July 2021

The Nation Reviewed

Planetary defence

By Kieran Pender
Illustration by Jeff Fisher
A court ruling that the environment minister owes children a duty of care to prevent climate harm has far-reaching implications

One Sunday in August, 93 years ago, May Donoghue was enjoying an ice-cream float at a cafe in Paisley, Scotland. But when her companion poured more ginger beer into the float, a decomposed snail fell from the bottle. Donoghue fell ill. That incident would become immortalised in legal history – Donoghue sued the ginger beer manufacturer, David Stevenson, and the law of negligence was born. In an iconic judgement from Britain’s House of Lords, Brisbane-born judge Lord James Atkin declared: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour.”

In late May this year, as Melbourne was heading into another lockdown, Donoghue v. Stevenson provided the backdrop to the most significant climate case yet decided in Australia. From a courtroom on William Street, grey-haired Federal Court justice Mordecai “Mordy” Bromberg delivered a brief summary of his 161-page, 70,000-word decision in Sharma v. Minister for the Environment. His ruling sought to answer an increasingly pressing question: what relevance does the Donoghue snail have in the climate change era?

With his glasses balanced on the tip of his nose, Bromberg noted the unchallenged climate science that the plaintiffs, eight Australian teenagers and their litigation guardian, Sister Brigid Arthur, had put before him. They had done so in an attempt to prevent the federal environment minister, Sussan Ley, from approving an extension of the Vickery coalmine, in north-west New South Wales between Gunnedah and Narrabri. An expanded Vickery mine would ultimately put an additional 100 million tonnes of carbon dioxide into the atmosphere.

Speaking to the handful of masked lawyers and barristers in front of him, and to the world via a livestream, Bromberg made a number of uncontroversial observations about the law of negligence. He paused momentarily, took a breath, and then in one sentence fundamentally reshaped Australia’s climate law paradigm. “Having weighed and balanced those considerations, the court is satisfied that a duty of care should be recognised,” Bromberg said solemnly.

The judge held that the environment minister has a duty of care to Australia’s children not to exacerbate the impact of the climate crisis – something Bromberg said Ley would have to consider when assessing the mine extension. “That conclusion is confirmed when re-examined through the lens of the neighbourhood principle,” Bromberg observed in his written judgement. The snail lives on.

“It was immediately obvious that this was groundbreaking,” says Dr Chris McGrath, a Brisbane barrister who has masterminded much litigation resisting new coalmines over the past decade (but was not involved in Sharma). “This is Mabo for the climate. I was shocked and excited by it.”

He is not the only one. “There is no doubt that the decision made in the Sharma case is a watershed moment in climate change litigation,” says Elaine Johnson, a climate litigator with the Environmental Defenders Office. “This is a case that was brought in the right place, at the right time, by the right plaintiffs.” Professor Jacqueline Peel, an eminent climate law expert at Melbourne Law School, adds that Sharma “opens up a new pathway for challenging government decisions that could contribute to greenhouse gas pollution”.

The ingenuity at the heart of Sharma is that, for all its novelty, it proceeds from firmly established legal principle. “There are ordinary processes by which courts advance the common law to protect vulnerable people,” says the plaintiffs’ lawyer, David Barnden. “That’s precisely what happened here.” (Not that the case’s orthodoxy was recognised by conservative commentators – one headline in The Australian screeched: “‘Duty of care’ coal ruling undermines democracy”.)

Since Atkin and his fellow judges established the neighbour principle, the law of negligence has ­pervaded almost every aspect of our lives. If you are injured at work, on the road or at a shopping centre, legal remedies are typically found in the law of negligence – more commonly home to no-win, no-fee ­personal injury lawyers than public interest–minded environmentalists.

But for the past two and a half decades, Australia’s small band of environmental lawyers have explored every conceivable area of law, seeking ways to prevent climate harm and encourage climate action. They started in planning law, attempting to block new mines and coal-fired power stations, before branching out to corporate law, human rights law and now negligence.

Facing hostile governments, many found that success in court was short-lived. “Whenever you sue a government, even if you win, they can get special legislation passed to nullify the outcome,” McGrath says. “I had one case where we won at 10am in the Court of Appeal, and by 2pm the state government had announced it was going to change the legislation.”

Which makes Sharma all the more significant. By finding that the minister owes Australia’s children a duty of care to prevent climate harm, an obligation emanating from the common law, Bromberg gave the federal government little room to move. Even if Ley amends the environmental legislation governing her approval powers, she still owes the children a duty of care. Nor can the federal government simply rewrite the law of negligence – it lacks the constitutional authority.

The Morrison government’s only legislative option would be to pass a law specifically immunising itself from lawsuits for climate harm. “They would have to be saying there is no duty of care to protect future generations,” says McGrath. “I don’t think that’s an attractive thing to try and legislate their way out of.”

Instead, the minister will almost certainly appeal. The case will make its way to a full bench of the Federal Court, probably later this year. Whoever loses the appeal will then head to the High Court in Canberra.

Bromberg’s judgement is meticulous, full of climate science and rigorous analysis of the evolution of negligence. The judge’s careful factual findings, McGrath suggests, provide a “tremendous basis to defend the appeal”. In one eye-catching paragraph, the judge does not pull his punches:

It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. As Australian adults know their country, Australia 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 when angry. 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 intergenerational injustice ever inflicted by one ­generation of humans upon the next.

An appeal is not the only issue outstanding in Sharma. Some newspapers initially described the verdict as a loss for the teenage plaintiffs, because Bromberg refused to issue an injunction to stop the coalmine extension. Mine owners Whitehaven even claimed victory in a statement to the stock exchange: “Our consistent position has been that this legal claim was without merit.”

But a close reading of Bromberg’s reasons shows that on the question of an injunction, he reached the position of “not yet” rather than “not ever”. The ­minister is due to determine Whitehaven’s extension application by mid July; if Ley approves it, despite Sharma, Bromberg has left open the possibility that he might at that point injunct the minister. “If there is a view that possible approval and potentially any conditions that travel with that approval do breach the duty of care that has been outlined, then we might be back in court,” Barnden says.

If Sharma holds on appeal, it will be the basis for a new wave of climate litigation. “We are investigating a number of claims,” says Barnden, although he is coy when pressed on specifics. Johnson, who is currently acting for bushfire survivors in a case against the NSW environmental regulator, says that she has “a team of lawyers busily analysing this decision from every angle”. She adds: “This gives us hope that the tide is turning. There’ll be a lot more to come.”

Last year, McGrath published a paper in the Environmental and Planning Law Journal arguing that customary landowners in Papua New Guinea had reasonable grounds to sue the AGL subsidiary that operates the Loy Yang A coal-fired power station, the largest single source of greenhouse gas emissions in Australia. “There is currently a lot of unrealised liability for climate change,” the barrister says. “We have a ­situation where companies and governments know the harm being caused, and they are choosing to do it anyway. The liability is staring us in the face.” Such arguments have been supercharged by Sharma.

Watching all of this unfold has been the plaintiff’s litigation guardian, Sister Arthur of the Brigidine Order. Because the plaintiffs are not yet adults, they could not bring the case in their own capacity, so Arthur stepped in. “It’s pretty exciting really,” she says. “It’s made an impact globally.”

Arthur, 86, has lost count of how many court cases she has served in since co-founding the Brigidine Asylum Seekers Project in 2001 (“I honestly don’t know how many”). While most of her cases are immigration-related, Arthur was pleased to be involved in Sharma. “I feel pretty strongly about what is happening to our planet. It is systematically dying due to a lack of action from our governments.”

Being involved in such a speculative case is not without risks. It is possible that Arthur could be ordered to pay the federal government’s considerable legal costs, particularly if the teenage plaintiffs lose on appeal. The nun is unfazed. “I have very little money that belongs to me,” she says. “They could take that, I guess.”

In the years that followed Donoghue, a rumour emerged that there was never actually a snail in the bottle in that Paisley cafe. After the House of Lords decided the legal point, the dispute was sent back to a lower court to be tried – but the ginger beer brewer died and the case was settled without a finding of fact.

A mythical snail could well be responsible for the modern law of negligence and, almost a century later, the landmark decision in Sharma. But there is no scientific doubt that climate change is real. Absent concerted climate action, harm is inevitable. “We will have to wait and see what happens next in the litigation, but what doesn’t change is the science,” says Johnson. “There is a real risk to these children – that exists in fact, regardless of what happens with the decision in law.” Barnden, facing the prospect of having to defend this revolutionary judgement on appeal, is equally clear-eyed. “This is what it’s all about,” he says. “Trying to avoid the catastrophic harm the scientists can see coming.”

Kieran Pender

Kieran Pender is a writer and lawyer. He is an honorary lecturer at the Australian National University College of Law.

 

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