Duarte Agostinho and others v Portugal and others

The claimants were 8 youths, filing a suit against the Australian Government to prevent it from approving the extension of the Whitehaven Vickery coal mine. They sought to establish that the Federal Minister would owe a duty of care towards persons under 18 to protect them from harm, an assertion that- if validated in the courts- would be highly significant in Australian climate litigation.

Background
In September 2020, 8 youths filed a putative class action in Australia’s Federal Court, seeking an injunction to prevent the Australian Government from approving an extension of the Whitehaven Vickery coal mine. They claimed to represent all persons under the age of 18, arguing that the Federal Minister had a common law duty of care for young people, and that an extension of a coal mine would involve burning coal which would exacerbate climate change and harm young people in the future.

In May 2021, the Federal Court of Australia established a new duty of care to avoid causing personal harm to children but declined to issue the sought injunction. In establishing such a duty, the court found that foreseeable harm from the project, if risks were to materialize, would be ‘catastrophic’, and that children should therefore be considered persons who would be so directly affected that the Minister ought to consider their interests when making the approval decision. The court issued a further declaration in July 2021 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’. The court declared that the duty applied to all Australian young people, because both the applicants and Australian young people had the ‘same interest’.

However, the Ministry of the Environment filed an appeal questioning the finding of the judge that the Minister owed a duty of care to avoid causing personal injury to children related to anthropogenic climate change, arguing that this was a matter of policy and subject to discretion better suited to the executive, and that no novel duty of care should be recognized .The appeal further questioned whether the approved project would cause a net increase In global greenhouse gas emissions, and the reversed onus of proof in approaching this issue.

The Minister- despite the decision of the Federal Court- granted approval in September 2021 for the proposed expansion of the mine. A hearing was held in October 2021, and the Full Federal Court of Australia gave its judgment in March 2022.

Relevant Law and Principles

 * Duty of Care

Status
The Full Federal Court of Australia unanimously overturned the decision of the primary judge to impose a duty of care on the Minister and allowed the Minister’s appeal, with each of the three justices having separate reasonings for this. Allsop CJ found that the duty would require consideration of questions of policy that would be ‘unsuitable for the judicial branch to resolve’, whilst Beach J found that there was insufficient ‘closeness’ between the Minister and the children, but left open the possibility of a future claim if any children suffered damage. Wheelahan J found that the authorizing Act could not establish a duty of care relationship between the Minister and the children, that establishing such a duty would be incoherent with the Minister’s functions under the Act, and that it was not foreseeable that the approval of the coal mine extension would cause personal injury to the children. However, the Court rejected the Minister’s argument that the primary judge had made findings based on climate change that were unfounded; the primary judge’s findings of fact about the risk of harm of climate change to children therefore remained [at 273-290]. The Full Federal Court noted finally that ‘the nature of the risks and dangers from global warming, including the possible catastrophe that may engulf the world and humanity’ were never in dispute.

Takeaways
The decision of the Full Federal Court to overturn the decision of the primary judge was a blow to future climate litigation cases which would have been greatly aided by the establishment of a duty of care in this context. Allsop CJ's comments on the justiciability of such subject matter (policy decisions of the executive) are damaging to future Australian litigants. However, whilst Allsop CJ’s reasoning appears to close the door on the establishment of such a duty, the dicta of Beach and Wheelahan JJ leaves it ajar in future cases. Beach J’s judgment allows the possibility of a future claim once the claimants could demonstrate damage; and Wheelahan J’s reasoning indicates that the result could be different if the challenged action would foreseeably cause personal injury to the claimants.

The case may further give encouragement to those pursuing climate litigation in the court’s forceful dismissal of the idea that facts on the impacts and extent of climate change were in dispute.

Links

 * Judgment of the Full Federal Court
 * Grantham Research Institute on Climate Change and the Environment
 * White and Case Comment on Sharma et al v Minister for the Environment