In a landmark decision emerging from the Sharma v Minister Federal Court case, Justice Mordecai Bromberg has ruled the federal environment minister must take reasonable care to protect children living in Australia from personal injury or harm resulting from the future impacts of carbon dioxide emissions released in the present day.

Among the findings presented in the decision was that for any hope of a safe climate, existing coal mining must be phased out in Australia by 2030, with no new mines developed.

“It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children,” Justice Bromberg said in his decision.

“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.”

To help make sense of the Sharma v Minister decision, we caught up with Australian Conservation Foundation senior counsel Adam Beeson to understand what the ruling means:

What exactly does the Sharma v Minister ruling mean?

This ruling means the Minister for the Environment has a duty to take reasonable care to avoid causing personal injury to Australian children when deciding, under the Environmental Protection and Biodiversity [EPBC] Act, to approve or not approve the extension to Whitehaven’s Vickery Coal Mine.

It follows this duty exists in relation to any heavy emitting activity the Minister must decide upon.

So, that means that the Sharma v Minister decision applies to activities beyond just the Whitehaven’s Vickery Coal Mine as well?

Yes. The finding that a duty of care is owed by the Minister in this context means climate change impacts of projects become directly relevant to EPBC decision-making. 

That is particularly true for heavy emitting activities. 

This is significant given the Commonwealth have consistently approved heavy emitting activities without detailed consideration of climate impacts.

It is also significant in relation to the findings of fact made by the judge about climate change and the dangers of it.  None of this was challenged by the Commonwealth. 

"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.”

Given all of this, what responsibilities does the environment minister now have?

The Minister will have to consider the harm caused by climate change when making decisions under the EPBC Act. 

Do penalties exist if the federal environment minister fails to consider the future impacts of climate change on children?

If the Minister breaches her duty, she (i.e. the Commonwealth government) could be liable for the losses suffered by the children. 

If the Minister makes a decision – or foreshadows making a decision – in breach of the duty, an injunction could be sought to prevent that decision being made and or acted upon.

The court agreed with a significant scientific knowledge about climate change, such as “that over 90% of Australia's existing coal reserves cannot be burnt to be consistent with a 2° temperature target.” How important is it that the Commonwealth chose not to contest the information presented?

It’s hugely significant that neither the Commonwealth government nor Whitehaven contested the scientific information the children presented.  A climate scientist, an actuary (a person who specialises in calculating risk) and a public health expert gave evidence about the dangers of a heating world.  The Court findings are important for future climate litigation and for decision-makers dealing with emissions intensive activities.

 

On 9 July 2021, the Federal Environment Minister Sussan Ley confirmed the Morrison Government would exercise its right to appeal Justice Bromberg's decision.

Matthew Agius

Australian Conservation Foundation