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Major landmark decision a ‘victory’ for young climate change activists
In a global first, the Federal Court of Australia has ordered that the government must consider the foreseeable future harms of climate change on children specifically, particularly the “catastrophic” damage that could be done if projects that contribute to an increase in the earth’s temperature are permitted to proceed.
Naomi Neilson
Eight Australian high school students have successfully demonstrated the extent of harm that could be inflicted on Australian children if projects like the Vickery coal mine extension move forward, prompting the Federal Court to order the government consider duty of care prior to exercising powers under an environmental protection act.
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The students alleged that Environment Minister Sussan Ley’s decision to approve a major extension to the northern NSW mine would breach her duty. While an injunction has been ordered, there will be further submissions on what the duty means for Ms Ley’s potential verdict and the extension of the mine itself.
“I am thrilled by the judgement,” said student Ava Princi. “I’m thrilled because this is a global first. We understand it is the first time a court of law, anywhere in the world, has ordered a government to specifically protect young people from the catastrophic harms of climate change. My future – and the future of all young people – depends on Australia joining the world in taking decisive climate action.”
Under the Environment Protection and Biodiversity Conservation (EPBC) Act, Ms Ley has the power to approve the extension under section 130 and 133. If she does, it is expected that over 25 years’ life of the project and an additional 33 million tonnes of coal will be extracted from the mine, which may in turn cause a further 100 million tonnes of carbon dioxide to be emitted and burned in the Earth’s atmosphere.
The Federal Court’s Justice Mordecai Bromberg noted that Ms Ley accepted that the earth’s temperature is increasing, largely from humans since the industrial revolution. She also accepted it could lead to more drought, sea level rises and extremes of heat, rainfall and fire-related weather, and also agreed that potential temperature increases exacerbate inherent risks while introducing new risks.
Justice Bromberg said the students presented unchallenged specific evidence on the future trajectory of global average surface temperatures, including that the Paris Agreement target of limiting global average to well below 2 degrees Celsius is now unlikely to be achieved without significant overshoot and that the best-stabilised avenue surface temperature that can be realistically contemplated today is 2 degrees Celsius above pre-industrial.
He said that the 100 million tonnes of carbon dioxide from the extension project “is likely to cause a tiny but measurable increase to global average surface temperatures” and, in doing so, would increase the global average surface temperature beyond 2 degrees Celsius, which could cause the temperature to propel “into an irreversible 4’C trajectory”.
The nature and extent of the harm to Australia’s children “may fairly be described as catastrophic”, with the most “startling” of the potential harms from evidence that has suggested 1 million of today’s young people are expected to suffer from at least one heat-stress episode serious enough to require acute care in a hospital.
“Many thousands will suffer premature death from heat-stress or bushfire smoke. Substantial economic loss and property damage will be experienced. The Great Barrier Reef and most of Australia’s eastern eucalypt forests will no longer exist due to repeated, severe bushfires,” Justice Bromberg commented in summary.
“The evidence demonstrates a reasonable person in position of the minister would foresee that, by reason of the extension project’s effect on increased CO2 in the Earth’s atmosphere and the consequential increase in global surface temperatures, each of the children is exposed to a risk of death or other personal injury.”
Having weighed these considerations, Mr Bromberg said the court was satisfied that a duty of care should be recognised. While the court stopped short of preventing the minister from approving the Vickery mine extension, it has ordered that the parties come together to “find a way forward” to ensure climate change damage is restricted.
“I feel elated by this decision,” said student Laura Kirwan. “This is a victory for young people everywhere. The case was about young people stepping up and demanding more from the adults whose actions are determining our future wellbeing.
“Our voices are powerful, and I hope this case inspires more young people to push for stronger, faster and deeper cuts to carbon emissions. Our future depends on it.”
The entire judgement is available on AustLII: Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021).
