In its decision yesterday, the Full Federal Court overturned last year’s ground-breaking decision in Sharma v Minister for the Environment [2021] FCA 560 (Sharma).
The Full Federal Court rejected the novel duty of care in relation to climate change which had been argued successfully at first instance. The court stressed that the evidence of the threat of climate change and global warming was not substantively contested. Chief Justice Allsop stated that “the nature of the risk and dangers from global warming including the possible catastrophe that might engulf the world and humanity were not in dispute.”
That earlier decision, in a case led by 16-year-old Anjali Sharma, held that the Minister for Environment owed a duty of care to Australian children to consider climate change harms when considering whether to approve a coal mine project in New South Wales under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) . It was the first case in which an Australian court had found such a duty of care. This reflected a global trend (influenced by the landmark Urgenda litigation against the Dutch government) of claimants seeking to impose duties on governments and their officials to consider the impacts of climate change on their citizens.
Sharma’s representatives led uncontested evidence at the trial of the consequences to Australia of a 2oC increase in global temperatures: sea level rise, extreme heat, coral bleaching, biodiversity loss and intensifying bushfires and other natural disasters. Chief Justice Allsop held that “it was open to the primary judge to find that there is a real (being a small but not-zero) risk that an increase in CO2 emissions which caused an even infinitesimal increase in global average temperature above 2°C could trigger a tipping cascade and consequently an irreversible 4°C future world trajectory.”
Notwithstanding that the risks and dangers of global warming were not disputed, the Full Court found unanimously that no duty of care should be imposed on the Minister to consider the impact of climate change on children in making decisions under the EPBC Act. Reflecting the novelty and complexity of the arguments, each judge allowed the appeal on different grounds.
The reasoning of the Court necessarily involved a detailed assessment of the role of the Minister in the context of the particular statutory power and the overall statutory scheme at Commonwealth and State level. Justice Wheelahan considered that the Minister had not been given the specific responsibility to protect the public from the effects of climate change by the EPBC Act. His Honour also found that “there is not a sufficient basis to be satisfied that a duty of care can sit coherently with the political and policy issues that arise.” Chief Justice Allsop also held:
A consideration of the proper response to the present risks, future dangers and potential harm to the world, humanity, and the Children is a matter of high public policy. To the extent that the evidence and the uncontested risks of climate catastrophe call forth a duty of the Minister or the Executive of the Commonwealth, it is a political duty: to the people of Australia.
Justice Beach did not agree that policy considerations prevented the imposition of a duty of care but found against the imposition on other grounds. Ultimately, the consideration of the role of the Minister under the EPBC Act may limit the wider application of the Full Court’s multi-reasoned decision.
The Full Court’s decision is similar in some respects to the reasoning of the New Zealand Court of Appeal in Smith v Fonterra [2021] NZCA 552 (Fonterra). The New Zealand Court of Appeal declined to find that private corporations were bound by a novel duty of care to avoid, reduce or cease emitting activities. In both Sharma and Fonterra, these appellate courts have recognised the grave and present danger of climate change, but in each case the court has declined to impose a climate change duty of care.
Justice Beach’s judgment indicated that it was for the High Court to engineer “new seed varieties” for duties of care in the context of climate change. It is not yet known whether the claimants intend to appeal the decision.
