Environment minister appeals ruling in teenagers’ climate change court case
A judge made several crucial errors when he declared Environment Minister Sussan Ley had a duty to consider the health of children while deciding on a coal mining project expansion, a court has been told.
Ms Ley is appealing a Federal Court decision handed down in May in a case where eight Australian teenagers took their climate change fight to the courts.
Lead applicant Anjali Sharma and seven others sought to stop a proposed mining project near Gunnedah, NSW, from being expanded, arguing Ms Ley owed the children of Australia a duty of care when it came to potential climate change injuries.
Justice Mordecai Bromberg did not bar Ms Ley from approving the proposed extension to the mine project, which has not yet been built, and the minister gave it the green light last month.
But he did find Ms Ley had “a duty to take reasonable care to avoid causing personal injury” to children when she decided on the project extension under the Environment Protection and Biodiversity Conservation Act 1999.
The novel precedent was heralded as a significant win by the teenagers and their supporters.
Solicitor-general Stephen Donaghue QC told the Federal Court on Monday afternoon the EPBC Act was not an appropriate vehicle for the “novel duty of care” identified by Justice Bromberg.
He said the act had specific parameters, such as “a risk to a type of parrot or possum”, and was not about protecting the environment generally.
The barrister argued Justice Bromberg made a mistake when he expanded the object of the act to not just be about protecting parts of the environment, but about protecting the interests of human beings living in the environment.
Some projects involving large amounts of coal would not require any approval from the Environment Minister, Mr Donaghue said, while others involving less significant quantities would, so long as they impacted species or habitats protected by the EPBC Act.
Whether or not the minister had to weigh in on a particular project “entirely depends on matters that have nothing at all do with the extent to which the coal that is mined might result in the generation of greenhouse gases”, he said.
Ms Ley’s capacity to influence if Australian coal had an impact on global emissions was “at best piecemeal”, the barrister added.
Ms Ley also contends the duty of care is “incoherent” with the act and distorts her capacity as minister.
Justice Jonathan Beach offered up the hypothetical example of a proposed mine where silica dust would likely spread across a township, placing residents at high risk of the lung disease silicosis.
He asked Mr Donaghue if it would be “incoherent” to impose a duty of care in that scenario. The barrister replied that it would be, if it was done by reference to the EPBC Act.
“There are people who would be liable in that situation, but the Environment Minister is not one of them,” he said.
The eight teenagers who brought the legal action against Ms Ley are Anjali Sharma, Isolde Shanti Raj-Seppings, Ambrose Malachy Hayes, Tomas Webster Arbizu, Bella Paige Burgemeister, Laura Fleck Kirwan, Ava Princi and Luca Gwyther Saunders.
They were congratulated over the May ruling by Swedish 18-year-old Greta Thunberg, who rose to the forefront of the youth climate movement after she protested inaction by going on strike from school.
Sharma and the group had argued the continued emission of carbon dioxide into the atmosphere would drive intense bushfires, floods, storms and cyclones and leave them vulnerable to injury, sickness, economic loss and even death towards the end of this century.
“Broadly speaking, it is at that time that, unlike today’s adults, today’s children will be alive and will be the class of persons most susceptible to the harms in question,” Justice Bromberg wrote in his judgment.
“Indeed, the applicants say that today’s children will live on Earth during a period in which, if CO2 concentration continues to increase, some harm is very probable, serious harm is likely and cataclysmal harm is possible.”
Ms Sharma and her group argued Ms Ley had the power to do something about this, but they did not.
Ms Ley did not dispute the “serious threats and challenges” presented by climate change threat but said there was no duty of care.
The hearing continues on Tuesday before Chief Justice James Allsop, Justice Dennis Wheelahan, and Justice Beach.
Originally published as Environment minister appeals ruling in teenagers’ climate change court case
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