Young Australians sued their government over the license to expand a mine, saying it has a duty to care for children who can suffer ‘catastrophic harm’ from the climate impacts of coal. This has not stopped the mine, but gave the new generation a fresh legal empowerment to care for the climate.
In September 2020, Anjali Sharma, an Australian school student and seven other young individuals in the name of all Australians under 18, sued the Australian Minister of Environmental Affairs, Ms. Sussan Ley, over the license for the extension of a large coal mine. The mine had received development consent in 2014 and was in a licensing procedure to substantially increase the amount and rate of coal extraction permitted over the life of the mine.
The petitioners argued that the Minister had a legal duty to care for children and youth, which the mine extension’s approval would violate. The evidence offered by expert witnesses showed that extracting and burning coal from this mine would emit large amounts of greenhouse gases into the atmosphere. These gases will intensify climate change and could lead to ‘tipping points’ in the climate system, thus harming the young petitioners in the future.
This group of young people asked the judges to (1) declare that the Ministry of Environment has a duty to care for children and that this duty should play as a critical consideration when deciding over the license in question, and (2) stop the Australian Government from approving an extension of the Whitehaven Vickery coal mine, as it violated the duty of care towards children. This case became one of the most renowned climate litigations last year.
A varied phenomenon
Climate change litigation is varied and abundant worldwide. Legal adaptations to tackle the climate crisis are continuously created. Sometimes petitioners sue the fossil fuel industry for damages caused by climate events, arguing that they are responsible, they know that they are, and haven’t done enough to prevent more climate harm.
Other times they sue governments over their regulatory function, hoping for new systemic regulations, such as curbing carbon emissions, controlling deforestation, creating incentives for the renewables’ sector, or facilitating and financing adaptation to the effects of climate change.
And other times, like in the Sharma case, they sue governments to challenge the approval processes for new carbon-intensive projects, like mines or oil and gas extraction sites.
The ruling proved that their climate anxiety was not a dysfunctional manifestation of adolescent rebellion but rather is a healthy response to scientifically and legally sound evidence that should make us all worry – and move us into action.
Three categories of witnesses brought evidence to argue this case:
First of all, the judges listened to students telling their experiences, anxieties, and concerns over climate change in a country with little climate policy; to the contrary, Australia has eliminated its emissions trading scheme and carbon taxes, and increasingly supports the coal industry.
Secondly, the judges heard from a group of firefighters, who described their experiences fighting fires in Australia and explained how such fires are getting worse and will become common rather than exceptional.
And thirdly, scientific experts explained how, thanks to developments in attribution science, it is now possible to link specific emissions to harmful effects and understand that a single coal mine could cause tipping points of irreversible, uncontrollable changes in the climate system.
A duty to care
The judicial decision was partially favorable to the petitioners. It found that the Minister of Environment owes a novel duty of care to all Australian children, who can potentially suffer ‘catastrophic harm’ from the impacts of the Vickery coal mine in New South Wales.
This reasoning might seem obvious to many as by principle governments have a well-known duty to protect human rights, especially those of children. Some legal systems have even included governmental duties to protect the unborn. For example, the Norwegian Constitution § 112, in its first part says: “Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.”
But this duty of care is novel as is connected to the causes and effects of climate change and was construed out of the Environmental Protection and Biodiversity Conservation Act 1999, i.e., in the context of an environmental licensing process. Furthermore, the Australian legal system is not based on written legal codifications and thus is not strong in human rights written prescriptions. For that reason, governmental duties of protection are rather established by the courts case by case.
This time a private law doctrine (duty of care) was creatively adapted by the litigants for public law purposes. A similar adaptation had been used in the famous Urgenda case decided by the Supreme Court of the Netherlands. Now thanks to the Sharma case, the Australian government has a duty to care for children in the context of climate change.
A celebrated ruling
The climate duty of care has not yet had practical effects in Australia as the judge did not accept the injunction (petition to stop the license). The judge ruled that even though there was a legal duty to care for children in relation to climate mitigation, which the Minister should consider during the licencing process, the final decision was for the Ministry to make.
(Not?) surprisingly, some months later the Ministry of Environment approved the extension of the Vickery coal mine. Will this jurisprudence have future legal implications for curbing carbon emissions from Australian coal? The ruling certainly has the potential to be the base of new legal developments and for policy change. This remains to be seen. But the ‘duty of care’ is not only letters written on paper – it was also written on a wall.
Let us remember that COP26 ended with a last-minute change of language that the nations would pledge to «phase down» the use of unabated coal rather than «phase out» coal.
Even though the courts did not stop the mine extension, young Australian activists still celebrated this ruling. It proved that their climate anxiety was not a dysfunctional manifestation of adolescent rebellion but rather is a healthy response to scientifically and legally sound evidence that should make us all worry – and move us into action.
The Australian Ministry of Environment decided to appeal the Sharma ruling around the same time the IPCC released its 2021 report, showing that the world had warmed by 1.1 degrees Celsius compared to pre-industrial levels and was already on track to hit 1.5 degrees.
The report said it is “unequivocal» that humans have caused the climate crisis. It further stated that cutting greenhouse gas emissions while actively removing carbon dioxide from the atmosphere is the only effective way to tackle the problem.
These two events led Extinction Rebellion activists to take the streets and paint ‘climate duty of care’ on the walls of the Australian Parliament, in what is perhaps the first legal concept ever spray-painted on a wall.
On March 15, 2022, the Federal Court of Australia overturned the judge’s decision to impose a duty of care on the Minister. The Court however rejected the governments’ argument that the judge had used unfounded evidence of climate change. The Federal Court noted that “the nature of the risks and the dangers from global warming, including the possible catastrophe that may engulf the world and humanity” were never in dispute.
The Sharma ruling does not necessarily change Australia’s climate mitigation policy or stop new coal mines. Certainly, the international context is favorable to the coal business. Let us remember that COP26 ended with a last-minute change of language that the nations would pledge to «phase down» the use of unabated coal rather than «phase out» coal. The petitioners of the Sharma case might take the case forward to a higher court, this is uncertain. Meanwhile, as a new world climate day is coming up this March 26th, Australians and all of us continue to reflect on how we can adjust our ‘care’ in the context of climate change.
Catalina Vallejo is a postdoctoral fellow at the Faculty of Law, University of Bergen. She is working on the postdoctoral project «Polycentric climate governance in action: study of the interaction between Norwegian and Amazonian agricultural policy for climate change». She is a lawyer from Colombia, holds an LLM, a MA in Peace Studies, and a Ph.D. in Law. In her doctoral dissertation, she studied climate change litigation against governments of the world and the emerging climate jurisprudence.
2021 was not only the year when extreme weather hit Europe, but also the year when environmentalists achieved groundbreaking results through climate lawsuits in various countries. This in contrast to the Norwegian climate case from December 2020, when the Supreme Court acquitted the state. The case has now been brought before the European Court of Human Rights, where other similar cases are being processed. In the article series «The great breakthrough?», the Norwegian Writers’ Climate Campaign takes a look the legal developments that are taking place internationally, and explores what role courts can play in contributing to political change both at the national level and in other countries.
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