Pointon, Revel --- "Duty of care to children: The Sharma case and its broader implications" [2021] PrecedentAULA 62; (2021) 167 Precedent 4

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DUTY OF CARE TO CHILDREN

THE SHARMA CASE AND ITS BROADER IMPLICATIONS

By Revel Pointon

In the decisions of Bromberg J in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (Sharma) and Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No. 2) [2021] FCA 774 (Sharma (No. 2)), a novel duty of care to Australian children has been established in law as a mandatory relevant consideration of the Federal Minister for the Environment (Minister), particularly where Australian children may be at risk of suffering the potential for ‘catastrophic harm’ from climate change effects.^[1]

The implications may be far reaching, obliging governments to take seriously the responsibility for providing for inter-generational equity in environmental decision-making, particularly when considering proposed material greenhouse gas emissions. This and other global and local decisions are putting federal, state and territory governments and corporations on notice, as they are well placed to proactively mitigate climate risks.

OVERVIEW OF ACTION AND DECISION

Eight Australian children, in a representative proceeding on behalf of themselves and all children ‘who ordinarily reside in Australia’, applied to the Federal Court for a declaration that the Minister for the Environment owes them a duty of care under the law of negligence. This duty of care would encompass exercising her powers under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) so as not to cause harm to Australian children. The children, under the litigation guardianship of Sister Marie Brigid Arthur, also applied for an injunction to restrain the Minister from an apprehended breach of this asserted duty of care.

The application concerned the Minister’s decision under ss130(1) and 133 of the EPBC Act on an application in 2016 by Vickery Coal Pty Ltd (Vickery Coal), a wholly owned subsidiary of Whitehaven Coal Pty Ltd. Vickery Coal had applied to extend its existing approval under the EPBC Act for the Vickery Coal Project in northern NSW (Extension Application), on a site 25km north of Gunnedah. The Extension Application proposed to increase the total coal extraction from the mine site from 135 to 168 million tonnes (Mt), generating the equivalent of approximately 100Mt of carbon dioxide (CO₂).

Applicants’ claims of harm and causes of harm

The applicants asserted that the approval of this Extension Application for the mine and the consequent material increase of CO₂ from the extraction and combustion of the coal produced would expose them, and all children they represented, to harm. This harm would be caused by their likely increased exposure to climatic hazards induced by increasing global surface temperatures as a result of the further emissions of CO₂ into the Earth’s atmosphere. Climatic hazards included more intense cyclones, inland flooding, coastal flooding, bushfires and storm surges, as well as other extreme weather events at higher levels of intensity than previously. The applicants provided evidence demonstrating that the more CO₂ emitted ‘the worse the harm to today’s children’ will be in the future.

The applicants claimed that a breach of the Minister’s duty to children would cause them mental or physical harm and ill health or death, as well as economic and property loss. Given that the harm would occur in the future, mainly towards the end of this century, when global average surface temperatures are forecast to significantly and continually increase, the applicants and all Australian children, as distinct from all persons, would be most susceptible to this harm. The applicants claimed that they, and all Australian children, would therefore be vulnerable to a known, foreseeable risk of serious harm: if CO₂ concentration continues to increase, ‘[s]ome harm is very probable, serious harm is likely and cataclysmal harm is possible.’^[2]

Their claim rested on the tipping point that is possible once the global average temperature reaches or exceeds 2°C above pre-industrial levels (a ‘2°C Future World’): from this point there is an exponential increase in the risk of reaching a ‘4°C Future World’.^[3] Therefore, since a ‘2°C Future World’ is currently viewed as plausible, even a minimal increase in CO₂ would be seen as making a material contribution to the possibility of a ‘4°C Future World’ trajectory.

The applicants further claimed that the Minister has control over whether this foreseeable harm will occur, whereas children do not. They claimed that under tort law the Minister has a duty of care to Australian children, and therefore a responsibility to protect them from the serious threat of irreversible future harm. This is a novel duty that has not previously been established at law against the Minister under the EPBC Act.

The Minister’s position

While the Minister accepted that climate change presents serious threats and challenges to the environment, the Australian community and the world at large, the Minister did not accept that a correlating duty of care exists to the applicants and to all Australian children as represented by them. The Minister denied that the harm is reasonably foreseeable, and stated that, even if the duty of care did exist, there was no reasonable apprehension that the duty will be breached, and therefore there was no basis for granting injunctive relief. The Minister claimed that it was likely that the 100Mt of CO₂ would be emitted within the range of the emissions reductions committed to under the Paris Agreement^[4] and hence within a target lower than 2°C. However, the Minister called no evidence to support this position.

Vickery Coal joined only as a party to the application for an interlocutory injunction to restrain the Minister from exercising her power under ss130 and 133 of the EPBC Act, pending the hearing and determination of the proceeding.

Decision

After allowing time for further submissions, Bromberg J delivered a second decision, Sharma (No. 2),^[5] in which he declared:

‘The [Minister] has a duty to take reasonable care, in the exercise of her powers under s130 and s133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in respect of referral EPBC No. 2016/7649 [the Extension Application], 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.’^[6]

In considering whether to allow this novel duty of care to be recognised, the Court referenced Lord Macmillan in Donoghue v Stevenson,^[7] who found that:

‘[T]he conception of legal responsibility may develop in adaptation to altering social conditions and standards [and] [t]he criterion of judgment must adjust and adapt itself to the changing circumstances of life.’^[8]

The Court therefore recognised that the common law will respond to human errancy by imposing new legal responsibility, developed to adapt to the changing social circumstances and standards of the ‘reasonable person’.^[9]

The Court relied upon various principles of ecological sustainable development that were required to be applied by the Minister in making a decision under the EPBC Act.^[10] The Court referred to the precautionary principle, referenced in the EPBC Act at s3A(b), as providing 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.’^[11] The Court noted that ‘the foreseeability of the probability of harm from the defendant’s conduct may be small, but ... the foreseeable harm, should the risk of harm crystallise, is catastrophic.’^[12]

The Court further relied upon the principle of ‘inter-generational’ equity, defined as follows in the EPBC Act at s3A(c): ‘that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.’^[13]

The Court found that the Minister had ‘very substantial, if not exclusive, control over the real risk of harm to the Children that would flow from her approval of the Extension Project.’^[14] Further, it found that this control was ‘enhanced by her knowledge of the potential consequences of the conduct within her control.’^[15] These findings were therefore sufficient to establish a relationship and to impose a duty of care upon the Minister in relation to the applicant and all Australian children. The Court held that:

‘[B]y reference to contemporary social conditions and community standards, 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.’^[16]

The Court substantially accepted the applicants’ evidence, noting:

‘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.’^[17]

The Court did not uphold the application for an injunction: it was not sufficiently established that a breach of the duty had been reasonably apprehended, since the Minister had not yet made the decision, and the restraint might not be warranted.^[18]

On 8 July 2021, Bromberg J delivered a further judgment in Sharma (No. 2),^[19] declaring that the Minister owed a duty of care and awarding costs to the applicants.

Appeal

The Minister filed for appeal on 16 July 2021, with the hearing set down (at time of writing) for the period of 18 to 20 October 2021.^[20] The Minister is challenging the legal basis of the duty of care being established with respect to the Minister’s decision under the EPBC Act, along with the findings of fact regarding the likelihood of reaching 2°C warming, and the Project’s contribution to this. The outcome of the appeal will be published in the issue of Precedent that follows provision of the decision.

IMPLICATIONS

This is the first time a duty has been established at law in Australia as being held by a decision-maker under environmental or development law concerning the interests of children and their future wellbeing. Providing the decision is upheld on appeal, this decision could have ramifications for environmental decision-making across Australia. The declaration of this duty could result in its being extended not only to other greenhouse gas-intensive development applications under the EPBC Act, but also to those considered under state and territory law.

This decision is particularly interesting in that there is no specific requirement to consider greenhouse gas emissions or climate change impacts under the EPBC Act when assessing a proposed activity to which the Act applies, nor is the Act posited on protecting the interests of humans, let alone future generations of humans. The Court relied on the overarching statutory objects of the EPBC Act, particularly its references to the principles of ecologically sustainable development, which included the principle of inter-generational equity and the precautionary principle. These factors of His Honour’s reasons provide more grounds for the duty to be found in other environmental law frameworks, particularly since so few environmental law frameworks across Australia have specific criteria requiring the decision-maker to consider the impacts of greenhouse gas emissions in development assessments, particularly scope 3 emissions, as were considered here.^[21]

This decision also overcomes many of the hurdles that have been experienced in climate litigation in Australia to date, particularly in establishing the significance of a particular project’s proposed emissions as against total global emissions, and the significance of the project’s attribution to increased climate risk. The Court accepted the applicants’ evidence which demonstrated that even minimal emissions should be considered a material contribution that will threaten to trigger the tipping point from a 2°C to a 4°C ‘Future World’. This opens scope for all future proposed greenhouse gas emissions to be considered ‘material’, to the extent that they increase the likelihood of triggering this tipping point.

Shortly after Bromberg J’s decision was handed down, the NSW Land and Environment Court also found that a duty was held by the NSW Environment Protection Authority (EPA) to ensure the protection of the environment from climate change.^[22] This duty was found to exist under a requirement upon the Minister in the Protection of the Environment Administration Act 1991 (NSW), rather than under tort law. Chief Judge Brian Preston held that s9(1)(a) of this Act requires the EPA to create environmental quality objectives, guidelines and policies to ensure environmental protection from climate change, and that the EPA had failed to meet this duty. This decision was given in response to an application by a group of survivors of the 2018 bushfires that besieged the east coast of Australia, named the ‘Bushfire Survivors for Climate Action’.

While the decision of Bromberg J established the duty of care, the decision of Preston CJ goes further in requiring positive action by the EPA to address failings in meeting this duty. It is rare for environmental law frameworks in Australia to place a positive duty on the Minister or administering agency, as opposed to empowering a discretion to take an action, and so it may not be possible to rely on this NSW decision as easily in other jurisdictions. In contrast to the response of Minister for the Environment Sussan Ley, NSW Energy and Environment Minister Matt Kean has announced that the NSW Government will not be appealing the decision, but will rather set to work on meeting the Court orders.

These two decisions are part of a wave of recent Court decisions globally providing for the duty to address climate risk. On 26 May 2021, the District Court at The Hague ordered that Shell had an ‘unwritten standard of care’ under the Dutch Civil Code obliging it to contribute to the prevention of climate change through its corporate policy setting on emissions reduction.^[23] The Court ordered Shell to reduce its aggregate annual volume of all CO₂ emissions by at least 45 per cent on 2019 levels by 2030, for emissions from both its own operations and the use of the oil it produces. This was in response to a class action involving the Friends of the Earth association, other public interest organisations and over 17,000 Dutch citizens. The Court relied upon the reports of the Intergovernmental Panel on Climate Change, along with the targets of the Paris Agreement.

CONCLUSION

The recent International Energy Agency special report on the global action needed for achieving net zero carbon emissions by 2050,^[24] together with the outcomes of the UN Climate Change Conference in November 2021, may provide even further grounds for successful climate risk based legal actions in future, both in Australia and globally. Governments and corporate entities are now well-advised to take proactive measures to mitigate climate risk, given the potential of legal action against them in the future.

The author would like to thank all those who provided feedback on and research assistance with this article, including Dr Chris McGrath, Tayla Jansen, Taylah de Witt, Carolyn Farago, Sarah Shin and Elanor Fenge.

Revel Pointon is Managing Lawyer, Southern and Central Queensland, at the Environmental Defenders Office. EMAIL [e-mail].

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^[1] Sharma v Minister for the Environment [2021] FCA 560 (Sharma), [458].

^[2] Ibid, [12].

^[3] Ibid, [84].

^[4] Paris Agreement, opened for signature 12 December 2015, [2016] ATS 24 (entered into force 4 November 2016).

^[5] [2021] FCA 774 (Sharma No. 2).

^[6] Ibid, [58].

^[7] [1932] AC 562.

^[8] Ibid, [619].

^[9] Sharma, above note 1, [113].

^[10] EPBC Act, s3(1)(b).

^[11] Sharma, above note 1, [256].

^[12] Ibid, [257].

^[13] Ibid, [273].

^[14] Ibid, [284].

^[15] Ibid, [288].

^[16] Ibid, [491].

^[17] Ibid, [293].

^[18] Ibid, [510].

^[19] [2021] FCA 774.

^[20] Minister for the Environment (Commonwealth) v Anjali Sharma & Ors (By their litigation representative sister Marie Brigid Arthur) VID 389/2021.

^[21] Scope 3 emissions are emissions which occur as a consequence of the activities of a facility, but from sources not owned or controlled by that facility's business.

^[22] Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92.

^[23] Vereniging Milieudefensie et al. v Royal Dutch Shell PLC (26 May 2021) C/09/571932 / HA ZA 19–379 (Hague District Court).

^[24] International Energy Agency, Net Zero by 2050: A Roadmap for the Global Energy Sector (Report, 2021) <https://iea.blob.core.windows.net/assets/beceb956-0dcf-4d73-89fe-1310e3046d68/NetZeroby2050-ARoadmapfortheGlobalEnergySector_CORR.pdf>.