Sharma v Minister for the Environment [2021] FCA 560 - Green New Frontier or a False Dawn for Climate Activists?

Introduction

Following the success of climate activists in Urgenda v State of the Netherlands,^[1] and Friends of the Irish Environment v Government of Ireland,^[2] there has been a focus on litigation that would see public and private actors held to account for decisions that will disproportionately accelerate global warming. The recent case of Sharma v Minister for the Environment,^[3] saw the Federal Court of Australia similarly find in favour of  those seeking environmental accountability. In a landmark judgement, Bromberg J identified that the Minister for the Environment owed a duty of care to Australian children to avoid causing them physical harm when making decisions regarding the approval of a mining project demonstrated to have disastrous consequences for the climate crisis. 

This case note will first outline the facts and ratio decidendi of the judgement. It will then examine the nature and scope of the duty of care established by Bromberg J and question whether it will be of practical benefit to future litigants. The case note will next examine the principle of intergenerational equity and submit that the judgement represents an implicit acknowledgment of its potential to advance environmental justice. Finally the case note will criticise the failure to provide a sufficient remedy for the applicants though argue that this is not a reason in itself to detract from the case's potential. The focus of the case note as a whole will be on its potential use for future climate activists in line with advancements made in comparative jurisdictions. 

Facts and Ratio Decidendi 

The applicants in this case consisted of 8 Australian children, with proceedings brought by their adult representative Sister Marie Archer. They sought an injunction prohibiting coal company Vickery Coal Pty ltd from expanding their mining productions in a manner that would lead to an extra 100 Million Tonnes of carbon dioxide  being produced over the course of its operation.^[4] To achieve approval for this expansion, the company was required to apply to the Minister for the Environment under the Environment Protection and Biodiversity Conservation (EPBC) Act 1999. Sections 131(a) and 133 of this Act grant the Minister discretion to approve or reject the expansion of the mining program.^[5] The applicants submitted that, in considering the request of the company, the Minister owed a duty of care to Australian children to not cause them harm, through making decisions that would increase global heating and thereby impact on their physical, mental and economic well being in the near future. Further, they argued that an approval of the request of the mining company would be a breach of this duty of care. 

The Federal Court, in a judgement delivered by Bromberg J, established that a duty of care was owed to the children by the Minister. This duty obligates the Minister to take reasonable care to avoid causing physical harm to the children when making decisions under Sections 130 and 133 of the EPBC pertaining to the mining project. However Bromberg J refused to grant the injunction prohibiting the Minister from approving the project. He reasoned that to do so would limit the Minister's discretion to an unjustifiable level. 

The Nature and Scope of the Duty of Care

It is important to examine the process through which Bromberg J established a duty of care and the subsequent limitations that could impact on the judgement’s potential to assist future litigants. 

The Vulnerability Element - An Important Step for Intersectional Climate Justice 

Unlike other common law jurisdictions, Australia does not require that there be proximity between the applicant and respondent when considering whether there is a duty of care.^[6] Instead, a multi factorial approach is taken grounded largely in the foreseeability of harm being caused to the applicant.^[7] In this context, Bromberg J placed a great deal of emphasis on the ‘vulnerability’ of the applicants.^[8] In acknowledging a ‘special relationship’ between the government and the nation's children, the Court allowed for potential issues surrounding foreseeability to be overlooked in favour of a paternalistic approach.^[9] This is beneficial to future litigants in the sense that it relaxes causative standards where it can be shown that state inaction on climate change is having a negative impact on children.  

Further, there is potential for this vulnerability element to be expanded into arguments pertaining to marginalised groups as a whole. Bromberg J recognised that the ‘innocence’ of the children was also a relevant consideration due to the fact that they ‘bear no responsibility for the unparalleled predicament that they now face’.^[10] It could be argued that this lack of responsibility for capitalistic policies equally applies to communities socially and economically excluded by traditional business models. These communities tend to be historically disadvantaged and are consequently more likely to experience the adverse effects of climate change through no fault of their own.^[11] Their ‘innocence’ could be used to argue that policy makers should take higher consideration of their vulnerabilities in order to prevent further exacerbation of the effects of climate change. Thus, for example, Aboriginal communities who are disproportionately affected by pollutants due to racialised placement of industrial plants,^[12] could potentially utilise an innocence based argument to ground an expansion of the duty of care ruling in Sharma.

Proximity - The Achilles Heel for Comparative Approaches? 

A central problem for activists in other common law jurisdictions seeking to rely on this judgement is the relative absence of discussion and enthusiasm surrounding the relationship of proximity between the Minister and the children. Bromberg J accepted that there was no ‘physical or temporal nearness’ between the parties.^[13] He did recognise a ‘relational nearness’, yet stated that it ‘adds no additional support to the recognition of a duty of care’.^[14] This could be problematic in the sense that it makes clear the focus of the duty of care was on features that, while useful in other common law jurisdictions, would not be sufficient by themselves to establish the requisite proximity. Concurrently, the acknowledgement of proximity by virtue of the relationship between the Minister and the children could provide the basis for development in jurisdictions such as the UK, where proximity forms an essential component to a duty of care.^[15] This should however be approached with some caution and may require further evidence that was provided by the applicants, given ‘not much attention’ was paid to the area within their submission.^[16] 

Limitations on Mental and Economic Loss - The Contradictory Narrowing of the Climate Scale 

Similarly while the decision of Bromberg J certainly demonstrates innovation, this should be caveated by noting that he limited this duty to encompass physical harm only. Mental and economic harm were deemed insufficiently ‘coherent’ to justify the imposition of a broader duty of care.^[17]  On the face of it, this may appear logical. It is difficult to quantify the exact nature of mental and economic damage that would be caused by an expansion of an already existent coal mine. However, it is argued that this is inconsistent with the broader recognition of the harmful effects of climate change embedded within the jurisprudence of Bromberg J. For example, the Judge references a report by witness Dr Mallon that concludes that ‘that each of the Children, on average, is expected to lose between $41,000 and $85,000 of family wealth and, on average, (in today’s dollars) $170,000 in lost income as a result of extreme weather and higher temperatures induced by climate change’.^[18] Yet, when addressing the question of economic loss as a whole, he posits that this evident disadvantage should not ‘elevate’ the loss above that of adults.^[19] This contradicts the previous argument that the innocence of the children and their inability to enact legislative change accords a higher degree of consideration to the impact of environmental decision making. Thus, while Bromberg J is willing to ‘elevate consideration’ in cases of physical harm, he is unwilling to transpose this onto cases of mental and economic harm despite there being similar evidence of the damage caused to these factors by climate change. 

It is accepted that in the context of mental harm it would be difficult to quantify the effects of climate change, yet the narrow base from which Bromberg J approaches these dual issues of mental and economic harm undermines the relatively pragmatic attitude taken to linking climate change with the actions of the Minister.  It is undeniable that the recognition of a duty of care in regard to physical harm represents progress. However, Activists should be disappointed that such progress did not result in an expansion of the duty to other quantifiable losses that would place even greater pressure on the State to improve their climate action policies. 

Intergenerational Equity - Signs of a New Approach?

The judgement also illustrates potential due to its implicit recognition of inter-generational equity. Intergenerational equity is a concept referring to the idea that all humans have a responsibility to ensure the environment is protected and rendered sustainable in such a way as to ensure future generations are not at a disadvantage. This principle has been imbued into the jurisprudence of non-Western nations such as the Philippines,^[20] and has proven highly successful in allowing for sidestepping causative issues which can hamper liability for environmental damage.^[21] 

The EPBC itself has a clause referring to the importance of intergenerational equity,^[22] which is relied upon by Bromberg J when he states that the climate crisis ‘is to fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next’.^[23] By referencing this principle in determining the presence of a duty of care, Bromberg J creates a link future activists could exploit to ensure liability for state actors. This is due to the fact that, as inter-generational equity gains more prominence, so too does the capacity of litigants to argue that a causative link is present between what are otherwise remote parties. For example, a causative link between the inaction of a state body in ensuring a reduction in emissions could be created by arguing that the resulting harm will have an inequitable impact on the prospects of future generations. While not a central component of the judgement, the recognition of the principle is an exciting development in the area of tortious liability that may have unintended yet positive consequences for climate activists.

Remedy - Conservatism Strikes Again

The remedy, or rather lack thereof provided by Bromberg J is perhaps the most disappointing aspect of the judgement. The judge failed to grant an injunction that would have halted the expansion of the mining project and instead remits the decision regarding the continued expansion to the Minister's discretion.^[24] This discretion is subject to her consideration of the established duty of care and exercising of the appropriate procedural measures,^[25] however it is unclear as to how potential approval of the project could be challenged were such consideration to be demonstrated on appeal. 

From the perspective of a future litigant this does present some problems. A duty of care is certainly a useful mechanism through which to attempt to mitigate the worst excesses of climate recklessness, yet it is only effective if it can achieve practical application. This may however be possible were it to be combined with arguments present in other cases such as FIE v Government of Ireland,^[26] surrounding the need to accomplish certain emissions reductions within a statutory framework. This will likely be subject to an individual jurisdiction's setting of binding legislative targets, thus it is difficult to say with any certainty whether such arguments will be effective.  It is also important to note that, where this duty is not considered, there is no reason a more forceful remedy would not be provided by the Court subject to concerns surrounding the separation of powers. Thus, while damaging, the refusal of an injunction is not fatal to the overall progress advanced by the case.

Conclusion

In conclusion, Sharma v Minister for the Environment represents an important though imperfect development in climate activism. The recognition of a duty of care to not cause children harm when making environmental decisions has the potential to be both utilized and expanded in a manner conducive to achieving climate justice. This may require an expansion of proximity arguments in some common law jurisdictions yet that is not necessarily a barrier in light of the comments made by Bromberg J pertaining to relational closeness. The restriction of the duty of care to physical harm only is problematic, yet there remains the potential to use this duty in a manner that may allow for a more equitable approach to climate justice. The endorsement of intergenerational equity as a principle of judicial reference is promising and could allow for creative new approaches to the assigning of tortious liability.  Finally, while the failure to grant an injunction is perhaps overly cautious, a recent rise in Judicial activism in several jurisdictions, may allow for arguments that overcome this conservatism or at the very least force a greater consideration of the impact of climate change on vulnerable communities. Thus, Sharma should be regarded as an incremental step in climate activism that could provide a base through which liability can be equitably ascribed to those most responsible for the climate crisis.

^[1] [2015] HAZA C/09/00456689.

^[2] [2020] IESC 49.

^[3] [2021] FCA 560.

^[4] ibid.

^[5] Section 131(a) Environment Protection and Biodiversity Conservation Act 1999 and Section 133  Environment Protection and Biodiversity Conservation Act 1999.

^{[6] Kenneth A Warner, 'Proximity and the Duty of Care in Recent Applications of Negligence Law' (2002) 4 U Notre Dame Austl L Rev 145.}

^[7] Rahul Thyagarajan, 'Constructing a Negligence Case under Australian Law against Statutory Authorities in Relation to Climate Change Damages' (2014) 2014 CCLR 208.

^[8] Sharma v Minister for the Environment [2021] FCA 560 Bromberg J [ 289].

^[9] ibid  [311].

^[10] ibid [312].

^[11] Robert D Bullard, 'Environmental Racism and Invisible Communities' (1994) 96 W Va L Rev 1037.

^[12] Brad Jessup, 'Justice, Recognition and Environmental Law; The Weilangta Forest Conflict Tasmania, Australia' (2015) 34 U Tas L Rev 5.

^[13] Sharma v Minister for the Environment [2021] FCA 560 Bromberg J [315].

^[14] ibid.

^[15] Caparo Industries Plc v Dickman [1990] 2 AC 605.

^[16] Sharma v Minister for the Environment [2021] FCA 560 Bromberg J [315].

^[17] ibid [316].

^[18] ibid [292].

^[19] ibid [416].

^[20] Baldago, Promoting the Right to a Balanced and Healthful Ecology: Environmental Justice in the Philippines’  (2012) Background Paper to the UNDP Workshop on Legal Empowerment and the Environment.

^[21] United Nations Development Program, ‘Environmental Justice, Comparative Experiences in Legal Empowerment’ (2014).

^[22] Section 3(A)(C) Environment Protection and Biodiversity Conservation Act 1999.

^[23] Sharma v Minister for the Environment [2021] FCA 560 Bromberg J [292].

^[24] ibid [492].

^[25] ibid.

^[26] [2020] IESC 49.