Sharma v. Minister for the Environment  FCA 560 (May 27, 2021)
Federal Court of Australia
a duty to act with reasonable care so as not to cause them harm. This duty was said to arise through the law of negligence. Id.
I. RISK OF HARM
The Court began its analysis by determining whether approval of the extension application for the Vickery Coal Project posed a risk of future injury to each of the children. Id. at para. 29. The Court answered this question affirmatively, relying on unchallenged expert evidence provided by the applicants, in particular the work of Professor Will Steffen.
Professor Steffen described possible climate futures derived from the representative concentration pathways outlined by the Intergovernmental Panel on Climate Change (IPCC). Id. at para. 59. Under even the most optimistic scenario (“2°C Future World”), Australia would experience a significantly increased likelihood of severe heatwaves, power blackouts, bushfires, drought, and decreased crop yields. Id. at para 67. As global average surface temperatures exceed 2°C, even by a fraction, there is a growing risk that the Earth’s natural systems will trigger a tipping cascade that propels the Earth towards a 4°C or more increase in surface temperature. Under this latter scenario (“4°C Future World”), Professor Steffen projects that, among other things, much of Australia’s inland areas will become uninhabitable for humans, many broad-leafed forests and the Great Barrier Reef will no longer exist, and coastal cities will suffer increased inundation and flooding from sea level rise and storm surges. Id. at para. 69.
After reviewing the climate science, the Court concluded that the applicants’ evidence
demonstrates that the risk of harm to the Children from climatic hazards brought about by increased global average surface temperatures, is on a continuum in which both the degree of risk and magnitude of potential harm will increase exponentially if the Earth moves beyond a global average surface temperature of 2°C to 3°C and then to 4°C above the pre-industrial level.
Id. at para. 75. The Court made note of Professor Steffan’s opinion that there is a strong chance of achieving a 2°C future if currently operating coal mines are phased out as soon as possible (preferably no later than 2030) and that “no new coal mines, or extensions to existing coal mines, can be allowed.” Id. at para. 73.
The Court then specifically considered whether approval of the Vickery Coal Project, which is projected to emit 100 Mt of CO2, would increase the children’s risk of experiencing climatic-related harms. The Minister tried to convince the Court that emissions associated with the coal-mining project would cause only a negligible increase in global temperature. Id. at paras. 81-82. The Court rejected this argument, explaining that it is accumulated CO2 that will bring about increased global temperatures and associated harms. Id. at para. 83. The Minister also argued, with no supporting evidence, that the emissions would fall within the available carbon budget necessary to meet a 2°C target, in compliance with the Paris Agreement. The Court characterized this argument as “speculation” and pointed to a study calculating that over 90% of Australia’s coal reserves cannot be burnt if the 2°C target is to be met, concluding: “If there is no capacity to include 90% of existing Australian reserves of coal in the carbon budget, it seems unlikely that a capacity for new reserves to be included exists.” Id. at para. 87.
II. THE DUTY OF CARE
After addressing the risk of harm, the Court next determined whether the Minister owes a duty to the children to exercise her authority under provisions of the Environment Protection and Biodiversity Conservation Act 1999 Act (EPBC Act) with reasonable care to avoid harm or injury. In ascertaining whether there is a novel duty of care, the Court referred to a list of salient features laid out in previous decisions that provide guidance on the appropriateness of establishing such a duty. Id. at paras. 96-98. Because the applicants’ case sought to impose a duty on a statutory authority, the Court clarified that certain salient features would be elevated in importance. Id. at paras. 105, 109.
The Court acknowledged the adaptability of common law to respond to changing conditions, observing:
The recognition of a novel duty of care represents a development in the law. As the common law develops in this manner, new legal rights are conferred on some persons and corresponding legal obligations are imposed on others.
* * *
In this case, the law is being asked to respond to altering social conditions brought about by human interference to the natural environment. The deterioration of social conditions brought about by the degradation of the habitat or the environment in which people live and on which they rely has been a constant impetus for the development of the common law.
Id. at paras. 116-117.
Proceeding through the salient features, the Court concluded “the relations between the Minister and the Children answer the criterion for intervention by the law of negligence.” Id. at para. 490. Emphasizing the role of reasonable foreseeability in the analysis, the Court declared:
[A] reasonable person in the Minister’s position would foresee that, by reason of the effect of increased CO2 in the Earth’s atmosphere and the consequential increase in global average surface temperature, each of the Children is exposed, through the occurrence of heatwaves or bushfires, to the risk of death or personal injury.
Id. at para. 247. Bringing the Vickery Coal Project into the equation, the Court found it “obvious and foreseeable” that combustion of coal from the project will contribute to an increase in atmospheric CO2. Id. at para. 248. Moreover, there is a direct relation between the exercise of the Minister’s authority under the EPBC Act and the risk of harm to the children. Id. at para. 271. The Court found that the applicants 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, whether or not to approve the extension of the Vickery Coal Project. Id. at para. 491.
III. QUIA TIMET INJUNCTION
The applicants asked the Court to issue a quia timet injuction to restrain the Minister from exercising power under the EPBC Act in a manner that would permit the extraction of coal under the proposed extension plan. Id. at paras. 492-493. The Court noted that this relief would, in effect, require the Minister to reject the application for the extension project. Id. at para. 494.
The Court declined to issue the injunction on the ground that it did not want to foreclose the Minister’s discretion to issue a “nuanced response” to the mining proposal that fulfills the duty of care. Id. at paras. 501-502, 513.
IV. FURTHER STEPS
The Court issued a declaration that the Minister has a duty to take reasonable care, in the exercise of her powers under the EPBC Act in respect of the Extension Project, to avoid causing personal injury or death to the children arising from emissions of carbon dioxide into the Earth’s atmosphere. Id. at para. 513. The Court confined the scope of its binding orders to the youth applicants and not the broader class of represented youth. Id. at para. 517. The Court solicited additional submissions from the parties as to whether it should issue a broader order that would extend to the children who are represented by the applicants. Id. at paras. 515-516. (See summary immediately below.)
Sharma v. Minister for the Environment (No. 2)  FCA 774 (July 8, 2021)
In subsequent proceedings, the Federal Court of Australia modifed its binding order, declaring that the Minister for the Environment “has a duty to take reasonable care, in the exercise of her powers under s 130 and s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in respect of referral EPBC No. 2016/7649, 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.”  FCA 774, para. 1.
The Court discontinued the representative proceeding in respect of persons who were under 18 years of age and not ordinarily resident in Australia at the time of the commencement of the proceeding, and directed the Minister to pay the applicant’s costs of the proceeding. Id. at paras. 2-3.