Australian court says minister has ‘duty of care’ to children in coal decision

Out-Law News | 04 Jun 2021 | 2:42 am | 2 min. read

The Federal Court of Australia has issued a landmark ruling that the environment minister owes a duty of care to children to protect them against the impacts of climate change.

Vickery Coal Pty Ltd is a wholly owned subsidiary of Whitehaven Coal Pty Ltd, which has permission to develop a coal mine in northern New South Wales. In February 2016 Whitehaven applied to the environment minister for an extension of the project.

Under Article 130(1) and Article 133 of the Environment Protection and Biodiversity Conservations Act 1999 (Cth) (the Act), the minister has the power to approve or refuse the extension of the project. The proposed extension of the coal mine will result in a significant amount of additional CO2 being produced and released into the atmosphere.

A class action claim against environment minister Susan Ley was brought by eight Australian children and their litigation representative Sister Marie Brigid Arthur. They said that the minister must exercise powers under the Act with reasonable care to not cause the children harm resulting from the extraction of coal and emission of Co2 into the atmosphere.

In establishing the duty of care, Judge Bromberg held that it was reasonably foreseeable that an increase in CO2 emission from the extension project would lead to personal harm of the children “where the foreseeability of the probability of harm from the defendant’s conduct may be small, but where the foreseeable harm, should the risk of harm crystallise, is catastrophic”.

“It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the children… To say that the children are vulnerable is to understate their predicament,” said Judge Bromberg.

Judge Bromberg made reference to contemporary social conditions and community standards, saying that a minister ought to take reasonable care to avoid causing personal injury to the eight children when contemplating the approval of the expansion of the Vickery coal project.

The Court rejected the granting of an injunction which would have stopped the minister from approving the expansion of the Vickery coal project.

Energy expert George Varma of Pinsent Masons, the law firm behind Out-Law, said: "Although the judgement is confined to the Vickery coal project, the decision will have far-reaching effects on the future approval of fossil fuel energy projects. The need for the private sector to start thinking about reducing carbon emissions is no longer an aspirational target or long-term goal, companies must act now.”

“The ruling also sends a message to other ministers with respect to their decision making and the way in which they manage their portfolios, " he said.

The parties are to make further submissions on the operation of the duty of care and what impact those duties will have on the minister’s decision and the expansion of the coal mine. As the Court rejected the injunction, the minister is still able to approve the expansion project. However, she ought to take into consideration all the new materials that have come to light in the proceeding.

"In order to mitigate the increasing climate litigation risk, both the private sector and the government sector need to have realistic plans, which support their targets and which can realistically and practically effect change,” said Varma.