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Climate Change Historic Moment: Responsibility owed to the next generation formally recognised by Federal Court Judge

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It’s time for Australian political parties to pay attention and step up on the global stage to acknowledge the impact of climate change. Attwood Marshall Lawyers Legal Practice Director, Jeff Garrett, discusses the recent Federal Court judgement that opens the door to future litigation for climate change consequences.

Introduction

This month saw protests in the name of climate action after the Federal Budget was delivered in May, 2021, which announced more than $58 million being invested in expanding the gas industry, and $600 million of taxpayer money being directed to building the Kurri Kurri gas-fired power station in New South Wales. There was also financial support provided to two oil refineries at Geelong and Lytton which is estimated to cost two billion dollars over the next decade to provide secure supplies of petrol, diesel, and jet fuel at a time when the electric car industry has not been allocated any funding or support.

The “Australian School Strike 4 Climate” protests took place across more than 50 cities and towns in Australia. Thousands of students have voiced their concern about the Federal Government’s ongoing financial support for the gas industry and the impact this will have on their future wellbeing.

The reality of climate change and impact on children

The future is grim for children in Australia if climate change is not taken seriously. What was once considered a “speculative future problem”, has now been recognised as reasonably foreseeable. In any legal argument to establish a duty of care to a person or class of people, you must establish that the damage or loss suffered is reasonably foreseeable by the person or entity that you are suing.

There’s no doubt that Australia’s climate is changing and it has warmed by 1.4° since 1910.

As a result, Australia already experiences, and expects to continue to see:

  • More frequent hot weather
  • Fewer cold days
  • Shifting rainfall patterns
  • Rising sea levels
  • Oceans becoming more acidic
  • Declining snow depths
  • Longer fire seasons for southern and eastern Australia

It is expected that one million of today’s Australian children will be hospitalized because of a heat-stress episode.

Australian children also won’t know the beauty of the Great Barrier Reef and Australia’s eucalypt forests, as they won’t exist once today’s children hit adulthood.

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.” said the Hon. Justice Mordecai Bromberg of the Federal Court of Australia in its live-stream summary of the class action against Federal Environment Minister Sussan Ley.

“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.”

“To say that the children are vulnerable is to understate their predicament.”

Whitehaven Coalmine Vickery Extension Project: Government Negligence

The Vickery Extension Project is a proposed project intending to construct an open-cut coal mine and associated on-site infrastructure about 25 kilometres north of Gunnedah, in New South Wales.

The mine will produce a majority metallurgical coal for steelmaking, with the balance being high quality thermal coal intended for electricity generation.

The mine was originally approved in 2014 for the extraction of 130 million tonnes of coal over 30 years.

This extension proposal is an addition to the already approved mine. In August 2020, the Vickery Extension Project was approved by the Independent Planning Commission NSW.

The approved extension project will allow for 10 million tonnes of coal to be extracted annually, an increase of 250% on the original proposal. The additional coal extracted from the mine’s expansion would produce approximately 100 million tonnes of carbon dioxide.

Key issues such as greenhouse gas emissions, the effects on agricultural land, water, wildlife and heritage, socioeconomic impacts, and air and noise quality have seen many Australians protesting the expansion project.

The Independent Planning Commission NSW has stated that the expansion project did not impose a significantly greater environmental impact than what had already been approved for the original project, therefore finding the expansion project was acceptable to go ahead.

Establishing a duty of care to the next generation

A duty of care means a responsibility not to take actions (including doing or not doing something) that could harm others.

This case required the Court to consider a novel duty of care within the law of negligence.

Despite the fact that the Court dismissed the application to stop Federal Environment Minister Sussan Ley from approving the Vickery Extension Project, the Court found a new duty that it has never found before, establishing that the environment minister owes a duty of care to Australia’s children and teenagers, and must not cause them physical harm in the form of personal injury from climate change.

In deciding that the Minister did owe a duty of care, His Honour considered various features:

  • This was a case where the foreseeability of the probability of harm from the defendant’s harm may be small, but should the risk of harm crystallize, the harm would be catastrophic
  • The Minister has direct control over the foreseeable risk
  • The Minister has all of the knowledge about the risk of harm to children which the substantial evidence in the case provided
  • The Minister has responsibility for the environment and the interests of Australians and must ensure a healthy environment for the benefit of future generations.

The Federal Court’s ruling in the Whitehaven Coalmine Vickery Extension Project is hugely significant. It sets a precedent that decisions made by Australia’s Environment Ministers could amount to negligent conduct. This also opens the door for future litigation by affected people or organisations to hold the governments to account.

The Netherlands established a precedent first

In 2015, the Netherlands set a world-first and ruled that the Dutch Government had obligations to urgently and significantly reduce emissions in line with its human rights obligations. The District Court of The Hague ruled the government must cut its greenhouse gas emissions by at least 25% by the end of 2020.

The District Court’s decision was appealed by the State and upheld by the Court of Appeal in 2018. Following this judgment, the State appealed to the Supreme Court, and the Supreme Court ruled in favour of Urgenda in 2019.

The international significance of this case shows that governments have a binding legal obligation, based on international human rights law, to undertake strong reductions in greenhouse gas emissions.

It was the Netherland’s people, 886 citizens to be exact, that made climate change a major political and social issue and transformed domestic climate change policy.

Further to the Supreme Court’s ruling, the Netherlands continues to hold everyone accountable, with another significant climate change judgment being handed down to Royal Dutch Shell, a global oil and gas company, to reduce its carbon dioxide emissions by 45% by 2030.

This means that not only can governments be held accountable for projects they approve, but so can fossil fuel companies for their proposed projects.

What now for Australia on the climate change front?

The decision by the Australian Federal Court will no doubt be revisited by Appellant Courts and the duty of care challenged by the Federal Government and the fossil fuel industry, in all probability.  It will be interesting to see whether the Federal government and/or the fossil fuel industry large corporations will risk testing the finding by the Federal Court.  They may well find that this duty of care is upheld by the Full Court of the Federal Court and the highest Court in our country being the High Court of Australia.

As with all issues concerning Australia’s action or inaction in relation to tackling the climate change problem, politics will play a huge part in how this plays out in the future.  At present we have a coalition Federal government that has been divided within its own ranks about what should be done to cut emissions and acknowledge the part that climate change is playing in our country.  Arguably, the issue of climate change has resulted in the change of several Prime Ministers in Australia and the political parties seem to hold entrenched differing views in relation to this emotive subject.

The opposing views in relation to this matter are often based on ideological beliefs rather than properly considering the science.  Many experts and commentators have noted the Federal government’s conflicting attitude when considering the COVID-19 outbreak and accepting the science/medical advice as compared with the issue of climate change where it seems that the science and the expert opinion has been conveniently ignored or conveniently distinguished to appease the conservative side of business and politics.  The media has also played an important part in relation to these ideological issues and the News Limited media empire is particularly one-sided in relation to its reporting of these issues.

It may well be that the inertia of the Federal coalition government will be circumvented by the actions of the State and Territory governments, who seem to be proceeding along the lines of an emission reductions path that is consistent with scientific and international opinion.  However, the most glaring omission in the case of Australia as a country is the absence of a National policy or strategy that can unite the States and the Australian people to become an international leader in this area. The Federal government should be pressing for a significant reduction in emissions and fearlessly tackle the issue of climate change.  Our recent history of unprecedented drought, bushfires, cyclones, and extensive flooding (not to mention the significant increase in temperatures and heatwaves) are all indicators that the current lack of action is not working.

We cannot underestimate the role of lawyers and private citizens or corporations in relation to obtaining significant change through our Federal politicians.  The Courts have historically been a great vehicle for policy change through its decisions.  One need only look at the High Court decisions of the Great Barrier Reef and the Franklin Dam in Tasmania to see the operation of our High Court in determining legal issues that force change upon our Federal government.  The danger is that the Federal government can introduce legislation to circumvent Court decisions.  However, at some point these issues will become extremely unpopular with the Australian voters and the issue of self-preservation is a powerful incentive for most politicians.

Conclusion

It is now open for environmental lawyers and climate change activist groups to bring about significant policy changes in this area through Court action.

It remains to be seen how far the duty of care owed to Australian citizens by the Federal government will be taken by our Courts.  However, this latest Federal Court decision is a significant step in the direction of holding politicians and governments accountable for their actions at all levels.  It may well be the catalyst that drives the final change required with our current Federal government and no doubt will be a significant election issue in the forthcoming Federal poll.

How can Attwood Marshall Lawyers help you?

Attwood Marshall Lawyers has a dedicated commercial litigation team who are experienced in environmental law and climate action.  We have a strong social conscience in relation to these areas and can help individuals and organisations who are affected by government decisions.  Please contact our Department Manager Amanda Heather on direct line 07 5506 8245 or email aheather@attwoodmarshall.com.au for a free initial consultation.

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