Environmental Law Australia

Sharma v Minister for the Environment

This case study examines a stunning, novel and groundbreaking decision on the duty of care for climate change in Australia with enormous implications for future climate litigation.

A courageous and ambitious case

The case was brought by a group of eight brave children led by Anj 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 case was very couragous and ambitious, leaping out of the normal constraints for challenging administrative decisions by taking a pre-emptive attack before a decision was made.

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 before a decision was made.

The Minister denied any duty of care was owed to the children or that the project would cause the harm alleged.

Bromberg J rejected the Minister’s arguments in Sharma v Minister for the Environment [2021] FCA 560 and 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].

Watch Bromberg J deliver the pubic summary of his judgement, which was livestreamed on 27 May 2021 (16 minutes):

A good Podcast explaining the decision is available here (15 minutes).

After allowing time for further submissions, on 8 July 2021 Bromberg J delivered a second decision in which he declared:

The [Minister] has a duty to take reasonable care, in the exercise of her powers under s 130 and s 133 of the [EPBC Act] in respect of [the coal mine expansion], to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere.

A novel pre-emptive attack

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.

Given the opportunity to make a decision and findings of fact, the Minister would have undoubtedly used the same formula as previous Federal Environment Ministers have since the Wildlife Whitsunday case in 2006 and the Anvil Hill Case in 2007, that the impacts of approving a mine (or a gas project) on climate change are too “uncertain” and “speculative” and, therefore, can be discounted.

This formula and the limitations of judicial review have allowed the Minister to continue to approve large coal mines (and gas projects) for over a decade while, on paper at least, not disputing climate change is real. The Minister has used this formula many times since these earlier cases, for instance as a basis for approving the massive Adani Mine without finding it would impact on climate change. This formula allows the Minister to avoid outright climate denial while, simultaneously, avoiding recognition of the impacts of approving large coal mines and gas projects. It is a formula straight from the climate delayers handbook (accepting climate change is real but finding any possible excuse to avoid taking immediate action now).

The applicants in Sharma v Minister for the Environment [2021] FCA 560 avoided waiting for the Minister (or a delegate) to make these ritualistic factual findings and, instead, dragged the Minister before a court in which they could tender evidence of climate experts and have the court make findings of fact based on the merits of this evidence and their claim to substantive rights (not merely procedural rights as in judicial review).

They were able to pre-empt the Minister’s decision by seeking a quia timet injunction (quia timet is a Latin term that translates as “because it is feared”). As Bromberg J discussed at [407], a quia timet injunction may be granted where an applicant establishes that what the respondent is threatening and intending to do will cause imminent and substantial damage to the applicant.

In this case the applicants sought a quia timet injunction to restrain the Minister approving the coal mine extension project on the basis that there is a reasonable apprehension that the Minister will approve it, and, thereby, there is a reasonable apprehension of a breach of the duty of care to them.

Bromberg J declined to grant a quia timet injunction because he wasn’t satisfied that the Minister would breach the duty of care once made aware of its existence by a decision of the Court (see [499]-[512]).

The failure to obtain an injunction does not mean that the applicants failed overall, particularly in the context that it was really more of a vehicle to run the case on the merits and have the court rule on the existence of a duty of care based on evidence from climate scientists.

Faced with the alternative of waiting and seeking judicial review after the Minister (or a delegate) had approved the mine (in which the reasons for the approval would all be stacked against finding liability), the applicants’ choice to pre-empt the decision by attacking it before it was made was truly inspired and novel.

The success of their novel, pre-emptive attack on the Minister’s decision before it was even made is jaw-dropping not only for climate law but in terms of Australian administrative law generally.

A truly remarkable decision

In his decision, Bromberg J carefully considered the climate science presented to him. His truly remarkable judgement lays the foundation for an excellent factual basis to defend (the certain) appeal.

Amongst many other factual findings of the dire impacts of climate change, Bromberg J found at [293]:

“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. The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. 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.”

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.

Will it survive appeal?

The Minister announced the day after the declaration was made she would appeal the decision.

The appeal lies to the Full Federal Court, where three judges will hear the appeal. The appeal is listed for hearing by videolink on 18-20 October 2021.

Whoever loses the appeal can seek special leave to appeal to the High Court. Special leave applications are heard by two High Court judges. Less than 10% of cases seeking special leave to appeal are granted it. Generally, the case must raise a matter of general importance for Australian law. This case definitely fits in that category, so it seems highly likely to be granted special leave to appeal once it reaches the High Court.

Assuming special leave to appeal to the High Court is granted, the appeal will be heard by 5 judges (unless it is considered to raise Constitutional issues, in which case it will be heard by all 7 members of the High Court).

The timeframe for a final decision of the High Court is likely to be around 2-3 years from the trial decision.

Whether Bromberg’s decision will survive appeal is uncertain. It may be that his construction of the EPBC Act and other aspects of his decision are a leap too far for the judges hearing the appeals.

However, one of the huge strengths for the applicants in defending the appeal is that Bromberg J’s findings of fact cannot normally be challenged (with limited exceptions). This means that his findings in relation to climate change are very likely to form the factual foundation for the appellate courts to consider the relevant legal principles, such as whether a duty of care is owed in making a decision to approve the mine expansion. This is very significant and similar to the advantage that the Minister normally enjoys in defending judicial review of administrative decisions (where the Minister’s findings of fact or their merits cannot normally be challenged).

Whatever happens, this is an amazing decision

While, obviously, the importance of this decision would be enormously amplified if it leads to a groundbreaking decision by the High Court, even it it does not survive on appeal, this is an amazing decision that will reverberate for many years.

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

Bromberg J’s reasoning lays out the factual and legal basis for others to base claims in negligence at common law against governments and companies that breach their duty of care to avoid harm due to climate change.

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, therefore, enormous and hard to understate.

Groundhog Day as Minister approves mine

Despite the Federal Court’s decision, on 15 September 2021 the Minister granted approval for the proposed mine expansion.

The Minister’s statement of reasons addressed “Duty of care and human safety” at [163]-[282], making a tour de force of the Drug Dealers Defence on climate change (“if we didn’t supply the coal, another mine would, so allowing this mine will have no impact on climate change”).

The Minister found, at [204] (with similar findings elsewhere):

“[204] I accepted the department’s view that the approval of the proposed mine is not likely to cause harm to human safety because, if the proposed action is not approved, it is likely that a comparable amount of coal will be consumed in substitution of the proposed action’s coal. Therefore, I found that the proposed action is unlikely to result in an increase in global GHG emissions.”

The Minister’s approval of the mine using the Drug Dealers Defence while paying lip-service to the duty of care identified by Bromberg J is a Groundhog Day moment, where the past repeats. Whether we are at the start of that movie, or near the end, remains to be seen.

At this point we appear to be somewhere in the middle of the movie where the past repeats rapidly. Two weeks after approving the mine expansion using the Drug Dealers Defence, the Minister relied on the same reasoning to approve another large coal mine, the Mangoola Mine in NSW. That approval authorised extraction of 52 Mt of thermal coal over 8 years, generating around 105 Mt GHG (scope 1, 2 and 3) emissions. The Minister again found in her statement of reasons:

“[200] I accepted the department’s view that the approval of the proposed action is not likely to cause harm to human safety because, if the proposed action is not approved, it is likely that a comparable amount of coal will be consumed in substitution of the proposed action’s coal. Therefore, I found that the proposed action is unlikely to result in an increase in global GHG emissions.”

The virtually verbatim repetition of this formulaic reasoning in approving the two mines is not accidental but, rather, the application of a deliberate strategy (devised by departmental staff and lawyers advising the Minister) to minimise the potential for successful judicial review in relation to the Minister’s reasoning about climate change. The merits of this reasoning cannot be challenged in judicial review. Groundhog Day is likely to keep repeating for the foreseeable future in similar approvals.

Key documents

Pleadings*

Expert reports

Trial decisions

Appeal

Minister’s approval of mine

* Thanks to the Applicant’s solicitors, Equity Lawyers, for making the pleadings available on their website. Congratulations to David Barden, Emrys Nekvapil and all involved in this case for their vision and courage in bringing it.

Given the significant public interest in the matter, the Federal Court has created a publicly available Online File for the appeal available at this link.

Media reports about this case

Class action to stop planned coal mine extension filed by climate action-focused Australian teenagers, ABC News, 9 September 2020.

‘A duty of care’: Australian teenagers take their climate crisis plea to court, The Guardian, 2 March 2021.

Anjali Sharma breaking new ground in climate fight, Sydney Morning Herald, 5 March 2021.

Australian court finds government has duty to protect young people from climate crisis, The Guardian, 26 May 2021.

Australian teenagers’ climate change class action case opens ‘big crack in the wall’, expert says, ABC News, 27 May 2021.

We are passionate climate warriors. Our legal battle is not over but my heart is a bit lighter, The Guardian, 28 May 2021.

Teen environmental activists have a ‘victory’, says lawyer, Kids News, 2 June 2021.

PODCAST: The judgement that changed climate law in Australia, 7am, 5 July 2021.

Judge’s duty-of-care ruling blow for coal, Australian Financial Review, 8 July 2021.

Australian government must protect young people from climate crisis harm, court declares, The Guardian, 8 July 2021.

Australia govt to appeal court ruling on climate change duty of care, Reuters, 9 July 2021.

Children are our future, and they are leading the way on climate change, Environmental Defenders Office, 9 July 2021.

Australian government to appeal ruling that it must protect children from climate harm, The Guardian, 9 July 2021.

“Embarrassing:” Ley to appeal court ruling she has duty of care to young people on emissions, RenewEconomy, 9 July 2021.

‘One more mine does make a difference’: Australian children argue for the climate – and the law agrees, The Guardian, 10 July 2021.

Human rights issue or ‘green lawfare’? Citizens take to the courts to fight climate change, ABC RN, 27 July 2021.

Environment Minister approves Vickery coal mine extension after teenagers’ climate change legal challenge, ABC News, 16 September 2021.

Whitehaven Coal’s Vickery mine given green light by environment minister, The Guardian, 16 September 2021.

Third new coal project approved by Australian environment minister Sussan Ley in just one month, The Guardian, 5 October 2021.