From now on the environment minister has a duty of care to Australian children
Right now, weighing up whether to allow a coal mine near Gunnedah, NSW, to be enlarged, environment minister Sussan Ley will be doing some very hard thinking.
Until late last month a decision approving the 25 per cent expansion of Whitehaven Coal’s Vickery mine looked certain, but a Federal Court judgment by Justice Mordecai Bromberg has swung the balance, perhaps decisively, the other way.
Bromberg’s decision is ground-breaking. For the first time, an Australian court has determined that the environment minister has a duty of care to Australian children. Effectively, Ley’s decision must show that today’s children will not suffer any physical harm as a result of the mine expansion going ahead.
Nothing is certain in corporate law where stakes are high, but any appeal of this judgment faces some high hurdles. At least two high-profile lawyers have said that Bromberg’s painstaking, tightly-argued 164-page decision, which included detailed analysis of scientific evidence and legal argument put to the court, makes an appeal a daunting prospect.
The case began during last year’s extended pandemic lockdown in Melbourne. Eight determined school students led by 16-year-old climate striker Anjali Sharma teamed up with Equity Generation Lawyers to see how the legal system might be used to force the government to take greenhouse warming seriously.
Justice Bromberg didn’t hold back: “To say that the children are vulnerable is to understate their predicament,” he said. Within their lifetimes and without effective mitigation, the Australia they now know “will be lost and the world as we know it gone as well. The physical environment will be harsher, far more extreme and devastatingly brutal…
“As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain.
“None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.”
The judge found that the release of 100 megatonnes of CO2 resulting from the mine extension “increases the risk of the children being exposed to harm” – especially so in the plausible scenario of a “tipping cascade” triggered by a 4C global temperature rise.
All this, he said, was “reasonably foreseeable”. Which means that the minister must take seriously the climate projections raised in evidence, and cannot set them aside as speculation or a future problem.
This is big. Ley will now have to consider the implications of the Blomberg judgment not just for the Vickery project but for every proposal that would lead to a rise in carbon emissions, both in Australia and globally. The Morrison government’s refusal to move swiftly and decisively to ditch fossil-fuel energy is costing it and the rest of us dearly.
Climate litigation is a growing phenomenon everywhere. The UK’s Grantham Research Institute reports that over the past 12 months climate cases were filed on all inhabited continents, including (besides Australia) Ireland, the Netherlands, Canada, the US, Peru and South Korea. A case currently before the UN Committee on the Rights of the Child reflects an increasing focus, especially in Europe, on human rights.
The Sharma case has attracted international attention, and other leaders will be aware of its implications, but none of that seems to have affected PM Scott Morrison, who came away from the G7 meeting in the UK steadfastly holding to his assertion that we are a climate leader.
None of this came from nowhere. 2020, with its massive wildfires, vanishing glaciers and record-breaking floods, ties with 2016 as Earth’s hottest year in the 140-year temperature record. Scientists’ building sense of unease has turned to alarm over the continuing failure of political elites to grasp the enormity of the crisis.
But children around the world do get it, and they have discovered the potential of court decisions to change governments’ direction. Those elites, notably in Australia, have a habit of ignoring courts and treating children and the environment as political props, as you do when you think you rule the world. Actually, it’s the other way round.
• THE AWARD of an Officer in the Order of Australia to Hobart-based scientist Steve Rintoul, announced yesterday, recognises not just his outstanding talent and achievement as a physical oceanographer, but also the vital role of climate science to us and our communities.