For everyone The Lowdown: Case to make us climate losers or leaders?

  • By Myke Bartlett
  • This article was published more than 2 years ago.
  • 14 Sep 2021
Students stand for climate action. Photo: Rachel Power

As I write this, Greece is on fire. Videos show a red sky choked with smoke. It’s all very apocalyptic and, to those of us who remember the Australian bushfires of 2020, all too familiar.

It would be good to think that the devastating bushfires of last year were a wake-up call to our leaders. Instead, our PM has twice explicitly refused to take action to reduce our carbon emissions, despite (or perhaps because of) Australia remaining the world’s top coal exporter. Last year, Morrison refused to match 100 other countries in bringing forward a net zero emission target to 2050. In April, he again shrugged off pressure from Joe Biden to announce an increased target. 

Now, the latest IPCC report has issued a dire warning to stop burning fossil fuels or face “hell on earth”. Morrison’s response? Blaming developing countries and claiming Australia has a good track record, despite being ranked dead last out of 193 UN members in this year’s Sustainable Development Report.

Morrison may not live long enough to face the worst consequences of his inaction.

Morrison may not live long enough to face the worst consequences of his inaction. Those will be borne by the younger generation, many of whom have risen up in protest over the past few years as part of the School Strike 4 Climate movement. But one young woman has taken more direct action. Instead of fighting on the streets, Anj Sharma has attacked the federal government where it can’t ignore her – in the federal court. And, incredibly, she’s won.

With the assistance of 86-year-old nun (and ex-teacher) Brigid Arthur, Anj and seven other teenagers took federal environment minister Sussan Ley to court, alleging that approving a proposed coal mine extension project in NSW would contravene the minister’s duty to protect young people from the devastating impacts of climate change. The expansion of the mine was forecast to add an extra 100 million tonnes of CO2 – about 20% of Australia’s annual climate footprint – being released into the atmosphere. Anj argued that, by using her powers to approve the mine, the minister would be breaching a common law duty of care to protect younger people against future harm.

It was a novel approach. Previous court cases have tended to hang on proving that approval of a project would cause environmental damage or worsen climate change. This has allowed the minister to repeatedly dismiss other cases – including the case against the Adani mine – because the impacts of a project on climate change are too uncertain. She has not needed to pretend climate change isn’t happening, but rather say that because any possible impacts haven’t happened yet, they can’t be held up as proof that the project is a bad idea. It’s much like arguing that the likelihood of a hangover is no reason not to drink until dawn on a school night.

Anj’s case was different because it hinged on the impact of the mine on specific individuals and their substantive rights as minors not to be harmed by federal government decisions. Each of the eight teenagers shared stories and evidence about how their lives had already been affected by climate change.

Sussan Ley has launched an appeal to the decision, effectively going back to court to prove that she does have “the right to harm children”.

Finding in favour of the climate campaigners, Justice Bromberg declared that the minister must take “reasonable care” to “avoid causing personal injury or death” to Australian residents under 18, which means not approving projects forecast to release large amounts of CO2 emissions into the Earth’s atmosphere.

This is an extraordinary decision. It sets a legal precedent that means the federal government has a duty to avoid causing harm to young people when approving fossil fuel projects. If the judgement stands, it will likely make it much harder for the government to fast-track large-scale projects such as Adani, even if the future impacts of those projects are uncertain.

True to form, the government has been quick to act in its own interests. Ley has launched an appeal to the decision, effectively going back to court to prove, in the words of Anj, that she does have “the right to harm children”. Or, at the very least, that she has the right to not worry whether her decisions will hurt them.

One of the strengths for the campaigners in defending the appeal is that the Justice’s findings of fact around harm caused to minors by climate change cannot be challenged. Even if it does not survive, the decision’s impact will live on. Justice Bromberg’s reasoning lays out a legal basis for others to claim negligence against governments and companies that breach this particular duty of care. It also paves the way for miners and polluters to be held liable for damages in negligence by contributing to climate change.

It’s the sort of decision that Tobacco merchants fought for years, in the face of incontrovertible evidence their products caused cancer. No doubt, the world will be looking on. If the decision in favour of Anj’s group holds, we might just go from being climate change losers to leader of the pack.

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