Court Finds Australian Government has a Legal Duty to Avoid Climate Harm

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“The physical environment will be harsher, far more extreme and devastatingly brutal when angry. [Our] quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper… will be greatly diminished… None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults… [This may be] the greatest inter-generational injustice ever.” – Justice Bromberg in Sharma v Minister for the Environment (2021) (’Sharma’).

It is surprising to hear such an emotive statement from the normally stoic and reserved voice of a Judge in the Federal Court of Australia. Justice Bromberg’s harrowing articulation of the climate crisis evinces emotions of immense anger, frustration, and sadness.

However, the decision handed down by Justice Bromberg should inspire a sense of optimism, not outrage. Sharma is a landmark decision that found the Australian Government owes a duty of care to the young people of Australia to prevent climate change related harm. This article discusses Sharma and its significance in the transition to net zero.

 

Anj Sharm (16), Sister Brigid Arthur (86) - plaintiffs in Sharma v Minister for the Environment (2021)

 

Anj Sharm (16), Sister Brigid Arthur (86) – plaintiffs in Sharma v Minister for the Environment (2021)

Sharma v Minister for the Environment (2021)

In September 2020, eight school children with the assistance of 86-year-old Sister Marie Brigid Arthur brought a class action lawsuit against the Australian Federal Minister for Environment on behalf of all young people. The case concerned the approval of a coal mine extension known as the Vickery Extension Project.

If approved, the Vickery Extension Project would cause an increase in emissions by 100 mega-tonnes over the next 25 years. The students alleged that the Minister had a duty to avoid causing future harm arising from the approval of the Vickery Extension Project and the emissions it would create.

 “Duty to avoid causing injury or death”

Although the Court refused to make an injunction to prevent the Minister from approving the Vickery extension project, Justice Bromberg held that the Minister has a “duty to avoid causing injury or death” to all Australians under eighteen “arising from emissions of carbon dioxide into the earth’s atmosphere”.

This means that the Minister has a legal obligation to avoid exercising her Ministerial powers in a manner that could cause reasonably foreseeable harm to young people. If the Minister behaves contrary to this duty, an affected person, or group of persons, could seek an injunction from the Court to prevent this conduct. An injunction is an order from the court prohibiting a party from taking a certain action.

This is a massive breakthrough for Australian and global climate litigation because Sharma was the first case in which a common law court acknowledged that the government owes a duty of care to avoid climate change related harm. Sharma established an important precedent that will allow citizens and the courts to hold Ministers accountable for using their powers in a manner that contributes to climate change.

What does the future hold?

We won’t have to wait long to find out if the Sharma decision will be effective. In a move denounced as a “betrayal of young people”, the Minister has approved the Vickery Extension Project despite the outcome in Sharma. Equity Generation Lawyers, who represented the students in Sharma, have said that the legal team is considering taking further court action. The Minister has also filed an appeal in the High Court to challenge Justice Bromberg’s decision.

Sources:

Sharma & Others v Minister for the Environment [2021] FCA 560.

Sharma & Others v Minister for the Environment (No 2) [2021] FCA 774.

Notice Of Appeal From Court Or Judge (climatecasechart.com)

vickery-extension-project–media-release.pdf (nsw.gov.au)

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