Environmental law and negligence – representative proceeding seeking a declaration that…

…a duty of care be recognised and an injunction be granted restraining its breach – Environment Protection and Biodiversity Conservation Act 1999 (Cth) – novel duty of care – whether the Minister for the Environment owes Australian children a duty of care when approving the extraction of coal – risk of injury from climate change

At issue in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021, Bromberg J) was the novel question as to whether the Minister for the Environment owed the applicants, eight Australian children, who brought the proceedings on their own behalf and also in a representative capacity (children), a duty to take reasonable care not to cause the children personal injury when exercising her power under ss130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to approve a proposal by the second respondent (Vickery) to substantially extend its coal mine operation in Gunnedah, New South Wales (extension project).

Background

The unchallenged scientific evidence on the future trajectory of global average surface temperatures demonstrated the following:

  1. The Paris Agreement target of limiting global average surface temperature to well below 2°C, with the ambition to limit temperature to 1.5°C above the pre-industrial level, is unlikely to be achieved without significant overshoot.
  2. The best future stabilised global average surface temperature which can be realistically contemplated today is 2°C above the pre-industrial level.
  3. If the global average surface temperature increases beyond 2°C, there is a risk, ranging from very small (at about 2°C) to very substantial (at about 3°C), that the global surface temperatures will irreversibly increase to about 4°C above the pre‑industrial level by about 2100.
  4. The 100 million tonnes of CO2 attributable to the burning of coal from the extension project is likely to cause a tiny but measurable increase to global average surface temperatures. In doing so, it would increase the risk of global average surface temperatures increasing beyond 2°C and the risk of global surface temperatures being propelled into an irreversible 4°C trajectory.
  5. The risk of harm to the children from climatic hazards brought about by increased global average surface temperatures increases exponentially if the Earth moves beyond a global average surface temperature of 2°C, towards 3°C and then to 4°C above the pre-industrial level.
  6. The nature and extent of the harm that may be experienced by the children may fairly be described as catastrophic. One million of today’s Australian children are expected to suffer at least one heat-stress episode serious enough to require acute care in a hospital. Many thousands will suffer premature death from heat-stress or bushfire smoke. Further, substantial economic loss and property damage will be experienced. The Great Barrier Reef and most of Australia’s eastern eucalypt forests will no longer exist due to repeated, severe bushfires.

Do the circumstances give rise to a duty of care?

As to foreseeability of future harm, the court concluded that a reasonable person in the Minister’s position would foresee that, by reason of the effect of increased CO2 in the Earth’s atmosphere and the consequential increase in global average surface temperature, each of the children is exposed, through the occurrence of heatwaves or bushfires, to the risk of death or personal injury.

Section 136(2)(a) of that EPBC Act requires that in approving or not approving a controlled action, the Minister must take into account the “principles of ecologically sustainable development”. Those principles include what is known as the “precautionary principle”. The applicability of the “precautionary principle” to the Minister’s decision-making attunes both the foresight and response required of a reasonable person in the Minister’s position to the risks that the plausible scientific evidence confirms will be faced by the children.

The court concluded that the foreseeability of the probability of harm from the Minister’s conduct may be small, but where the consequent harm was so immense, it “powerfully supports” the conclusion that the children should be regarded as persons who are so closely and directly affected, that the Minister ought reasonably to have them in contemplation as being so affected when directing her mind to granting approval of the extension project (at [257]).

The evidence further demonstrated to the court’s satisfaction that the children were extremely vulnerable to a real risk of harm from a range of severe consequences caused by climate change, or more specifically, increased global average surface temperature brought about by increased greenhouse gases in the Earth’s atmosphere (at [289]).

The court accordingly found that the relationship between the Minister and the children justified the intervention of the law of negligence and that the Minister had a duty to take reasonable care to avoid causing personal injury to the children when deciding, under ss130 and 133 of the EPBC Act, to approve or not to approve the extension project.

Does an injunction lie against the Minister?

The children sought a quia timet injunction to restrain the Minister from exercising her power under ss130 and 133 of the EPBC Act in a manner that would permit the extraction of coal from the extension project. In refusing injunctive relief, the court was not satisfied that a reasonable apprehension of breach of the duty of care by the Minister had been established nor that the extent of the restraint they sought was justified.

Anthony Lo Surdo SC is a barrister, arbitrator and mediator in 12 Wentworth Selborne Chambers, Sydney, and Lonsdale Chambers, Melbourne. Theresa Power is a barrister in 12 Wentworth Selborne Chambers, Sydney.

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