Duty of care to consider climate change impacts on children: The Sharma case

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[co-author: Shay Riley-Lewis]

The Federal Court of Australia has found that the Commonwealth Minister for the Environment has a duty of care to children when deciding whether to approve a project under the EPBC Act that would facilitate carbon emissions.

The groundbreaking decision in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 firmly plants the law of negligence, and the notion of a decision maker’s duty of care to children, into the sphere of planning and environmental decision making.

The applicants in the Sharma case (representing the children of Australia) claimed the Minister owes the children a duty of care when exercising her power under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act). They claimed that she must exercise her power with reasonable care so as not to cause them harm. The applicants also sought an injunction to restrain an apprehended breach of that duty.

The Minister’s decision related to the expansion of the Vickery coal mine in Gunnedah NSW. The expansion proposed to increase total coal extraction, add 776 hectares of disturbance area and increase carbon emissions.

The mine expansion was approved as State Significant Development by the NSW Independent Planning Commission in 2020 under the SEPP (State and Regional Development) 2011. The project was a “controlled action” under the EPBC Act, requiring the assessment and approval of the Commonwealth Minister for the Environment under Sections 130 and 133 of the EPBC Act.

The Court considered whether the Minister when exercising her duties under the EPBC Act, has a duty of care to avoid causing harm to children resulting from the additional extraction of coal from an approved mine giving rise to the production of over 100Mt of CO2.

Extensive expert evidence tendered by the applicants showed that continued emissions of CO2 will continue to increase the Earth’s average surface temperature. It was argued this would have the effect of increasing the risk and magnitude of the potential harm (physical injury, economic and property) to children from climatic hazards (such as bushfires, coastal flooding and other extreme weather events). The applicants claimed that the emission of 100 million tonnes of CO2 by the proposed mine expansion will materially contribute to the risk and magnitude of harm resulting from climate hazards.

The Minister argued that the 100 Mt of CO2 would be burnt within the fossil fuel budget of the Paris Agreement. The Court rejected this contention on the basis that no evidence was provided to support the claim and the applicants had provided evidence that at least one potential consumer of the coal was not a signatory to the Paris Agreement. The Court found instead that expert evidence claiming that the 2℃ target cannot be achieved with any new coal mines or extension to existing coal mines was to be preferred.

Bromberg J formed the view that it was open to the Court to find that an object of the EPBC Act extended to “the protection of the interests of human beings in the environment”.

The Minister’s knowledge of and control over the source of harm from emissions combined with the established reliance (or dependence as minors) on the government to protect the vulnerability of children gives rise to a duty of care.

The Court concluded that “a reasonable Minister for the Environment ought to have the Children in contemplation when facilitating the emission of 100Mt of CO2 into the Earth’s atmosphere”.

The Court did not grant an injunction, on the basis that it would impede the ability of the Minister to make a reasonable response to the duty of care which may involve formulating a decision other than refusing the application.

This decision joins a growing list of judicial responses to citizens, organisations and corporations taking action with respect to climate change concerns.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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