CASE NOTE | Minister for the Environment v Sharma  FCAFC 35
On 8 September 2020, Anj Sharma and seven Australian teenagers launched a class action against the Minister for the Environment (‘the Minister’) to prevent the approval of an extension proposal for the Whitehaven Vickery coal mine in New South Wales. The applicants claimed that the Minister had a personal duty of care to protect future generations from climate change. This alleged duty provided that the Minister was to take reasonable care in the execution of the discretionary powers conferred to her by sections 130 and 133 of the Environmental Protection and Biodiversity Conservation Act (‘EPBC Act’) – to avoid causing personal injury or death to Children arising from emissions of carbon dioxide (CO2). In light of the global concerns surrounding climate change, an objection of this sort was unsurprising.
The primary judgment of Bromberg J represented a ‘landmark’ decision in Australian climate change litigation at the time. His Honour recognised a novel duty of care – that the Minister owed a common law duty “concerned with the avoidance of personal injury to, and death of, the Children”.He expressed this duty as “consonant with the purpose of the EPBC Act” and “a relevant consideration which must be taken into account” since considerations regarding the avoidance of killing or injuring persons almost always cuts across the exercise of such a broad and discretionary power. Further to this, his Honour found that “human safety is a distinct, implied, mandatory consideration” in the EPBC Act. Following this decision, in September of 2021, the Minister lodged an appeal.
The Minister’s appeal comprised of arguments relating to the concepts outlined below:
1. Policy: The claim, that the Minister’s core policy decisions involving the grant were made negligently, is unsuited to judicial resolution.
2. Incoherence: The duty of care put forward by the primary judge is not coherent with the statutory scheme of the EPBC Act, and thus his Honour erred in finding that human safety is a mandatory consideration to be taken into account by the Minister in making her decision. Furthermore, his Honour erred in considering the statutory purpose as a whole as opposed to focusing on the nature and function of the approval power specifically.
3. Lack of legal foreseeability: The Primary Judge erred in concluding that the injury to the respondents was reasonably foreseeable by wrongly focusing on the increased risk of harm by granting the approval, not the material cause of the harm; the latter approach being the accepted one in Australia.
4. Lack of Relevant Control: The primary judge erred in taking a multi factorial salient features approach to recognizing a duty of care in novel circumstances.
5. Lack of Relevant Vulnerability: The primary judge wrongly decided the respondents were vulnerable as he did not refer to ‘vulnerability’ in the way authorities determine this concept.
6. Indeterminacy: The primary judge erred in failing to find that the Minister’s liability is indeterminate – not only was the class of potential claimants vast but the variety of risks was highly variable.
7. Reliance on Factual Errors: Five errors concerning the statistics of an increase in surface temperature as a result of approving the extension proposal were brought forward.
The issue before the Full Federal Court of Australia was whether the Minister for the Environment, in exercising her powers under sections 130 and 133 of the EPBC Act, owed the respondents and those they represented a common law duty to take reasonable care to avoid causing personal injury or death arising from emissions of CO2 into the Earth’s atmosphere.
The Full Federal Court of Australia consisting of Chief Justice Allsop, and Justices Beach and Wheelahan, found in favour of the Minister, overturning the primary judge’s decision. Whilst unanimous in their judgement, it is important to note the different approaches to their reasoning.
In his judgment, Allsop CJ relied heavily upon the separation of powers doctrine. He emphatically expressed that the duty to grant or not grant approvals imposed upon the Minister “concerns a matter of … core policy”, hence it is “not the function of the judicial branch to rule upon any lack of adequacy or lack of wisdom of government policy by reference to the law of torts”. Reason being, it would undermine the separation of powers doctrine embedded in the Australian Constitution, which plays a crucial role in our governmental and societal structures.
He further highlighted the incoherence between the posited duty said to exist by the primary judge and the text and structure of the EPBC Act. Examination of the Act reveals that its purpose “is not to direct a proper response by the Commonwealth to the risks of climate change”. Therefore, imposing upon the Minister such a duty would be inconsistent with the Act’s text and structure.
Additionally, his Honour put forward that the Minister did have almost exclusive control over any risk by granting the approval of the coalmine extension, but given the nature of the harm is “worldwide” and a “global climate catastrophe”, existence of control should not be found. The minister’s control is further diminished by the “countless others” who may mitigate the risk around the world.
Overall, Chief Justice Allsop emphasised that “the reliance on an elected government to develop and implement wise policy in the interests of Australians is the foundation of responsible democratic government not the foundation of the law of torts”.
The important aspects of Beach J’s decision are manifested in his reasoning as to the relationship between the Minister’s exercise of power and the risk of harm, and the indeterminacy of liability.
His Honour highlights the lack of physical, temporal, or relational closeness between the Minister in exercising her powers to grant approval, and the effects of this on the respondents by reason of such exercise. The Act further says very little about the emissions and their consequences, and does not recognise the respondents as a protected class or species, making them ‘strangers’. As a result, there can be no finding that the claimant class is so closely and directly affected by any act of the Minister with respect to the exercise of statutory power under section 130 and 133 of the EPBC Act. His Honour labelled this lack of sufficient closeness/directness as the “principal basis” as to why the posited duty of care in the primary judgement did not exist.
Had such directness been found, indeterminacy would have provided no issues. However, as expressed above, the lack of directness necessitated considering the victim and type of damage. Here, the class of likely vulnerable victims being simply unascertainable today “forecloses the posited duty of care”.
Three main reasons existed for Justice Wheelahan’s finding in favour of the Minister. The first put forward was that no relationship existed between the Minister and the respondents that supported a recognition of a duty of care. His line of reasoning, similar to Chief Justice Allsop, initially considered the EPBC Act as the source of the alleged relationship between the Minister and the respondents. Assuming the Act established the relationship, it would then follow that the onus would be placed on the claimant to show what ‘reasonable conduct’ would have required in the circumstances. These considerations may blur the lines between the role of the court and the executive government as they would encompass international relations and the interests of the public.
Moreover, his Honour noted the concerns he had as to indeterminacy as there would be no reason why “by the application of accepted legal principles … the duty would not also extend to all persons born in Australia after the commencement of the proceeding”and further “... to any personal injury, however minor, and mental injury however caused”. His Honour spoke of the lack of control the Minister had over the risk of harm the respondents alleged stating that the “protection of the public from personal injury caused by the effects of climate change, were not roles that the Commonwealth Parliament conferred on the Minister under the EPBC Act”.The Act’s lack of reference to climate change further indicated this.
Another important aspect in Wheelahan J’s judgment was his assertion that it is not feasible to establish an appropriate standard of care as doing so would create incoherence between the Minister’s duty under the EPBC Act and the discharge of her functions. The imperative function of this separation was reaffirmed when his Honour emphasised that the issues the Minister considers when exercising her powers under the EPBC Act “inevitably slide into political considerations” and this enounces the conclusion which was reached by Chief Justice Gleeson in Graham Barclay Oysters, that such issues are “inappropriate for judicial resolution”.  Subjecting such a ministerial decision to a tortious standard was arguably exposing it to a merits review, one outside the scope of the judicial branch.
The final aspect of Wheelahan J’s judgment which is of note is that causation as understood for the purposes of the common law tort of negligence did not appear to exist. In undertaking an undemanding test of reasonable foreseeability based on precedence, the risk assessed by the primary judge which included the increased risk of harm or contribution to increasing CO2 levels in combination with other sources, does not give rise to liability in negligence because “Australian CL principles of causation would not recognise Minister's decision to approve the Extension Project as a cause of injury”.
In the global context of recognising the need to protect the environment and future generations from the effects of climate change, the Sharma decision highlights that such circumstances do not override the need to apply and uphold the “supreme law” of Australia. The decision has closed the door for now on future cases in the realm of protecting the environment from climate change and may present an added barrier for legal practitioners in following climate change litigation.
Although applying for special leave to challenge the High Court to overturn the Full Court’s unanimous decision may prove difficult for the respondents, this landmark decision has nevertheless highlighted the need for additional policies to be put in place to better accommodate for the continuing threat of climate change, which is still a step forward in the fight for climate justice.
This case note was prepared with thanks to Daiana Yoon and Kendra Ciccotti.
You can also listen to this case note on my podcast "Veritas" available through Google Podcasts, Spotify, Breaker, PocketCasts, RadioPublic and AnchorFM: https://anchor.fm/kmcintyre
For the full decision: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2022/2022fcafc0035
 Environmental Protection and Biodiversity Act 1999 (Cth).  Minister for the Environment v Sharma  FCAFC 35, 66 .  Ibid.  Ibid, 2 .  Ibid, 74 .  Ibid, 74 .  Ibid, 75 .  Ibid, 75 .  Ibid, 75 .  Ibid, 76 .  Ibid, 77 .  Ibid, 94 .  Ibid, 94 .  Ibid, 100 .  Ibid, 117 .  Ibid, 117 .  Ibid, 118-9 .  Ibid, 213 .  Ibid, 218 .  Ibid, 253 .  Ibid, 251 .  Graham Barclay Oysters Pty Ltd v Ryan  HCA 54.  Minister for the Environment v Sharma  FCAFC 35, 263 .  Ibid, 269 .