Is Climate Change Justiciable? Politics and Policy in Minister for the Environment v Sharma
Zoe Bush
29.06.2022
On 15 March 2022, the Full Court of the Federal Court (Full Court) unanimously reversed Bromberg J’s finding that the Commonwealth Minister for the Environment (Minister) owed all Australian children a duty of care to avoid causing personal injury or death arising from the emission of greenhouse gases when exercising her powers to approve a coal mine extension under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
The claimants have since confirmed that they will not seek special leave to appeal to the High Court. As such, the decision marks the end of a legal dispute that attracted international attention because the first instance decision marked the first time in the world an executive member of government had been held to owe a duty of care to avoid harms associated with climate change.
The Full Court’s judgment considered the relevance of political and policy factors in determining whether or not to recognise a novel duty of care. These issues are not unique to Australia; climate cases in a range of jurisdictions have found themselves entangled in the so-called political thicket. This dimension of the case, and its implications for future climate litigation in Australia, will be the focus of this post.
Background
In February 2016, Whitehaven Coal Limited applied to the Minister to extend its Vickery Coal Project (Extension Project) in accordance with s 68 of the EPBC Act. If approved, the Extension Project would increase total coal extraction from the mine by 33 million tonnes (Mt). Once combusted, the additional coal would produce about 100 Mt of CO2.
The Minister’s delegate determined the Extension Project constituted a ‘controlled action’ under s 75(1) of the EPBC Act, and so required approval by the Minister under ss 130(1) and 133 of the EPBC Act.
The Minister had not yet made her decision when a Sister of the Brigidine Order of Victoria, as litigation representative for eight Australian children, applied for a declaration that the Minister owed the children and other Australian children a duty of care when exercising her powers under ss 130 and 133 of the EPBC Act, and an injunction to restrain an apprehended breach of that duty.
On 27 May 2021, the primary Judge held the Minister owed all Australian children a duty of care to avoid causing personal injury or death arising from the emission of greenhouse gases when exercising her approval powers under the EPBC Act: Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560. However, his Honour dismissed the application for an injunction on the basis it was preferable that the grant of any injunctive relief that may be appropriate await the Minister making a decision in relation to the Extension Project. Ellen Rock’s analysis of the first instance decision can be accessed here.
The Minister then filed a notice appealing the decision, and approved the Extension Project.
Summary of appeal decision
Although unanimous in allowing the appeal, each member of the Full Court delivered a separate judgment.
Chief Justice Allsop was primarily concerned with the appropriateness of tort law addressing the issues raised by climate change, drawing on recent comments made by the New Zealand Court of Appeal in Smith v Fonterra Co‑operative Group Limited [2021] NZCA 552 (Fonterra). While his Honour considered the risk of harm resulting from the approval of the Extension Project was reasonably foreseeable ([300]-[333]), he concluded that the relationship between Australian children and the Minister was that of ‘the governing with the governed’, and not one giving rise to a legal duty of care ([266]).
Justice Wheelahan reached similar conclusions, but considered the risk of harm was not reasonably foreseeable ([757]).
Justice Beach was the most inclined toward the recognition of a duty. His Honour considered the risk of harm was reasonably foreseeable ([414]-[441]), and that the salient features of control and vulnerability were present ([634]-[677]). However, in addition to his concerns regarding indeterminacy ([742]-[747]), his Honour considered the relationship between the Minister and Australian children was not sufficiently close and direct so as to justify the imposition of a duty ([678]-[701]).
The remainder of this post focuses on the public law issues in the case, particularly in relation to the justiciability of climate-related claims. ‘Justiciability’ is used not in its strict legal sense, but to describe broader concerns with judicial engagement with political and policy issues. If you are interested in other aspects of the Full Court’s decision, I explore these more fulsomely in ‘Case note: Minister for the Environment v Sharma [2022] FCAFC 35’ (2022) 37(1) Australian Environment Review (forthcoming). I commend Laura Schuijers’ article for an analysis of the complex issues of causation in the case: ‘Minister for the Environment v Sharma: Death by a Thousand Coal Mines’ (2022) 37(1) Australian Environment Review (forthcoming).
Climate change and ‘core’ policy-making
For both Allsop CJ and Wheelahan J, the inappropriateness of the judiciary resolving the ‘multi-disciplinary’ considerations that underpin climate change policy was central to the conclusion that no duty of care was owed ([246] and [868], respectively).
Justice Wheelahan’s conclusion was primarily based on his construction of the statutory text and context from which the Minister derived her approval power. His Honour considered that the issues raised by the EPBC Act are ‘uniquely suited to elected representatives and executive government responsible for law-making and policy-making’, and are ‘inappropriate for judicial resolution’ ([868]).
Chief Justice Allsop’s reasoning was of seemingly wider application. Similarly to Wheelahan J, his Honour had regard to the text and context of the EPBC Act in concluding that, if the relationship between Australian children and the Minister when exercising her powers under ss 130 and 133 called forth a duty, it was a political duty, not a legal duty of care ([266]). However, his Honour considered that the recognition of a duty would also be inconsistent with the ‘structure of responsible and representative parliamentary democracy’ more generally ([3]-[5], [8]-[17], [246]-[266]). In his view, the issues in dispute involved ‘core, indeed, high policy‑making’ ([246]), and ‘it is not the function of the Judicial branch to rule upon any lack of adequacy or any lack of wisdom of government policy by reference to the law of torts’ ([248]).
Indeed, his Honour’s reasoning does not appear to be confined to circumstances where the alleged tortfeasor is an executive member of government or a public authority. His Honour adopted concerns recently expressed by the New Zealand Court of Appeal in Fonterra, a case dealing with a posited duty owed by corporate entities in relation to climate-related harms, that ‘Courts are … ill-equipped to address the issues that the claim raises’, which call for ‘a level of institutional expertise, democratic participation and democratic accountability that cannot be achieved through a court process’ ([255], quoting Fonterra at [26], [116]). His Honour considered that these concerns were not diminished by the fact the Minister was an executive member of government rather than a private party, as in Fonterra ([257]). ‘[T]he issue is the lack of suitability of the assessment of climate change policy for judicial determination in private suits in the law of tort’ ([256]).
In contrast, Beach J held that policy questions did not prevent the existence of a duty of care ([633]). His Honour considered that where the Minister may create a danger by exercising her statutory power to approve a project, ‘policy is no answer to denying the duty unless the Act itself makes such policy questions so fundamental to the exercise of statutory power that such a conclusion is compelling’ ([633]). This was not such a case. In those circumstances, his Honour concluded that any policy questions could adequately be taken into account at the breach stage of analysis ([535], [633]). Justice Wheelahan expressly disagreed with this conclusion ([868]).
A global tapestry of justiciability
The Full Court’s decision is the latest thread in an emerging tapestry of global jurisprudence concerning the justiciability of climate-related claims.
On the one hand, issues of justiciability have so far been determinative in denying climate-related claims in jurisdictions such as the United States (US) and New Zealand. As noted above, Allsop CJ’s judgment is most analogous to the New Zealand Court of Appeal’s reasoning in Fonterra. In that case, the appellant claimed that the alleged harm caused by several corporate entities’ greenhouse gas emissions constituted public nuisance, negligence and breached an inchoate duty to cease contributing to climate change. The principal relief sought was an injunction requiring each respondent to achieve net zero emissions from its activities by 2030. The primary Judge struck out the nuisance and negligence claims, while declining to strike out the inchoate duty. The Court of Appeal upheld the first instance decision in relation to the nuisance and negligence claims, but allowed a cross-appeal against the refusal to strike out the inchoate duty claim. In addition to issues regarding causation, the Court was primarily concerned that, ‘[c]limate change provides a striking example of a polycentric issue that is not amenable to judicial resolution… Rather, this pressing issue calls for a sophisticated regulatory response at a national level, supported by international co-ordination’ ([26], [28]). On 31 March 2022, the claimant was granted leave to appeal to the New Zealand Supreme Court.
In the US, the justiciability of climate change has most recently arisen in the context of claims under the US Constitution. In Juliana v US 947 F.3d 1159 (9th Cir. 2020) (Juliana), a group of young people claimed the US Federal Government had infringed their Fifth Amendment due process right to a ‘climate system capable of sustaining human life’. The children sought injunctive relief requiring the Government to implement a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric CO2’.
The majority of the Ninth Circuit Court of Appeal dismissed the children’s claim on the basis that, amongst other things, their injuries were not redressable by a court established under Article III of the US Constitution. In particular, the majority ‘reluctantly’ concluded that the injunctive relief sought was beyond their constitutional power (at 11). They considered the children’s case ‘must be made to the political branches or the electorate at large’ (at 32). ‘That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes’ (at 32).
Interestingly, the majority refuted the dissenting Judge’s characterisation of their reasoning as an application of the American ‘political question’ doctrine (at 31, footnote 9). Similarly, Allsop CJ was at pains to reject the Sharma respondents’ contention that denying the existence of a duty of care because it raised issues of core policy-making would introduce the political question doctrine, which has not been accepted in Australia ([17], [246]-[266]): Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 82.
In contrast, European courts routinely navigate issues of justiciability when considering climate-related claims. In December 2019, the Dutch Supreme Court affirmed lower courts’ decisions that the European Convention of Human Rights required the Dutch government to take steps to reduce greenhouse gas emissions consistent with limiting warming to an average of 1.5℃ above pre-industrial levels, and ordered it to develop a revised emissions reduction plan: State of the Netherlands v Urgenda Foundation (ECLI:NL:HR:2019:2006). In doing so, the Court rejected the government’s argument that the lower courts’ decisions were impermissible because of the political considerations involved in the reduction of greenhouse gas emissions ([8.1]-[8.3.5]).
The Dutch Supreme Court’s reasoning in this regard illuminates the potential reasons for this distinction. The Court notes that the reduction of greenhouse gas emissions is the constitutional domain of the parliament and the executive, and that they have significant discretion in this regard. However, they considered it is for the courts to decide whether, in availing themselves of this discretion, the parliament and the executive have remained within the limits of the law. Crucially, this includes the rights contained in the European Convention for Human Rights ([8.3.1]-[8.3.3]).
A survey of comparable jurisprudence suggests it is usually in jurisdictions with legally enforceable social and economic rights that issues of justiciability are more readily overcome. See, for example, the German Constitutional Court’s decision in Neubauer et al v Germany (2021) and the Administrative Court of Paris’ decision in Notre Affaire à Tous et al v France (2021). Presumably, this is attributable to constitutional cultures more accustomed to judicial arbitration of matters of policy.
Chief Justice Allsop and Wheelahan J’s concerns regarding justiciability are perhaps, then, not surprising. The orthodox view is that Australia is now the only major constitutional democracy in the world without a justiciable, national charter of rights (as compared to Rosalind Dixon’s suggestion that the Commonwealth Constitution contains an ‘extremely narrow’ bill of rights). The absence of such a charter is at least partly attributable to the Constitution’s framers considering it unnecessary or inappropriate given the strong tradition of parliamentary rights protection in the British Commonwealth.
Chief Justice Allsop’s reasoning is particularly reminiscent of those concerns. Sharma evidently did not involve the adjudication of human rights, or indeed even ask that the Court monitor the implementation of a remedial plan comparable to that sought in Juliana. The perceived political context of the Minister’s approval power under the EPBC Act and, indeed, climate change more generally, was nonetheless sufficient for his Honour to consider that the recognition of the posited duty would undermine the ‘structure of responsible and representative parliamentary democracy’ ([3]-[5]). This reasoning is consistent with a constitutional culture premised on parliamentary sovereignty and a more confined role for the judicial branch.
The end of climate-related tort claims in Australia?
As noted above, the Sharma respondents have since confirmed that they will not seek special leave to appeal to the High Court. That means the decision may prove a challenging precedent for the representative proceeding brought by two Torres Strait Islanders against the Commonwealth government, claiming that the government owes them a duty of care to reduce Australia’s greenhouse gas emissions: Pabai Pabai and Guy Paul Kabai v Commonwealth of Australia (VID622/2021) (Pabai and Kabai).
Pabai and Kabai is distinguishable from the claim in Sharma in part due to the presence of alleged harm. Justice Beach’s reasoning would not foreclose the possibility of a duty of care where there is a closer nexus between the risk and the harm. However, Allsop CJ’s reasoning is sufficiently far‑reaching to seemingly preclude the recognition of a duty of care for climate-related harms, whether in relation to public or private entities. Although Wheelahan J’s reasons were more directly linked to the EPBC Act, similar concerns about the political nature of the issues in the proceeding may arise in Pabai and Kabai. Further, their Honours’ obiter remarks suggest it will be difficult to establish causation in the absence of a change of law from the High Court.
The key distinguishing feature that may favour the claimants in Pabai and Kabai is the nature of relief sought. The claimants in Juliana, Fonterra and Sharma all sought injunctive relief that would interfere with the actions of third parties, whether they be private or public actors. In each decision, the political nature of such a remedy loomed large in concerns regarding justiciability. In contrast, the remedy sought by the claimants in Pabai and Kabai is confined to loss and damage (Statement of Claim, [86]-[89]). The adjudication of loss occasioned by property damage and even cultural rights may be sufficiently familiar terrain for the Australian judiciary, even if arising in the novel context of climate change.
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Zoe Bush is a senior solicitor in the Environmental Defenders Office’s Safe Climate (Corporate) team, and an Adjunct Lecturer at the University of Western Australia Law School.
Suggested citation: Zoe Bush, ‘Is Climate Change Justiciable? Politics and Policy in Minister for the Environment v Sharma’ on AUSPUBLAW (29 June 2022) <https://www.auspublaw.org/blog/2022/06/is-climate-change-justiciable-politics-and-policy-in-minister-for-the-environment-v-sharma>