In Minister for the Environment v Sharma  FCAFC 35, a three-judge panel of the Full Federal Court of Australia (the “Court”) struck a blow to climate change litigants by rowing back on a first instance decision imposing a novel duty of care on the Australian Minister for the Environment.
In September 2020, eight Australian teenagers, represented by their litigation guardian, brought a class action claim as representatives of all Australian children. The claim sought to prevent the approval of an expansion of the Whitehaven coal mine in New South Wales, on the grounds that the Australian Minister for the Environment owed a duty of care to Australian children to exercise their powers under the Environment Protection and Biodiversity Conservation Act with reasonable care, so as to avoid causing harm (including personal injury or death) that would arise from emissions of carbon dioxide into the Earth's atmosphere and resulting “climatic hazards” (the "Duty of Care").
The first instance decision in Sharma v Minister for the Environment,  FCA 560 was seen as a seminal moment in climate change litigation, with the Judge finding that a Duty of Care existed, and was owed by the Australian Minister to Children resident in Australia..
On 15 March 2022, the First Instance decision was overturned on appeal, with the Court rejecting this novel Duty of Care. In their lengthy judgment, the Court also highlighted inter alia (in Chief Justice Allsop’s reasoning), that matters of “core government policy” were more properly dealt with by the executive and legislative branches than by the judiciary – it was not the court’s role to rule on perceived lack of wisdom of government policy.
While the appeal in this case was successful and no Duty of Care was found to be owed, this judgment is also notable for a clear and stark assessment from Allsop CJ: “by and large, the nature of the risks and the dangers from global warning, including the possible catastrophe that may engulf the world and humanity was not in dispute”.
While a recent spate of climate litigation decisions seemed to some to be opening the floodgates to climate change litigants (notably Milieudefensie et al. v. Royal Dutch Shell PLC), this Australian decision is the latest in a number of cases around the world that have seen courts take step back from what could be seen as political decision-making. By way of example, the English High Court (Administrative Court) also recently ruled that the court’s role is not a political one (see our update on R (Friends of the Earth Ltd) v Secretary of State for International Trade/Export Credits Guarantee Department (UK Export Finance)  EWHC 568 (Admin) here). It will be interesting to see how litigant arguments progress from here.
We continue to monitor the evolution of climate litigation and will report on developments as they arise.
The posited duty throws up for consideration at the point of breach matters that are core policy questions unsuitable in their nature and character for judicial determination.