Australian Federal Court sees enormous climate risk but says it cannot act

In late 2020, a group of eight brave children led by Anj Sharma commenced proceedings in the Federal Court of Australia against Australia’s Federal Environment Minister. The proceedings aimed to protect young people from the future harm caused by the climate change impacts of a proposed coal mine extension project in eastern Australia known as the Vickery Extension Project.

It was a courageous and ambitious case that leapt out of the normal constraints for challenging government decisions in Australia and other common law countries. 

The children argued that in deciding whether to approve the coal mine expansion under Australia’s main national environmental law, 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 approving the expansion before a decision was made. 

Had they succeeded, it would have been a significant legal, moral and public relations victory. However, because the Minister’s decision is normally immune to challenges on its merits – it would still have been possible for the Minister to approve large fossil fuel projects. 

The Minister denied any duty of care was owed to the children or that the project would cause the harm alleged. This reflected the Australian Government’s ongoing denial that mining and exporting vast amounts of coal and gas does not impact climate change because if the coal and gas did not come from Australia, it would come from some other country. This “Drug Dealers Defence” has infected government and court decision-making on coal and gas for over a decade in Australia. 

In 2021, the trial judge, Justice Bromberg, 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].”

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 was 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.

Decision Overturned on Appeal

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

On 15 March 2022, the Full Federal Court of Australia allowed the appeal.

While the three judges of the Full Federal Court dismissed the Minister’s challenge to Bromberg J’s factual findings about climate change (and complimented his Honour on the “detailed and careful” judgement), his construction of the EPBC Act and other aspects of his decision were a leap too far for them.

All three judges of the Full Court agreed (for different reasons) that a duty of care should not be imposed on the Minister.

While success in the appeal would have boosted Australia’s legal framework on climate change and built momentum for better government policy to respond to the climate crisis, the decision still provides an enormous amount of useful analysis by the Full Court for future successful climate litigation in tort. It certainly is not a washout for future climate cases. There is a lot there to build on. 

A pertinent example of who can learn from this case is insurers seeking to recover billions of dollars of damages caused by bushfires, floods and sea level rise through class actions against major Australian climate polluters, such as AGL Energy for negligence or other causes of action. They now have a ready checklist of issues to address in framing their litigation.

High Court Appeal

As they lost before the Full Federal Court, the children could have applied for special leave to appeal to Australia’s highest appellate court, the High Court of Australia. However, on 12 April 2022 they announced they would not seek special leave to appeal. In effect, this ended the litigation.

This Remains a Ground-Breaking Case

While the importance of this case would have been enormously amplified if it had led to a landmark decision by the High Court and even though Bromberg J’s decision did not survive on appeal, it remains an amazing and ground-breaking decision that will reverberate for many years.

Australia’s leading scholar on climate litigation, Professor Jacqueline Peel, wrote that the appeal decision “undoes 20 years of climate litigation progress” in Australia but, while I respect Professor Peel immensely and value her research, I disagree with that conclusion. While Australia has seen some recent remarkable wins in climate litigation, such as the refusal of a coal mine in 2019 in part due to its contribution to climate change, most cases have been lost and Australia remains one of the largest coal and gas exporters in the world. The rate of any “progress” from Australian climate litigation is far too slow, and hence courageous and ambitious cases such as the Sharma litigation are needed.  The loss in this case has not shut the door to future claims in other areas and there is a lot that can be learned from it for future climate litigation. It does not undo progress.

The successful appeal at the Full Federal Court does not change the factual findings made by the primary judge (Bromberg J) that the horrific future the world faces due to climate change reflects mainstream science. For instance, Chief Justice Allsop began his judgment (at [1]-[2]) by noting the facts of climate change were not in dispute and were largely admitted by the Minister:

The threat of climate change and global warming was and is not in dispute between the parties in this litigation. [The evidence led at trial by the applicants about climate change was not challenged by the Minister. Subject to limited challenges in the appeal by the Minister to some of the primary judge’s findings], by and large, the nature of the risks and the dangers from global warning, including the possible catastrophe that may engulf the world and humanity was not in dispute.

This reality is likely to drive a tidal wave of climate litigation in the future. Coal companies and other fossil fuel producers are, like asbestos manufacturers in the 1980s, facing a tsunami of litigation. This tsunami will grow as insurance companies commence class actions to recover damages for the billions of dollars lost in bushfires, floods and sea level rise.

This case is one of hundreds of climate change cases being brought around the world where courts are being called upon to find remedies for the harm suffered by billions of people. The courage and ambition will inspire others to continue to press for proper remedies for the incalculable harm that is being suffered. 

Another Big Crack in the Wall Defending Climate Polluters

While this ambitious litigation was unsuccessful, it has created another big crack in the wall defending climate polluters. These cracks are appearing in the context where liability for climate change is widespread but largely unrealised. This context flows logically from the facts that:

• billions of people and trillions of dollars of property are being and will be impacted by climate change;
• common law causes of action and modern environmental laws are wide on their face and apply to activities that cause climate change in the same way as other forms of pollution;
• a core function of the courts is to provide remedies for people who suffer damage due to the actions of others; and
• despite, on its face, widespread liability, only relatively few cases have been brought globally (somewhere in the order of 1,000), which means that liability is largely unrealised.

In relation to the second of these points, if the common law and modern environmental laws do not address climate change – a well-known, major threat facing human society and the environment, which will cause huge property losses – there is something seriously wrong with them. It would be wrong to assume this is the case or to assume that judges, faced with clear evidence of harm, will not use (in the words of five judges of the Australian High Court) the “creative element of both inductive and deductive reasoning in the work of the courts” to fashion appropriate remedies. To the contrary, the opposite is a logical conclusion: widely framed modern environmental laws address climate change impacts, just as they regulate other forms of pollution, and judges will strive to find remedies for clear harm. Yet this liability is largely unrealised so far, as countless human activities across the globe continue to contribute to climate change without attracting legal sanction.

Decisions like those of the trial judge, Bromberg J, in the Sharma case and the Dutch courts in the famous Urgenda case, will continue as judges strive to find remedies for climate harm in the face of overwhelming evidence. The decision in Sharma is a signpost to this, not a roadblock to it. 

The big, unanswered question is when these growing cracks will cause the wall defending climate polluters to burst. 

In the spirit of the Pledge, we will from now on ask all blog authors the same question aimed at identifying the exact points where their field of law could contribute to fighting climate change:

Dr Chris McGrath is an Australian lawyer and climate litigator. His website provides case studies of the climate cases he has acted in. He did not act as a lawyer in the Sharma case discussed in this article but his website provides a case study of it. His publications include, “Survival strategies for climate litigators.”