, they’ll experience substantial economic loss,
and when they grow up the Great Barrier Reef and most eucalypt forests won’t
exist.
According to the judge, this harm was “reasonably foreseeable”.
This is important
from a legal point of view, as courts have previously considered climate change
to be speculative, and a future problem.
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Luca Saunders, 16, Anjali Sharma, 17, Izzy Raj-Seppings, 15, and
Ava Princi, 18, were among eight children behind the landmark
court case. AAP Image/Dean Lewins
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As part of her appeal, Sussan Ley argued that these findings, based on
presented evidence, were incorrect and went beyond what was submitted to the
court. Today, these arguments were unanimously rejected.
The federal court found all the minister’s criticisms on the evidence of climate
change were unfounded and all of the primary judge’s findings were appropriate
to be made. As Chief Justice Allsop concluded:
[B]y and large, the nature of the risks and the dangers from global
warming, including the possible catastrophe that may engulf the world and
humanity was not in dispute.
But while this reaffirms acceptance that climate science
is unequivocal, it does
nothing to prevent mounting climate change harms, most recently made clear by
the devastating floods
across NSW and Queensland.
Indeed, it only turns this responsibility back to the current federal
government, which has policies increasingly at odds with what the science and
concerned citizens say is needed.
Bucking the trend
This was a test case in Australian law, as it explored a novel legal argument.
Its failure will likely put a dampener on innovative climate litigation in
Australia.
Today’s judgment asserts that the courts are limited in what they can do to
address climate change. It goes against the trend of successful climate change
court rulings overseas, and the widespread mobilisation across community groups,
business and local governments for action.
Just last year, for example, we saw a
court in The Hague order
oil and gas giant Shell to reduce carbon dioxide emissions by 45% by 2030,
relative to 2019 levels, and a
German court ruling
that the government’s climate goals were not strong enough.
Today’s federal court finding that dealing with coal mine emissions is for
governments alone seemingly reimposes barriers to climate litigation in
Australia, carefully dismantled by the
previous two decades of climate change cases.
We’ve seen a number of landmark climate cases in Australia. This includes the
Rocky Hill verdict
where a judge rejected a new coal mine on climate grounds, and the Bushfire
Survivors case where the court found the NSW government had a legal obligation
to take
meaningful action on climate change.
These brought the glimmer of hope that where the federal
government fails to act, the courts will step in. Today’s ruling suggests this
is no longer the case.
In the lead up to the Australian
federal election, the appeal
outcome emphasises the importance of changing government policy if we’re going
to get better outcomes on climate change in this country. Climate change
certainly will not wait – the fight for a safe climate future continues.
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