No duty of care to young people concerning future climate change: Federal Court turns off climate control…, for now

No duty of care to young people concerning future climate change: Federal Court turns off climate control…, for now

Introduction: evolution of the law: climate change

To paraphrase Charles Darwin, adaptation is the key to survival. The law too is a living organism and needs to continually evolve in line with society to serve its intended purpose. Nowhere is this more pertinent than the law’s relationship with climate change which necessarily involves grappling with future unknown circumstances and unpredicted legal consequences.

In Environment v Sharma [2022] FCAFC 35 (“Sharma”), the Full Court of the Federal Court pumped the brakes on a climate change class action commenced by eight people aged between 13-17, who claimed to represent all Australians under the age of 18.  On appeal, the Full Court overturned Bromberg J’s declaration and unanimously rejected imposing a duty of care on the NSW Environment Minister to young Australians who may suffer harm from the global warming impacts associated with her powers.

What are the key issues for courts to consider?

Globally, recent cases are raising climate change issues and are challenging the traditional formulation of the law of negligence. Courts are being asked questions such as:

  • Do governments and corporations have a legal obligation to protect the population (including future generations) against the negative impacts of greenhouse gas emissions?
  • Is it possible to quantify the liability of governments and corporations in a claim concerning global warming?

Overseas courts led the charge. In May 2021, the District Court of the Hague made orders requiring Shell Plc to reduce its carbon emissions by 45% by the end of 2030 in Milieudefensie et al. v. Royal Dutch Shell C/09/571932.

Sharma: A landmark decision but overturned: change is imminent

In Sharma, Bromberg J delivered a landmark judgement. While granting approval to extend the Vickery Coal Project in New South Wales, his Honour declared that the Minister owed a duty of care to young Australians who may suffer harm from the global warming impacts associated with exercising ministerial powers under the Environment Protection and Biodiversity Conservations Act 1999 (Cth) (“Act”).

The effect of Bromberg J’s (albeit overturned) declaration is hard to understate. It would open the way for any number of companies or government entities to be held liable for damages in negligence in the future due to their contributions to global warming.

While the Full Court held that imposing such a duty on the Minister was a bridge to far, the decision foreshadows that changes to the legal landscape are imminent.

The reasons: why the Court was reluctant to impose a duty : Legal v Policy

The appellate judges reached a unanimous outcome but from different angles. The basis for their decisions can be classified as technical or policy.

From a technical perspective, the judges relied on issues of indeterminacy and causation. That is, any harm flowing from the Minister’s decision could not be considered reasonably foreseeable to result in material harm with respect to climate change outcomes. These technical  considerations are less susceptible to evolution.

By contrast, a number of judges, including Chief Justice Allsop held, based on a policy approach, that a private negligence claim is not a suitable forum for assessing the appropriate legal response to climate change. This logic was also used by the New Zealand Court of Appeal in Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552 in a claim brought against a corporate in respect of greenhouse gas emissions.

By definition, this policy based approach is more susceptible to adaptation. In fact, despite agreeing with the technical arguments, Beach J applauded Bromberg J for his innovation in creating the novel duty of care but said it was for the High Court to adjust the traditional elements of negligence to adequately address climate change.

The future: what’s next?

We will know shortly (mid-April) whether the plaintiffs will seek leave to appeal to the High Court. Regardless, these issues will be again scrutinised in Pabai Pabai & Anor v Commonwealth of Australia (“Pabai”) which is currently before the Federal Court. That case concerns a claim by Torres Strait Islanders who assert that the Commonwealth owes them a duty of care to ensure that their traditional lands are not rendered uninhabitable due to rising sea levels.

It is only a matter of time before a negligence claim in relation to climate change comes before the High Court and the tort of negligence may be forced to adapt to its current climate. In this environment, It would be prudent for companies to consider their potential exposure in relation to climate change based claims.


~ with Christian Mennilli, Lawyer

Our Litigation and Dispute Resolution Lawyers