climate change

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

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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

Social and climate change impacts considered in rejecting development consent for new coal mine: The Rocky Hill case

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On 8 February 2019 Chief Justice Preston of the Land and Environment Court handed down his judgement in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7.

The case involved the refusal of development consent to an open-cut coal mine (Project) at Gloucester in the upper Hunter Valley of NSW on a number of grounds, including the impacts of the mine on climate change and the social impact of mining on the community.

The case illustrates that proponents seeking consent for new major projects, or modifications of existing projects, with ‘material’ greenhouse gas emissions across all industries in NSW should carefully assess climate change impacts, particularly if the proposal is not ‘carbon neutral’.

Background

In December 2012, Gloucester Resources Limited (GRL) lodged a DA for consent to carry out the Project. The DA was subject to a lengthy planning process and GRL lodged an amended DA in August 2016.

Due to objections from Mid Coast Council and the public, the then Planning Assessment Commission (Commission) was asked to determine the DA. On referral to the Commission, the NSW Department of Planning and Environment (DPE) recommended refusal of the DA.

Importantly, the Minister did not previously refer the Project to the Commission for merits review. Rather, the Commission held a ‘public meeting’ and received further submissions on the Project as part of its determination process.

Following this, the Commission refused the DA on various grounds, including incompatibility with applicable land use zones under local planning controls, significant visual impacts, potential risks associated with increased noise and air quality impacts and the Project was not in the public interest.

Following the Commission’s decision, GRL lodged a merits appeal with the Land and Environment Court. Subsequently, Groundswell Gloucester (Groundswell), sought to be joined to the proceedings.

Groundswell is a non-profit community group formed by a group of Gloucester residents concerned with the environmental, social and economic future of the Stroud Gloucester Valley. Groundswell Gloucester strongly opposed development of the Project.

On 23 April 2018, the Land and Environment Court ordered that Groundswell be joined to the proceedings brought by GRL. This enabled Groundswell to lead expert evidence of the mine’s detrimental impact on climate change and on the social fabric of Gloucester.

Findings

Climate Change impacts

Groundswell argued that the Project should be refused on the basis that both the direct and indirect greenhouse gas (GHG) emissions from the Project would be inconsistent with Australia’s commitments under the UNFCCC and the Paris Agreement.

Professor Steffan, an earth systems scientist at the Australian National University gave evidence on behalf of Groundswell that in order to meet this global commitment GHGs would need to peak by 2020 and global warming would need to be limited to 2 degrees thereafter. In the Professor’s view, this goal could not be achieved while continuing to develop new fossil fuel projects.

Whilst GRL’s expert, Dr Fisher, did not dispute that climate change was real or that GHGs must be reduced to limit a global temperature rise to 2 degrees, he formed the opinion that the requirement under the Paris Accord did not require an embargo on fossil fuel development. On this basis GRL proposed alternative solutions to meet the required emission reduction targets, which do not require the prevention of coal mining. One such alternative to meet commitments was increasing the rate at which carbon is extracted from the atmosphere through ‘carbon sequestration’ and through the preservation of carbon sinks.

Further, GRL argued that ‘scope 3’ emissions, which are indirect emissions arising from sources not owned or controlled by GRL (such as from a third-party purchaser burning coal), should not be considered when assessing the Project’s impact, because Australia should not be held responsible for emissions caused by the burning of coal in other countries.

The final argument by GRL was that most of the coal produced by the Project would be ‘coking coal’. This is an essential component in the making of steel, with limited alternative uses. GRL argued that this important purpose justifies the approval of the Project despite any adverse climate impacts.

Upon the courts review, Chief Justice Preston accepted that Scope 3 emissions should be considered when assessing the Project’s impact, given they constitute ‘downstream’ emissions pursuant to clause 14(2) of the Mining SEPP. Downstream emissions in this context mean the emissions caused by burning the coal produced by the mine by end users. He also found there to be a casual link between the Project and climate change consequences as all of the Project’s direct and indirect GHG emissions would contribute ‘cumulatively’ to total GHG emissions.

As there was no specific proposal to offset the Project’s impacts by removing GHGs from the atmosphere, the argument regarding carbon sequestration as an alternative measure was rejected.

The argument that coking coal is critical for the production of steel was overstated by GRL, as the demand for coking coal from steel production in Australia could be met by existing and approved mines.

Other negative impacts on existing uses

The primary arguments against approval of the Project centred around clause 12 of the Mining SEPP. This required the consent authority to consider the compatibility of the proposed mine with other land uses in the vicinity.

Accordingly, the judgment carefully weighed the Project’s benefits against significant adverse visual, amenity and social impacts, including significant impacts on existing, approved and likely land uses in the vicinity of the mine. Chief Justice Preston considered various adverse factors, including:

  • Visual impacts: high visual contrast with surrounding landscape, intrusive night lighting, changes to the visual character and other factors, contributing to a high visual impact. The Project would be incompatible with the rural character of the land and the residential and rural-residential, agricultural and tourism uses in its vicinity;
  • Amenity impacts: noise and dust impacts, contributing to social impacts;
  • Social impacts: The Project was likely to have major negative social impacts including impacts on the composition, cohesion and character of the community and local people’s sense of place, adverse impacts to the culture and Country of Aboriginal people, and issues of distributive inequity which would not be adequately addressed by way of the mitigation measures proposed by GRL;
  • Public benefits: the alleged public benefits of the Project (suggested by GRL to include an economic benefit to NSW of $224.5 million over the life of the mine) were substantially over-stated and did not outweigh either the public costs of the proposed mine or the public benefits of the existing, approved and likely preferred uses in the vicinity of the Project, if those uses were left unaffected by the Project. Significantly, while the benefits of the Project would be present only for the life of the Project, the negative impacts would endure.

Take home message

The increasing recognition of causative links between fossil fuel developments and climate change mixed with Australia’s increased commitment to international climate accords has led to social and climate change impacts being factored into the decision-making process when deciding to grant development consent for large projects. This is particularly relevant for large fossil fuel dependent developments.

The consent authority now bears a real responsibility to decide whether greenhouse gas emissions of each development are acceptable, and if not, if it is a sufficient reason to refuse consent.

Large developments are now on notice.

 

Article by Adam Kennedy-Hunt, Law Student/Paralegal

Causes of Environmental Litigation and How it is Being Pursued in the US to Mitigate Climate Change

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The Honourable Justice Brian Preston SC, Chief Judge of the Land and Environment Court of NSW, presented his paper “Using Environmental rights to address climate change” at the Law Council’s Future of Environmental Law Symposium on the 19 April 2018. The paper explores three types of fundamental rights as the basis for claims of environmental protection and the scope of each.

 

A lack of Australian litigation in environmental rights has led to the paper primarily exploring notable cases in the United States and other countries and the controversial application of these rights in mitigating climate change. What are these rights which enforce claims for protection?

Justice Preston explores three sources of law for environmental rights, being:
1. The public trust doctrine
2. Constitutional rights and
3. International human rights.

Each one will be explored separately below.

The public trust doctrine

Many US climate change litigants have relied on the public trust doctrine to enforce governments and government enterprises to mitigate greenhouse gas emissions.

The public trust doctrine holds that the state (as the trustee) is under a duty to maintain and protect common natural resources (trust property) in a manner that is in the interest of the public (beneficiaries). This may include, for example, the state government of California being obligated to protect human and environmental uses of navigable waters, when allocating water resources (as in the Mono Lake case: National Audubon Society v Department of Water and Power of the City of Los Angeles (1983) 658 P 2d 709).

The various litigations brought by Our Children’s Trust in the United States are exploring the application of the public trust doctrine to the impact of climate change on public assets, such as navigable waters, submerged and submersible lands, and the atmosphere. In the controversial US District Court case of Juliana v USA,1 the youth plaintiffs (ranging from ages 9-19) sued the US Government due to its inaction to regulate carbon dioxide emissions. This inaction was claimed to violate the Government’s fiduciary duty under the public trust doctrine.

The District Court declined to summarily dismiss the action, finding that there was sufficient possibility that the Government’s conduct violated the public trust doctrine. The Court deemed it ‘unnecessary’ to determine whether the atmosphere by itself is a public trust asset because the plaintiffs also alleged public trust violations in connection with the territorial sea (ocean) which was accepted to be a public trust asset. The public trust doctrine was not limited to State governments and the Federal government also holds public assets in trust for the people.

The Court held that the public trust doctrine cannot be legislated away, so it has not so it has not been displaced by legislation such as clean air legislation. The doctrine both predates and is secured by the Constitution.

Rights under the constitution

Climate change litigation has also been brought claiming violations of constitutional or statutory rights. Many of these involve a general right to life or a specific right to a clean and healthy environment. An example outside the United States is the litigation by a farmer in Pakistan who successfully claimed that the Pakistan government’s inaction in implementing government policies for adaptation to climate change offended his fundamental rights, including the right to life (Asghar Leghari v Federation of Pakistan (Lahore High Court, WP No 25501/ 2015, 18 January 2016)).

In the United States, some litigation has claimed a violation of a different constitutional right, being the ‘due process’ clause contained within the US and various state constitutions.

Again, in Juliana v USA, the youth plaintiffs argued that the Government’s inaction and negligence in regulating greenhouse emissions violated the due process clause which prevents the Federal government from depriving a person of “life, liberty or property” without the “due process” of law. The District Court declined to summarily dismiss the proceedings.

The Court found a nexus between the youth plaintiffs’ lives and livelihood and the current sustainability of the environment.

The Court found that “a stable climate system is quite literally the foundation of society” and a stable climate system is a necessary condition to exercising other rights to “life, liberty and property.” The long- awaited trial for this case is set for 29 October 2018.

Similarly, in the Hawaiian case of Re Application of Maui Electric Company,2 the Hawaii Public Utilities Commission approved a ‘power purchase’ from an energy producer whom relied on the burning of coal and petroleum. The plaintiff environmental organisation submitted it had a property interest in a ‘clean and healthful environment’ pursuant to Article XI, section 9 of the Hawaii Constitution, which would be affected by the approval of the power purchase. The plaintiff argued that it should have been afforded a ‘due process’ hearing resulting from the risk of this decision depriving this property interest.

The Supreme Court, on appeal, found that the decision to approve the power purchase would adversely affect the plaintiff’s constitutional interest in a ‘clean and healthful environment’ and that due process required the Commission to have allowed the plaintiff to participate in a preliminary hearing prior to the Commission approving the power purchase.

International human rights

The last category of rights presented by Justice Preston is the more general one of human rights under domestic and international conventions. One example was the recent advisory opinion of the Inter-American Court of Human Rights (IACHR).3

The Colombian government requested the IACHR to issue an opinion on the environmental impact of the proposed major infrastructure projects in the Caribbean. The IACHR concluded on a general level that there is an “irrefutable relationship” between the protection of the environment and human rights. The IACHR held that the degradation of the environment through climate change affects the ‘rights to life’ and the ‘personal integrity’ of the human race.

The IACHR stressed that the governments should act in accordance with the ‘precautionary principle’ for the purposes of protecting the right to life before approving large projects. In pursuing a ‘precautionary’ approach, states should regulate activities and carry out environmental impact studies where there is a risk of significant environmental damage.

What can be taken from this?

Ultimately, Justice Preston explores three types of rights used to enforce claims for environmental protection: the public trust doctrine, constitutional rights and international human rights. Although these three types of rights seem simple at face value, their application in US courts in pushing governmental action to mitigate climate change has been problematic and come with much resistance. If climate change is to be addressed in the near future and human rights are to be preserved, climate change litigation will become of increasing importance.

Click here for a fuller understanding of His Honour’s paper.

 

This article was prepared with the assistance of Adam Kennedy-Hunt, Law Student, Hunt & Hunt. It first appeared in the Winter 2018 edition of LPS News, published by the Legal Practice Section of the Law Council of Australia.

 

1. Juliana v USA (D Or, 6:15-cv-1517-TC, 8 April 2016).
2. 408 P 3d 1 (Haw Sup Ct, 2017).
3. Inter-American Court of Human Rights (Advisory Opinion OC- 23/17 of November 2017).