On September 8, 2020, eight young people filed a putative class action in Australia's Federal Court to block a coal project. The lawsuit sought an injunction to stop the Australian Government from approving an extension of the Whitehaven Vickery coal mine. The plaintiffs claimed to represent all people under 18, and argued that Federal Minister Sussan Ley has a common law duty of care for young people. They further asserted that digging up and burning coal will exacerbate climate change and harm young people in the future. Plaintiffs sought an injunction to prevent the Minister from approving the project under the Environment Protection and Biodiversity Conservation Act (EPBC).
On May 27, 2021, the Federal Court of Australia established a new duty of care to avoid causing personal harm to children but declined to issue an injunction to force the Minister to block the coal mine extension. The Court concluded that "the applicants have established that the Minister has a duty to take reasonable care to avoid causing personal injury to the Children when deciding, under s 130 and s 133 of the EPBC Act, to approve or not approve the Extension Project." In establishing the duty of care, the Court found that the foreseeable harm from the project, if the risks were to come true, would be "catastrophic", and therefore children should be considered persons who would be so directly affected that the Minister ought to consider their interests when making the approval decision. In declining to issue an injunction, the Court found that the plaintiffs had not established that it is probable that the Minister would breach the duty of care in making the approval decision, and had not established that they will have no further opportunity to apply for an injunction. In its May 27, 2021 judgment, the Court delayed issuing a declaration about the duty of care owed by the minister, and raised a number of questions to the parties about the scope of the duty.
On July 8, 2021, the Court issued a declaration that "The [Minister] has a duty to take reasonable care . . . to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere." In issuing the declaration, the Court rejected arguments by the Minister to limit the declaration to only the applicants. Instead, the Court declared the duty applied to all Australian young people because both the applicants and Australian young people had the "same interest." The Court ordered the Minister to pay costs.
On September 13, 2021, the Ministry of Environment filled an appeal questioning the judge’s finding that the Minister owes a duty of care to avoid causing personal injury to children related to anthropogenic climate change. The appeal is based on the separation of powers and the argument that the Minister’s decision is a matter of policy and subject to discretion. The regulation of GHG emissions is better suited for the Executive, and no novel duty of care should be recognized. The appeal also questioned whether the approved project would cause a net increase in global GHG emissions and the reversed onus of proof in approaching this issue.
Despite the Federal Court’s decision, on 15 September 2021 the Minister granted approval for the proposed mine expansion. The appeal lies to the Full Federal Court, where three judges will hear the appeal. The appeal is listed for hearing on 18-20 October 2021.
|09/08/2020||Complaint||Download||No summary available.|
|10/29/2020||Reply||Download||Minister for the Environment's Concise Statement in Response|
|12/09/2020||Not Available||Download||Independent Expert Report by Dr. Karl Mallon.|
|05/27/2021||Judgment||Download||Judgment establishing duty of care but rejecting injunction|
|07/08/2021||Judgment||Download||Judgment issuing declaration|
|09/13/2021||Appeal||Download||Appellant's outline of the submissions|
|09/13/2021||Appeal||Download||Notice of appeal|
|09/24/2021||Appeal||Download||Respondent’s Outline of Submissions|
|09/15/2021||Not Available||Download||EPBC Act approval of mine and conditions,|
|09/16/2021||Not Available||Download||Minister’s statement of reasons for approval|
|10/04/2021||Appeal||Appellant’s Submissions in Reply|