Nicole Gasmen – Earth Refuge Legal

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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Date: 17 January 2020

Court: U.S. Court of Appeals for the Ninth Circuit

Citation(s): Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020)

Short summary

A group of young people sued the United States government for failing to prevent climate change, seeking an order requiring the government to develop a plan to phase out domestic fossil fuel emissions. The plaintiffs claimed violations of their substantive due process, equal protection, the Ninth Amendment, and the public trust doctrine. The court found that the plaintiffs established injury-in-fact and causation for Article III standing but that their claim failed for lack of redressability.

Summary by: Nicole Gasmen and Luke Hancox

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision

This decision comes from the Ninth Circuit of the United States Court of Appeals and is therefore binding on all courts in the Circuit and persuasive in other federal courts.

Key facts

The plaintiffs were twenty-one young citizens, an environmental organization, and a “representative of future generations.” [1165] They sued the President (later dismissed from the action), the United States, and federal agencies. The complaint accused the government of continuing to “permit, authorize, and subsidize” [1165] fossil fuel use, despite awareness of its risks, leading to various climate-change-related injuries. The plaintiffs’ claims varied from psychological harm and impairment of recreational interests to exacerbated medical conditions and property damage.

The complaint asserted violations of the plaintiffs’ constitutional rights:

“(1) the plaintiffs’ substantive rights under the Due Process Clause of the Fifth Amendment; (2) the plaintiffs’ rights under the Fifth Amendment to equal protection of the law; (3) the plaintiffs’ rights under the Ninth Amendment; and (4) the public trust doctrine.” [1165]

The plaintiffs sought declaratory relief and an injunction ordering the government to implement a plan to “phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide].” [1165]

The court noted that the District Court record and this appeal recognized climate change is occurring at a rapid pace. The court stated that rising carbon emissions would wreak havoc on the Earth’s climate if left unchecked, and that the federal government long understood these risks and affirmatively contributed to their worsening.

The government largely did not contest the factual basis for the plaintiffs’ claims, only that they lacked standing to pursue them.

Previous instances

The District Court denied the government’s motion to dismiss. That court stated that the plaintiffs had standing to pursue their claims that the government violated their constitutional rights, including a Fifth Amendment right to a “climate system capable of sustaining human life.” [1165] The District Court also found a separate viable “danger-creation due process claim” [1165] based on the government’s lack of regulation on third-party emissions and a public trust doctrine claim.

At summary judgment, the District Court dismissed the President as a defendant and dismissed the plaintiffs’ Equal Protection claim in part. That court also dismissed the plaintiffs’ Ninth Amendment claims. The government then sought this interlocutory appeal to resolve the standing issue and other grounds for dismissal.

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