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Author: Earth Refuge

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Minister for the Environment v Sharma [2022] FCAFC

Date: 15 March 2022 

Court: Federal Court of Australia (intermediate appellate court) 

Citation(s): Minister for the Environment v Sharma [2022] FCAFC 35 

Short summary

In May 2021, The Australian Federal Court found that the Federal Environment Minister has a novel duty of care to prevent harm to young people as a result of climate change. After the Australian government’s appeal, the Full Federal Court now unanimously holds that the Minister for Environment of Australia does not owe a duty of care to Australian children to avoid causing personal injury or death. 

Summary by: Nicole Gasmen

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision sets aside orders 1 and 3 in Sharma by her litigation representative Sister Marie Brigid Arthur v. Minister for the Environment [2021] FCA 560. It is binding in Australia courts.  

Key facts 

See: https://legal.earthrefuge.org/sharma-v-minister-for-the-environment/  

Previous instances  

In July 2021, the Federal Court of Australia held that the Australian Minister for Environment owed a novel duty of care to Australian children under the Environment Protection and Biodiversity Conservation Act of 1999 (EPBC Act).  

This duty required the minister to take reasonable care to avoid causing personal injury or death to all Australian children at the time of the proceeding via the carbon dioxide emissions of the Vickery Extension coal project. The minister appealed the decision, and the Full Federal Court heard the appeal in October 2021. 

Summary of holding 

  • The Full Federal Court held unanimously (Chief Justice Allsop, Justice Beach, and Justice Wheelahan) that the novel duty of care to avoid causing personal injury or death should not be imposed on the Minister for Environment. Each justice wrote separately. 
  • Chief Justice Allsop reasoned that the duty of care should not be imposed because: 
    • The character of this matter is not appropriate for the judiciary; it should be left to lawmakers. (¶¶ 248-253) 
    • The duty of care was inconsistent with the EPBC Act because it is not primarily concerned with the protection of the environment or response to global warming. (¶ 101) 
    • The Minister of Environment lacks control over the harm of climate change and of climate-related disasters such as brushfires and heatwaves. Due to the lack of determinacy of the direct cause of these climate events, the Minister lacks liability for damages caused by such brushfires, heatwaves, and rising sea levels, not to mention damages ongoing into the future. (¶¶ 341-343) Further, the children who brought the case lack legal special vulnerability. (¶¶ 338-341) 
  • Justice Beach reasoned that the duty of care should not be imposed because: 
    • “There is not sufficient closeness and directness between the Minister’s exercise of statutory power and the likely risk of harm to the respondents and the class they represent.” (¶¶ 362-363) 
    • Imposing a duty would result in indeterminate liability. (¶ 702) 

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AF (Tuvalu) [2015] NZIPT 800859

Date: 20 October 2015

Court: New Zealand Immigration and Protection Tribunal

Citation: [2015] NZIPT 800859

Short summary

This case was heard before the New Zealand Immigration and Protection Tribunal. It is an appeal against the decision taken by a refugee and protection officer to deny refugee status or protected person status to the appellant, a 25-year-old man of Tuvaluan nationality who had been served with a deportation order. The appellant based his appeal on the claim that he had a real chance of being persecuted if returned to his country of nationality in relation to an infringement of his right to work and of his right to safe drinking water. The appellant also claimed that his deportation to Tuvalu would be a violation of his daughters’ rights under the 1989 Convention on the Rights of the Child. The Tribunal dismissed the appeal on the ground that the appellant could reasonably access clean drinking water and reasonably attempt to gain employment in Tuvalu.

Summary by: Lucas Robinson

Link to original judgement

Click here to open the case in PDF format

Weight of decision

The New Zealand Immigration and Protection Tribunal is an independent judicial body and has jurisdiction to hear appeals against deportations, refugee claims, and other immigration decisions. A decision from the New Zealand Immigration and Protection Tribunal can be reviewed by the High Court only if an appeal is made on a point of law. In that sense, the New Zealand Immigration and Protection Tribunal’s decisions carry substantial weight in New Zealand domestic law.

Key facts

The appellant was a citizen of Tuvalu, who was 25 years old at the time of the hearing. In 2003, he moved to New Zealand with his mother. This event forced him to drop out of school in Tuvalu. He has been living in New Zealand since then and never went back to school.  In 2008, he married a New Zealand citizen and they had two daughters together. Between 2008 and 2014, the appellant was convicted of multiple offences/crimes in New Zealand. As a result, in July 2014, the appellant was served with a deportation order. In December 2014, the appellant submitted a claim to be recognised as a refugee or as a protected person. A refugee and protection officer denied his claim. This case is the appeal against the aforementioned refusal.

The appellant appealed the decision on three grounds. First, the appellant fears returning to Tuvalu because of the lack of employment opportunities. Indeed, he fears that the government of Tuvalu will discriminate against him due to his criminal convictions and lack of formal education, therefore violating his right to work. Second, the appellant claims that, if returned to his country of nationality, he would not be able to exercise his right to access safe drinking water due to the effects of climate change. Third, the appellant claims that his deportation to Tuvalu would violate his daughters’ rights under the 1989 Convention on the Rights of the Child.

Previous instances

In July 2014, the appellant was served with a deportation order as a result of his convictions for crimes he committed between 2008 and 2014. His attempt to get this deportation order revoked was unsuccessful. Facing deportation, the appellant submitted an application to be recognised as a refugee or protected person. A refugee and protection officer declined to grant the appellant’s application.

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AF (Kiribati) [2013] NZIPT 800413

Date: 25 June 2013

Court: New Zealand Immigration and Protection Tribunal

Citation(s): AF (Kiribati) [2013] NZIPT 800413, New Zealand: Immigration and Protection Tribunal, 25 June 2013

Short summary

Sea level rise and storms in Kiribati did not create a claim to protection under the Refugee Convention, the Convention Against Torture, or the International Covenant on Civil and Political Rights. These environmental disasters may create circumstances in which persecution can occur, and that persecution might give rise to a protection claim.

Summary by: Joseph Lavelle Wilson

Link to original judgement

Click here to open the case in PDF format

Weight of decision

This is the decision of an administrative tribunal and holds moderate weight within the jurisdiction.

Key facts

AF, a citizen of Kiribati, requested protection and/or refugee status from the government of New Zealand after changes to his home country’s environment caused by sea level rise associated with climate change.

Kiribati is a small nation in the Central Pacific Ocean made up of 33 atolls. The tribunal reviewed evidence regarding the situation in Kiribati. A 2007 National Adaptation Programme of Action filed by Kiribati under the United Nations Framework Convention on Climate Change provided a bleak picture of the impact of sea level rise on the islands of Kiribati. According to the programme the maximum height of the atolls is three-four meters above sea level, flooding and erosion are rife, and the primary source of potable water for most people in Kiribati – lenses of freshwater floating on seawater at the centre of some atolls – is at increasing risk of saltwater intrusion from storm surges.

AF’s testimony about his life in Kiribati was also reviewed by the tribunal. He was born in the 1970s on a small islet north of Tarawa, the main island and capital of Kiribati. He moved to Tarawa after finishing his schooling. In the early 2000s, more people from other atolls began moving to Tarawa, resulting in overcrowding and conflict. Flooding and erosion worsened over time, causing significant hardship to AF and his family. Eventually AF moved to New Zealand where he made his claims for protection.

Summary of holding

Although climate-based claims to protection may be possible, in this case the tribunal found that there was no evidence to support AF’s claim that he had a well-founded fear of persecution on the basis of a protected ground, and so his claims to protection were dismissed.

Important judgement points:

  • AF’s evidence about the situation in Kiribati was accepted: The tribunal found that the South Tarawa area of Kiribati was struggling to carry its population due to the compromising effects of population growth and urbanization which were exacerbated by sudden onset environmental events (storms) and slow-onset environmental processes (sea level rise).
  • Internally displaced people cannot meet the requirements of the Refugee Convention: AF submitted that he was an internally displaced person, and that this grounded a right to claim refugee status in New Zealand. The tribunal found that the Guiding Principles on Internal Displacement referred to by AF in his argument were a soft-law instrument not relevant to AF’s situation, as he was by definition no longer internally displaced.
  • Persecution within the legal definition of ‘refugee’ requires human agency: The tribunal rejected AF’s formulation of ‘refugee’ as one that was broader than the legal concept of ‘refugee’, which it confirmed requires some aspect of human agency in terms of persecution on one of the five protected grounds. At the same time, the tribunal stated that this doesn’t mean environmental degradation could never create pathways into the Refugee Convention jurisdiction.

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Native Village of Kivalina v. ExxonMobil Corp.

Date: 12 September 2012

Court: US Court of Appeals, Ninth Circuit

Citation: 696 F.3d 849

Short summary

The Village of Kivalina, a self-governing, federally recognized tribe of Inupiat Native Alaskans, together with the City of Kivalina, brought action against twenty-four oil, energy, and utility companies for federal common law nuisance, based on emission of greenhouse gases which contributed to global warming, causing the erosion of arctic sea ice and the displacement of the inhabitants. Defendants filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending that Plaintiff’s claims were non-justiciable political questions and that Plaintiffs lacked Article III standing. The district court granted the motion to dismiss, the Ninth Circuit affirmed dismissal and the Supreme Court denied certiorari.

Summary by: Jane Kundl

Link to original judgement

Click here to open the case in PDF format

Weight of decision

Binding on the Ninth Circuit in the United States, persuasive authority for other circuits and state courts.

Key facts

Kivalina is a small city located on the tip of a six-mile barrier reef on the northwest coast of Alaska, approximately 70 miles north of the Arctic Circle. The Village of Kivalina is a federally-recognized tribe of Inupiat Native Alaskans who live in the municipality. Of 400 residents, 97 percent were indigenous Alaskans. Sea ice that forms a coastline in the fall, winter, and spring protected the land from storms and erosion. But as the sea ice became thinner, formed later, and broke up earlier, erosion and damage to property from sea storms has increased, threatening the entire city and requiring relocation of inhabitants.

Kivalina’s claim was based on greenhouse gas emissions leading to global warming which in turn caused the reduction in sea ice. They argued that the defendants, 24 oil, gas, and utility companies, (the “Energy Producers”) contributed substantially to global warming and thus were responsible for their injuries. They brought a claim under federal common law nuisance, alleging that the production of greenhouse gas emissions constitutes “a substantial and unreasonable interference with public rights, including the rights to use and enjoy public and private property in Kivalina.” (p. 854). State law claims of concert of action and conspiracy to mislead were brought as well. Because the federal law claim was dismissed, the merits of the state law claims were not addressed.

Previous instances

The lower court, the US District Court of Northern California, Oakland Division, granted defendants’ motion to dismiss on two grounds:

  • First, that the issue of greenhouse gases causing global warming was an inherently non-justiciable political question, because the court would have to make determinations regarding energy and environmental policy without guidance from the political branches.
  • Second, that Kivalina lacked Article III standing as they presented no facts showing the injuries were “fairly traceable” to the actions of the Energy Producers. Plaintiffs could not establish the “substantial likelihood” or “seed” causation standards. The court also concluded that Kivalina’s injury was too geographically remote from the source of harm to infer causation.

Plaintiffs appealed and the Ninth Circuit court upheld the motion. Plaintiffs filed a petition for certiorari with the Supreme Court which was denied.

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Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex. rel., Barez

Date:  1 July 1982

Court: Supreme Court of the United States

Citation:  458 U.S. 592

Short summary 

The United States Supreme Court held that a State can establish standing to bring suit under the doctrine of parens patriae when its quasi-sovereign interests have been injured. Quasi-sovereign interests include those interests that the State has in the health and well-being – both physical and economic – of its citizens. When Virginia farmers discriminated against Puerto Rican farmworkers in violation of federal statute, Puerto Rico alleged an injury sufficient to establish parens patriae standing.

Summary by:  Sara Sam-Njogu

Link to original judgment

Click here to open the case in PDF format

Weight of decision 

Given the jurisdiction of the US Supreme Court, this decision is significant for States, and potentially other countries, that wish to establish standing when a large segment of their population has been physically and/or economically harmed.

Key facts

Respondent was the Commonwealth of Puerto Rico, which sued several apple farmers in the state of Virginia. Puerto Rico contended that despite a substantial advertised need for temporary farm laborers to pick the large 1978 apple crop, its farmworkers had been improperly refused employment based upon their Puerto Rican citizenship, illegal discrimination under several federal laws. Many of the workers were advised by the US Department of Labor not to travel to Virginia because growers were refusing to employ the workers who had already arrived, and those who had been employed were dismissed quickly for alleged unproductivity. The growers were hiring foreign workers instead. Puerto Rico sought to establish parens patriae standing because this discrimination invaded the Commonwealth’s interest in its citizens’ full and equal participation in the federal employment service scheme under the relevant federal laws.

Previous instances 

In 1979, Puerto Rico filed suit in United States District Court for the Western District of Virginia (469 F.Supp. 928). While the court found that Puerto Rico may be capable of asserting parens patriae interests for some cases, it held that the relatively small number of farmworkers refused employment in this case – approximately 787 – meant that the injury was too small to Puerto Rico’s economy overall to establish standing.

On appeal, the Fourth Circuit reversed, holding that the District Court’s interpretation of the issue was too narrow (632 F.2d. 365). Instead, the proper focus was the “deliberate efforts to stigmatize the labor force as inferior,” conduct that would have an indirect effect on a substantial portion of Puerto Rico’s citizenry. It found the injury sufficient to establish parens patriae standing.

The Supreme Court granted certiorari, leading to the current holding.

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