Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment
[2021] FCA 560
•27 May 2021
FEDERAL COURT OF AUSTRALIA
Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560
File number: VID 607 of 2020 Judgment of: BROMBERG J Date of judgment: 27 May 2021 Catchwords: NEGLIGENCE – representative proceeding seeking a declaration that a duty of care be recognised and an injunction be granted restraining its breach – Environment Protection and Biodiversity Conservation Act 1999 (Cth) – novel duty of care – whether the Minister for the Environment owes Australian children a duty of care when approving under s 130 and s 133 of the EPBC Act the extraction of coal from a coal mine – risk of injury from climate change – claim that CO2 emissions from coal to be extracted will contribute to increased global surface temperatures leading to extreme weather events and consequent exposure of Australian children to the increased risk of personal injury, property damage and economic loss – discussion of applicable legal principles for ascertaining whether a novel duty of care exists – salient features approach adopted – whether feared harm reasonably foreseeable – whether the Minister has control, responsibility and knowledge in relation to foreseeable harm – extent of children’s vulnerability to feared harm – whether recognised relationships between Minister and children exist including by reference to parens patriae doctrine – discussion of coherence in the law – whether imposition of liability in negligence is incoherent with statutory discretion provided to Minister under s 130 and s 133 of the EPBC Act to approve or not approve extension of coal mine – whether incoherence with principles of administrative law – whether potential liability indeterminate – whether other policy considerations tend against a duty of care being recognised – duty of care recognised but only in relation to the avoidance of personal injury to the children
INJUNCTION – principles for grant of quia timet injunction discussed – whether reasonable apprehension of breach of duty of care established – whether extent of restraint justified – injunction refused
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Judiciary Act 1903 (Cth)
Civil Laws (Wrongs) Act 2002 (ACT)
Civil Liability Act 1936 (SA)
Civil Liability Act 2002 (NSW)
Civil Liability Act 2002 (Tas)
Civil Liability Act 2002 (WA)
Civil Liability Act 2003 (Qld)
Environmental Planning and Assessment Act 1979 (NSW)
Wrongs Act 1958 (Vic)
Federal Court Rules 2011 (Cth)
Cases cited: Agar v Hyde (2000) 201 CLR 552
Al Saudi Banque v Clark Pixley [1990] Ch 313
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Armidale City Council v Alec Finlayson Pty Ltd [1999] FCA 330
Attorney-General v Colney Hatch Lunatic Asylum (1868) LR 4 Ch App 146
Attorney-General v Council of the Borough of Birmingham (1858) 70 ER 220
Bamford v Albert Shire Council [1998] 2 Qd R 125
Bamford v Turnley (1862) 122 ER 27
Blue Wedges Inc v Minister for Environment Heritage and the Arts (2008) 167 FCR 463
Blyth v Birmingham Waterworks (1856) 156 ER 1047
Bolton v Stone [1951] AC 850
Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 615
Boynton v Gill (1640) Rolle’s Abr. Nusans, fo. 90, pl. 7
Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 102
Brodie v Singleton Shire Council (2001) 206 CLR 512
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185
Bryan v Maloney (1995) 182 CLR 609
CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390
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Carey v Freehills [2013] FCA 954
Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398
Cattanach v Melchior (2013) 215 CLR 1
Chapman v Hearse (1961) 106 CLR 112
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Crossley and Sons Ltd v Lightowler [1867] LR 2
D’Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Dalby v Berch (1330) Y.B. Trin. 4 Edw. III, fo. 36, pl. 26
Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1
Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion’s Case)
Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218
Donoghue v Stevenson [1932] AC 562
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241
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Fuller-Wilson v State of New South Wales [2018] NSWCA 218
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Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hargrave v Goldman (1963) 110 CLR 40
Heaven v Pender (1883) QBD 503
Hoffmann v Boland [2013] NSWCA 158
Hole v Barlow (1858) 4 CBNS 334
Hooper v Rogers [1975] Ch 43
Hopkins v AECOM Australia Pty Ltd (No 3) [2014] FCA 1043
Hulle v Orynge (1466) Y.B. Mich. 6 Edw. IV, fo. 7, pl. 18 (the Case of the Thorns)
Hunter and New England Local Health District v McKenna (2014) 253 CLR 270
Hunter Area Health Service v Presland (2005) 63 NSWLR 22
Hurst v Queensland (No 2) [2006] FCAFC 151
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27
King v Philcox (2015) 255 CLR 304
Kleinwort Benson Ltd v Lincoln City Council (1999) 2 AC 349
Ku-ring-gai Council v Chan [2017] NSWCA 226
Makawe Pty Limited v Randwick City Council [2009] NSWCA 412
Miller v Miller (2011) 242 CLR 446
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433
Minister for Immigration and Multicultural and Indigenous Affairs v Lorenzo [2005] FCAFC 13
Mitchil v Alestree (1676) 1 Vent 295
MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 7) [2012] NSWCA 417
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Northern Territory v GPAO (1999) 196 CLR 553
Overseas Tankship (UK) Ltd v The Miller Steamship Co [1967] AC 617
Pape v Federal Commissioner of Taxation (2009) 238 CLR 1
Parramatta City Council v Lutz (1988) 12 NSWLR 293
Perre v Apand Pty Ltd (1999) 198 CLR 180
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42
Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17
Port Stephens Shire Council v Booth [2005] NSWCA 323
Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102
Pyrenees ShireCouncilv Day (1998) 192 CLR 330
Re Eve [1986] 2 SCR 388
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater(No 22) [2019] NSWSC 1657
Rosenberg v Percival (2001) 205 CLR 434
Royal Insurance Co Ltd v Midland Insurance Co Ltd (1908) 26 RPC 95
Rylands v Fletcher (1868) LR 3 HL 330
Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 7) [2021] FCA 237
Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 CLR 344
Shirt v Wyong Shire Council [1978] 1 NSWLR 631
Skelton v Collins (1966) 115 CLR 94
Smethurst v Commissioner of Police (2020) 94 ALJR 502
South Australia v Commonwealth (1962) 108 CLR 130
St Helens Smelting Co v Tipping (1865) 11 ER 1483
State of New South Wales v Paige (2002) 60 NSWLR 371
Stuart v Kirkland-Veenstra (2009) 237 CLR 215
Sullivan v Moody (2001) 207 CLR 562
Sutherland Shire Council v Becker [2006] NSWCA 344
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Sydney Water Corporation v Turano (2009) 239 CLR 51
Tame v New South Wales (2002) 211 CLR 317
Tarkine National Coalition Inc v Minister for the Environment (2015) 233 FCR 254
The Commonwealth v Mewett (1997) 191 CLR 471
Ultramares Corporation v Touche (1931) 174 NE 441
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Vairy v Wyong Shire Council (2005) 223 CLR 422
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
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Voli v Inglewood Shire Council (1963) 110 CLR 74
Walton v Gardiner (1993) 177 CLR 378
Weber v Greater Hume Shire Council (2019) 100 NSWLR 1
Weld v The Gas-Light Company (1816) 171 ER 442
Wellesley v Duke of Beaufort (1827) 38 ER 236
Wellesley v Wellesley (1828) 4 ER 1078
William Aldred’s Case (1610) 77 ER 816
Wollongong City Council v Fregnan [1982] 1 NSWLR 244
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
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Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 521 Date of hearing: 2 to 5 March 2021 Counsel for the Applicants: Mr N Hutley SC with Mr E Nekvapil, Ms K Brazenor and Ms S Brenker Solicitor for the Applicants: Equity Generation Lawyers Counsel for the First Respondent: Mr S Free SC with Ms Z Maud Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr T Howard SC Solicitor for the Second Respondent: Ashurst Australia ORDERS
VID 607 of 2020 BETWEEN: ANJALI SHARMA AND OTHERS NAMED IN THE SCHEDULE (BY THEIR LITIGATION REPRESENTATIVE SISTER MARIE BRIGID ARTHUR)
First Applicant
AND: MINISTER FOR THE ENVIRONMENT (COMMONWEALTH)
First Respondent
VICKERY COAL PTY LTD (ACN 626 224 495)
Second Respondent
ORDER MADE BY:
BROMBERG J
DATE OF ORDER:
27 MAY 2021
THE COURT ORDERS THAT:
1.The applicants’ application for an interlocutory injunction is dismissed.
2.The claims made by each of the applicants (other than those made on behalf of the represented persons) for a quia timet injunction, are dismissed.
3.The parties consult and, on or before 3 June 2021, file proposed orders addressing the matters dealt with at paragraph 520 of the Court’s reasons for judgment.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
1. THE PARTIES AND THEIR CLAIMS
[4]
2. THE APPLICATION FOR APPROVAL TO EXTEND THE COAL MINE
[18]
3. THE RISK OF HARM
[29]
3.1 The Effect of Greenhouse Gases upon Earth’s Surface Temperature
[37]
3.2 The Earth System, Carbon Sinks, Feedbacks, the Tipping Cascade and ‘Hothouse Earth’
[44]
3.3 Effects to Date of Human Emissions of CO2
[54]
3.4 Future Effects – The Future World Scenarios
[55]
3.4.1 Effects of a 2℃ Future World
[67]
3.4.2 Effects of a 3℃ Future World
[68]
3.4.3 Effects of a 4℃ Future World
[69]
3.4.4 What Needs to Be Done to Achieve a 2℃ Future World
[70]
3.5 Deliberation and Conclusions
[74]
4.DOES THE MINISTER OWE THE CHILDREN A DUTY OF CARE?
[91]
4.1 Ascertaining whether a Novel Duty Exists – the Applicable Legal Principles
[96]
4.2 The Law’s Adaptation to Altering Social Conditions – The Early Environmental Cases
[116]
4.3 The Methodology of Development of the Common Law
[138]
4.4 The Salient Features to Be Considered
[143]
4.5 The Statutory Scheme
[149]
5. THE AFFIRMATIVE SALIENT FEATURES
[184]
5.1 Reasonable Foreseeability of Harm
[184]
5.1.1Heatwaves
[205]
5.1.2Bushfires
[226]
5.1.3 Other ‘Direct Impacts’
[236]
5.1.4 ‘Indirect’ and ‘Flow-on’ Impacts
[237]
5.1.5 Conclusion on Reasonable Foreseeability of Harm
[247]
5.2 Control, Responsibility and Knowledge
[258]
5.3 Vulnerability, Reliance and Recognised Relationships
[289]
6. THE NEGATIVE SALIENT FEATURES
[316]
6.1 Coherence of the Posited Duty with the Statutory Scheme and Administrative Law
[316]
6.2 Indeterminacy
[428]
6.3 Other Control Mechanisms
[474]
7. CONCLUSIONS ON DUTY OF CARE
[490]
8. SHOULD AN INJUNCTION BE ISSUED?
[492]
9. CONCLUSION AND FURTHER STEPS
[513]
The applicants claim that the first respondent, the Commonwealth Minister for the Environment (Minister) owes them and other Australian children a duty of care. They also claim an injunction to restrain an apprehended breach of that duty. In assessing whether a duty of care exists, the law of negligence focuses upon the foreseeability of harm and the relationship between the person who has caused or contributed to the harm (or will do so) and the persons who have or may be harmed.
That is the focus of these reasons. They commence with an introduction to the parties, their respective cases and the conduct which the applicants say is subject to a duty of care – a decision by the Minister made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to approve the extraction of coal from a coal mine. Details about the application for approval are then given in Section 2 of these reasons. In Section 3, my reasons turn to consider the evidence about the degree of risk and the magnitude of the risk of harm feared by the applicants. The foreseeability and likelihood of that harm arising and being caused or contributed to by carbon dioxide (CO2) emissions in the Earth’s atmosphere generated by the combustion of coal from the coal mine is also considered.
Section 4 of these reasons addresses the legal principles applicable to establishing the existence of a duty of care and the statutory scheme in which the Minister is empowered to approve or not approve a “controlled action” such as the expansion of a coal mine. My reasons then divide to consider reasonable foreseeability of harm and those features of the relations between the Minister and Australian children which support a finding that a duty of care exists (Section 5 – The Affirmative Salient Features) and those features that do not (Section 6 – The Negative Salient Features). In Section 7, I conclude that the existence of a duty of care is established and should be recognised by the law of negligence. In Section 8, I deal with and reject the application for an injunction to restrain an asserted apprehended breach of the duty of care by the Minister. The further necessary steps to finalise this litigation are then addressed in Section 9.
1. THE PARTIES AND THEIR CLAIMS
The applicants in this proceeding are eight Australian children: Anjali Sharma, Isolde Shanti Raj-Seppings, Ambrose Malachy Hayes, Tomas Webster Arbizu, Bella Paige Burgemeister, Laura Fleck Kirwan, Ava Princi and Luca Gwyther Saunders (the applicants). The applicants are all children residing in Australia. As a consequence of their youth, the proceeding is brought by their litigation representative Sister Marie Brigid Arthur, a Sister of the Brigidine Order of Victoria. The applicants bring the proceeding on their own behalf and as a representative proceeding under Division 9.2 of the Federal Court Rules 2011 (Cth), representing children who ordinarily reside in Australia (the Represented Children) as well as “other Represented Children”, being children residing anywhere in the world. During the course of the hearing the applicants confined their claims for relief to themselves and the Represented Children, that is, the Australian Children. I will refer to the applicants and the Represented Children collectively as the Children.
The Minister is an officer of the Commonwealth within the meaning of s 75(v) of the Constitution, and relevantly, the Minister responsible for administering the EPBC Act.
The second respondent is Vickery Coal Pty Ltd, a wholly owned subsidiary of Whitehaven Coal Pty Ltd. Whitehaven holds development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for a coal mine in northern New South Wales, known as the Vickery Coal Project (the Approved Project). Although approved some time ago, coal production from the Approved Project is yet to commence. The Approved Project occupies a site within the Gunnedah and Narrabri local government areas, approximately 25 kilometres north of Gunnedah in New South Wales.
On or around 11 February 2016, Whitehaven applied to the Minister to expand and extend the Approved Project in accordance with s 68 of the EPBC Act (the Extension Project). Vickery replaced Whitehaven as the proponent of the Extension Project on 17 July 2018. If approved, the Extension Project would, amongst other things, increase total coal extraction from the mine site from 135 to 168 million tonnes (Mt). When combusted, the additional coal extracted from the Extension Project will produce about 100 Mt of CO2.
The Minister has before her the decision to approve or refuse the Extension Project under s 130(1) and s 133 of the EPBC Act. This proceeding concerns that decision.
In this proceeding the applicants claim that the Minister owes each of the Children a duty to exercise her power under s 130 and s 133 of the EPBC Act with reasonable care so as not to cause them harm. That duty of care is said to arise by reason of the existence of a legal relationship between the Minister and the Children recognised by the law of negligence.
The applicants apprehend that the Minister will fail to discharge the duty by exercising her discretion in favour of the approval of the Extension Project. The applicants seek declaratory and injunctive relief designed to preclude the Minister from failing to discharge the duty of care they claim she has.
The particular harm relevant to the alleged duty of care is mental or physical injury, including ill-health or death, as well as economic and property loss. The applicants assert that the Children are likely to suffer those injuries in the future as a consequence of their likely exposure to climatic hazards induced by increasing global surface temperatures driven by the further emission of CO2 into the Earth’s atmosphere. The feared climatic hazards include more, longer and more intense bushfires, storm surges, coastal flooding, inland flooding, cyclones and other extreme weather events.
The applicants allege that such harm will occur in the future and mainly towards the end of this century when global average surface temperatures are forecast to be significantly higher than they are currently. Broadly speaking, it is at that time that, unlike today’s adults, today’s children will be alive and will be the class of persons most susceptible to the harms in question. Indeed, the applicants say that today’s children will live on Earth during a period in which, if CO2 concentration continues to increase, some harm is very probable, serious harm is likely and cataclysmal harm is possible. This seems to be the basis for the proceeding being directed to providing relief to children, as distinct from all persons. On this basis, the applicants say that the Children are vulnerable to a known, foreseeable risk of serious harm, which the Minister can control, but they cannot. In addition, the applicants say that by her position in the Commonwealth Executive, the Minister has special responsibilities to Australian children.
The applicants say that if the Minister approves the Extension Project, carbon presently stored safely underground at the mine site of the Extension Project will be extracted, combusted and emitted as CO2 into the Earth’s atmosphere and will materially contribute to CO2 concentration.
The applicants accept that by this proceeding they seek that the Court recognise a novel duty of care. They say that the salient features of the relationship between the Minister and the Children support the recognition of the posited duty. Further, they say that such a duty raises a natural extension of the historical development of the law of tort in making responsible a person with the ability to cause or control harm to their “neighbour”. They say today’s adults have gained both previously unimaginable power to harm tomorrow’s adults, and the ability to control that harm. The applicants seek the aid of the Court to impose a correlative responsibility to protect them from what they say is a serious threat of irreversible future harm.
The Minister does not dispute that climate change presents serious threats and challenges to the environment, the Australian community and the world at large. However, the Minister denies the existence of a duty of care as alleged. The Minister denies that injury to the Children from the approval of the Extension Project is reasonably foreseeable and says that the relevant salient features point overwhelmingly against the recognition of the novel duty of care contended for by the applicants. Additionally, the Minister contends that if a duty of care exists, there is no reasonable apprehension that the duty will be breached and for that and other reasons no proper basis to grant injunctive relief. The Minister contends that the proceeding should be dismissed.
The applicants also sought an interlocutory injunction to restrain the Minister from exercising her power under s 130 and s 133 of the EPBC Act pending the hearing and determination of the proceeding. It was only in relation to this limited aspect of the applicants’ claim that Vickery sought to be joined as a respondent to the proceeding and participate at the hearing.
As a matter of case management, and with the consent of the parties, the hearing of the interlocutory injunction was adjourned to, and heard in conjunction with, the final hearing. This course was facilitated by the Minister providing an undertaking to the Court not to make a decision under s 130 and s 133 of the EPBC Act before the conclusion of the final hearing. The Minister later extended that undertaking to effectively facilitate the publication of these reasons. Ultimately, it has not been necessary for me to determine the application for an interlocutory injunction and for that reason I will dismiss that application.
2. THE APPLICATION FOR APPROVAL TO EXTEND THE COAL MINE
The relevant background to the Approved Project and the Extension Project was not in dispute and I have drawn the following account from the Statement of Agreed Facts filed by the parties and the from parties’ respective submissions.
An initial proposal to develop the coal mine north of Gunnedah was made by Whitehaven in 2014 under the EPA Act. This is the Approved Project, and it was approved as a ‘State Significant Development’ within the meaning of s 89C(1) (now s 4.36(1)) of the EPA Act on 19 September 2014). That initial application did not invoke the operation of the EPBC Act. That is because on 17 May 2012, a delegate of the Minister determined that the proposed action was not a ‘controlled action’ under s 75 of the EPBC Act, if implemented in a particular manner. It therefore did not require the Minister’s approval under the EPBC Act.
The Approved Project sought to extract further coal buried deeper in the ground than in past mining activities on the site. It had ambitions of extracting of 135 Mt of coal over a 30-year period, at a rate of up to 4.5 Mt of run-of-mine (ROM) coal per year. In addition, associated developments were proposed which would facilitate the transportation of ROM coal on public roads to Whitehaven’s existing coal handling and preparation plant (CHPP). This facility enables coal to be processed and loaded onto trains for rail transport to the Port of Newcastle.
Despite these ambitions, coal production at the mine has not yet commenced.
As set out above, on or around 10 February 2016, Whitehaven applied to the Minister to extend the Approved Project in accordance with s 68 of the EPBC Act. The focus of this proceeding is the application for the Extension Project. The proposed actions of the Extension Project include:
(i)an increase in the total coal extraction from the site of the Approved Project from 135 to 168 Mt;
(ii)an increase in the peak annual extraction rate from 4.5 to 10 Mt per annum (Mtpa) of coal and an additional disturbance area of 776 hectares; and
(iii)the development of a new CHPP and train-load-out facility at the site of the Approved Project (both of which would process coal from other nearby mines), which would involve:
(a)stockpiling and processing a total of 13 Mtpa of ROM coal;
(b)production of up to 11.5 Mtpa of metallurgical and thermal coal products;
(c)transportation of up to 11.5 Mtpa of coal from the rail load facility, the rail spur line and via the public rail network to Newcastle for export to other countries;
(d)development of a new rail spur to connect the load out facility to the main Werris Creek to Mungindi Railway line;
(e)construction of a water supply borefield and associated infrastructure; and
(f)changes to the final landform in certain specified ways relating to the overburden emplacement areas and pit lake void.
The Extension Project will cause, directly or indirectly, emissions of greenhouse gases, particularly CO2. These estimated emissions are referred to in terms of CO2 equivalent (CO2-e) emissions. Direct greenhouse gas emissions occur from sources that are owned or controlled by the relevant entity or development (referred to as Scope 1 emissions). Indirect greenhouse gas emissions arise from the generation of purchased energy products (principally electricity) by the relevant entity or development (referred to as Scope 2 emissions). Other indirect greenhouse gas emissions arise from sources that are not owned or controlled by the relevant entity or development but are nonetheless a consequence of its mining activity (referred to as Scope 3 emissions).
Over the course of its life, the Extension Project will, compared with the Approved Project, lead to the following levels of greenhouse gas emissions:
(i)an overall reduction of approximately 1 Mt of CO2-e in Scope 1 emissions;
(ii)an overall increase of approximately 0.15 Mt CO2-e in Scope 2 emissions; and
(iii)an overall increase of approximately 100 Mt CO2-e in Scope 3 emissions.
Those actions will take place over a period of 26 years, with one year projected for construction. In this context, the Minister’s delegate determined that the Extension Project constituted a ‘controlled action’ under s 75(1) of the EPBC Act. The relevant controlling provisions were s 18 and s 18A, and s 24D and s 24E (relating to listed threatened species and communities and water resources respectively). As a consequence of declaring the Extension Project a ‘controlled action’, the Minister is required to assess the application under s 130(1) and s 133 of the EPBC Act. Section 130(2) of the EPBC Act prescribes that the proposed action is assessed either pursuant to a bilateral agreement or pursuant to Pt 8 of the Act. The Extension Project was assessed pursuant to a bilateral agreement between the Commonwealth and the State of NSW (Bilateral Agreement) which accredits the assessment process under the EPA Act.
In May 2020, the NSW Department of Planning, Industry and Environment (NSW Department) provided its assessment report (NSW Department Report) in accordance with the Bilateral Agreement. A number of environmental, social and economic factors were considered in the NSW Department Report. It found that the possible adverse environmental impacts associated with the Extension Project were outweighed by the public interest in granting its approval. On balance, the NSW Department Report concluded that the Extension Project was acceptable under certain conditions.
Given the status of the Extension Project as a ‘State Significant Development’ under the EPA, the extension application was also assessed by the NSW Independent Planning Commission (IPC) for development consent. The IPC is the designated development consent authority of the Extension Project site under cl 8A of the State Environmental Planning Policy (State and Regional Development) 2011 and s 4.5(a) of the EPA Act. On 12 August 2020, the IPC granted development consent for the extension project, subject to certain conditions (Development Consent) and published its Statement of Reasons for Decision (IPC Report).
The Development Consent and the NSW Department Report were provided to the Minister on 14 August 2020. Generally, the receipt of the assessment report provides the Minister with 30 business days, or such longer period as she specifies in writing, to decide whether to approve the application. However, on 9 December 2020, a delegate of the Minister extended this time to 30 April 2021 pursuant to s 130(1A) of the EPBC Act. Further and as previously indicated, in the context of this proceeding the undertaking given by the Minister was further extended.
3. THE RISK OF HARM
The relief the applicants seek depends upon the Court being satisfied that the approval of the Extension Project by the Minister involves a risk of future injury to each of the Children. The risk of injury alleged by the applicants extends to many forms of what may broadly be described as climatic hazards. Each of these hazards, bushfires being one example, are alleged to be events which climate change will induce in terms of either frequency, ferocity or geographical spread. The risk of harm in question in this case is therefore harm induced by climate change and, more specifically, harm induced by increases in the Earth’s average surface temperature. The applicants alleged that such harm will occur in the future and mainly towards the end of this century when global surface temperatures are forecast to be significantly higher than they are currently.
In a nutshell, the applicants’ case is that the scientific evidence demonstrates the plausible possibility that the effects of climate change will bring about a future world in which the Earth’s average surface temperature (currently at about 1.1°C above pre-industrial temperature levels) will reach about 4°C above pre-industrial temperature levels by about 2100. Supported by unchallenged expert evidence, the applicants contended that a 4°C future world may come about in one of two ways: first, where the greenhouse effect upon the Earth’s increasing temperature is driven by an approximately linear relationship between increased human emissions of CO2 and increased temperatures, and second, in circumstances where continuing human emissions of CO2 will result in ‘Earth System’ changes, which diminish the Earth’s current ability to reflect heat, absorb CO2, and retain CO2 currently held in carbon sinks, triggering ‘tipping cascades’ which propel the Earth into a 4°C trajectory. That scenario was referred to in the evidence as “Hothouse Earth”. Under this scenario, humans will lose the capacity to control climate change and global surface temperatures will continue warming even if human emissions of CO2 are curtailed.
Further, the unchallenged evidence of the applicants is that the best available outcome that climate change mitigation measures can now achieve is a stabilised global average surface temperature of 2°C above pre-industrial levels. However, at that temperature and beyond, there is an exponentially increasing risk of the Earth being propelled into an irreversible 4°C trajectory because of ‘Earth System’ changes.
Given the plausible prospect of Earth’s temperature stabilising at 4°C or greater if stabilisation at 2°C is not achieved, the applicants contended that 100 Mt of CO2 emissions, attributable to the Extension Project, will be significant and material to future increased global average surface temperatures. This, in turn, will expose the Children to a greater risk of injury.
To enable an understanding of the different climate scenarios or the “future worlds” in which that risk of harm to the Children is to be assessed, it is necessary to consider the evidence relevant to those elements of the applicants’ case to which I have just referred.
Most of the evidence to which I will refer was given by Professor Steffen in his report dated 7 December 2020. Professor Steffen is an eminent specialist with over 30 years’ experience in climate and ‘Earth System’ science research and teaching. Neither his expertise nor the opinions he gave were challenged. A brief account of his experience and expertise is set out in the Schedule to these reasons.
The opinions which Professor Steffen gave were sourced in both his own substantial research and that of other specialists in the field. To a large extent, his evidence relied upon the research and climate change modelling published by the Intergovernmental Panel on Climate Change (IPCC). As a factsheet published by the Minister’s Department states, the IPCC is the leading international body for assessing scientific research on climate change and is acknowledged by governments around the world as the most reliable source of advice on climate change. The IPCC was established in 1988 to provide the world with a clear scientific view on the current state of knowledge on climate change and its potential environmental and socio-economic impacts. The IPCC is organised into three working groups and a taskforce that focuses on greenhouse gas emissions. The main role of each working group is to summarise the state of knowledge on climate change in reports published by the IPCC, known as IPCC Assessment Reports. To ensure that those reports are credible, transparent and objective, the reports must pass through a rigorous two-stage scientific and technical review process before being accepted by the IPCC Plenary which is constituted by representatives of member countries of the United Nations and the World Meteorological Organisation.
The following account of the evidence is also taken from reports prepared by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) and the Australian Bureau of Meteorology (BoM). Neither the expertise of the relevant authors of the CSIRO or BoM publications, nor the opinions contained therein, were in contest.
3.1 The Effect of Greenhouse Gases upon Earth’s Surface Temperature
The greenhouse effect describes the relationship between the atmospheric concentration of greenhouse gases and global average surface temperature. The Earth’s surface absorbs energy from the sun in the form of visible and ultraviolet radiation, and discharges some of this energy back into space in the form of infrared radiation (heat). CO2 is a greenhouse gas. CO2 absorbs a significant proportion of the outgoing radiation and re-radiates some of it back into the lower atmosphere (troposphere) and into the Earth’s surface, thus warming the surface and lower atmosphere.
It is well-established that, when burned to produce energy, fossil fuels such as coal produce greenhouse gases, particularly CO2.
Emissions of CO2 from industrial sources (currently about 90%) and land-use change (currently about 10%) have raised the atmospheric concentration of CO2 and the global average surface temperature by 1.1℃ compared to pre-industrial levels. From pre-industrial levels to the present, the combustion of coal by humans is estimated to have produced around 1,000 gigatonnes (Gt) of CO2 out of a total of 2,180 Gt emitted by human activity generally. That is, the combustion of coal has contributed about 46% of the total emission of CO2. Professor Steffen estimates that this has contributed about 0.5℃ of the total of 1.1℃ temperature rise from the reference date up to the present date. The commonly used reference date for climate change related parameters as defined by the IPCC is the 1850-1900 average, or, where data is available for individual years, 1876. This is referred to as “pre-industrial”.
Increasing emissions of CO2 from the Earth’s surface increase the concentration of CO2 in the atmosphere, which intensifies the greenhouse effect. In other words, the more outgoing infrared radiation (heat) is trapped and re-radiated by CO2, the more the Earth’s surface and lower atmosphere are warmed. Other greenhouse gases such as methane and nitrous oxide also influence global average surface temperature.
Professor Steffen opined that there is an approximately linear relationship between human emissions of CO2 from all sources and the increase in global average surface temperature (subject to the non-linear impact of feedbacks, which are discussed below). In the absence of the non-linear effects of feedbacks, further emissions of CO2 from human activities (combustion of fossil fuels and land use) will increase the global average surface temperature at a rate of about 1℃ for every 1,800 Gt of CO2 emitted).
The concentration of atmospheric CO2 is currently rising at a rate of about 2.5 ppm (parts per million) per year and this is driving increasing temperatures at the rate of 0.24℃ per five-year period or nearly 0.5℃ per decade. If this rate continues throughout this century, by 2100 the global average surface temperature will reach about 5℃ above the pre-industrial level.
At some point in the future, increases in global average surface temperature will likely slow and then stabilise for a multi-decadal period. The rate at which global surface temperature will stabilise depends upon a number of factors. These include, the cumulative CO2 emitted by human activities since the beginning of the Industrial Revolution and also the feedbacks within the ‘Earth System’ that strengthen or weaken the trajectories of CO2 and temperature. I turn then to explain the ‘Earth System’, feedback processes and what Professor Steffen referred to as the “tipping cascade”.
3.2 The Earth System, Carbon Sinks, Feedbacks, the Tipping Cascade and ‘Hothouse Earth’
Professor Steffen described the Earth as a single complex system in which the biosphere, and increasingly human activities, play a vital role in the stable functioning of the planet as a whole. He explained that the ‘Earth System’ (a conceptual construct developed to explain the processes on Earth which cycle materials and energy) is defined as “the suite of interlinked physical, chemical, biological and human processes that cycle (transport and transform) materials and energy in complex, dynamic ways within the system” (Earth System).
As explained by Professor Steffen, within the Earth System there are numerous natural ‘sub‑systems’ which:
(i)filter most of the damaging ultraviolet radiation from the sun, allowing life to flourish on the surface of the Earth;
(ii)facilitate the movement of freshwater around the Earth, providing the necessary rainfall for ecosystems to flourish; and
(iii)absorb CO2 from the atmosphere, which regulates the Earth’s energy balance. Plants perform this role as they photosynthesise.
The role of atmospheric CO2 in the Earth System is that it acts as the thermal regulator, a fundamental controller of the surface temperature of the planet. The ‘carbon cycle’ describes the movement of carbon between land, atmosphere and oceans. It is shown in Figure 2 in Professor Steffen’s report, replicated here:
The global carbon cycle showing the movement of carbon between land, atmosphere and oceans in billions of tons (gigatonnes - Gt) of carbon per year. Yellow numbers are natural fluxes, red are human-driven fluxes, and white are stored carbon.
As is depicted in Figure 2, there are natural features of the environment, including the oceans and land-based sources (eg the Amazon rainforest), which absorb more CO2 than they produce (referred to as “carbon sinks”). About 55% of human emissions of CO2 are absorbed by land and ocean carbon sinks. The remaining 45% that is left in the atmosphere is the primary driver of the increasing global average surface temperature. Land and ocean carbon sinks “fall far short” of absorbing the increased burden on the system caused by human emissions of CO2. This is depicted by Figure 3 of Professor Steffen’s report and is consistent with the joint report prepared by the CSIRO and BoM, entitled State of the Climate: 2020 (CSIRO and BoM report). Figure 3 shows human emissions of CO2 from 1850 to 2018 and the partitioning of this additional CO2 in the Earth System among the atmosphere, the land (vegetation and soils) and the ocean:
The human emissions of CO2, primarily from the combustion of fossil fuels, are partitioned among the atmosphere and carbon sinks on land and in the ocean. The “imbalance” between the total emissions and total sinks reflects imprecisions in our measurements and understanding, primarily of the land and ocean sinks. Source Friedlingstein et al. (2019) and CSIRO and BoM (2020).
Professor Steffen stated that the “magnitude of human emissions of CO2 is overwhelming the capability of the ocean and land sinks to absorb this accelerating burden of additional CO2 in the atmosphere”. This is consistent with the position of the IPCC expressed in the IPCC Synthesis Report (2014).
It is important to understand that within the carbon cycle there are processes known as ‘feedbacks’ which accelerate, and have the potential to further accelerate, the warming of the Earth’s average surface temperature. Examples include:
·melting ice, including the melting of Arctic sea ice and the loss of ice from the Greenland and Antarctic ice sheets. Melting Arctic sea ice will uncover darker seawater, which absorbs more sunlight and accelerates warming. Melting permafrost also releases CO2 and methane into the atmosphere;
·forest dieback, which concerns degradation through drought, heat and fire affecting large biomes such as the Amazon rainforest and boreal forests in Siberia and Canada. Increasing drought and heat will increase fire frequency, causing bushfires that will emit CO2 presently stored in the Earth’s forest systems; and
·changes in circulation patterns, such as the Atlantic Ocean circulation of the northern hemisphere jet stream. A warming ocean affects global ocean and atmospheric circulation, global and regional sea levels and uptake of anthropogenic CO2 and causes losses in oxygen and impacts on marine ecosystems.
According to Professor Steffen and the IPCC, feedback processes accelerate the warming of the Earth System by destroying the Earth’s ability to absorb CO2 or reflect heat. These feedback processes thus compound climate change arising from human emissions of CO2 and other greenhouse gases, producing a non-linear trajectory of increasing temperatures.
As the global average surface temperature rises towards 2℃ and beyond, the risk of such feedbacks being activated increases. Because many feedback processes are interconnected, triggering one feedback process may have a rippling effect on others. Professor Steffen referred to this as a tipping cascade. If this tipping cascade is activated, Professor Steffen opined that humans will lose the capacity to control the trajectory of climate change, leading to a much hotter Earth. He refers to this as the Hothouse Earth scenario.
Hothouse Earth is one of the future world scenarios that I will shortly explain. Before I do that, there are a few other matters to note which Professor Steffen’s report addressed.
Assuming that the stabilisation of CO2 is not affected by non-human factors such as ‘feedback processes’, the stabilisation of CO2 in the Earth’s atmosphere requires that human emissions of CO2 reach net zero. Professor Steffen stated that reaching net zero is a pre-requisite for global average surface temperature to stabilise. However, there will be a lag between global average surface temperature stabilising and the stabilisation of atmospheric CO2 of several decades at least and possibly up to a century. That is because of the time needed for the heat content of the major components of the Earth System – land, ocean, ice and atmosphere – to equilibrate, with a net transfer of heat from the ocean to the atmosphere.
3.3 Effects to Date of Human Emissions of CO2
Professor Steffen was asked to describe the effects to date of human emissions of CO2 in Australia and globally. His evidence was as follows:
The human emissions of CO2 (and other greenhouse gases, although CO2 is the most important) have already changed Earth’s climate in very many significant ways. As an overview, the planet’s atmosphere and ocean are heating at an increasing rate, polar ice is melting, extreme weather events are becoming more extreme, sea levels are rising, and ecosystems and species are being lost or degraded.
(a)The most important impacts of climate change to date on Australia include the following (CSIRO and BoM 2020):
•Australia’s climate has warmed on average by 1.44 ± 0.24°C since national records began in 1910, leading to an increase in the frequency of extreme heat events. Summer extreme temperatures are increasingly breaching 35°C and even 40°C in most of our capital cities and many regional centres.
•There has been a decline of around 16 per cent in April to October rainfall in the southwest of Australia since 1970. Across the same region, May–July rainfall has seen the largest decrease, by around 20 per cent since 1970.
•In the southeast of Australia there has been a decline of around 12 per cent in April to October rainfall since the late 1990s.
•There has been a decrease in streamflow at the majority of streamflow gauges across southern Australia since 1975.
•Rainfall and streamflow have increased across parts of northern Australia since the 1970s.
•There has been an increase in extreme fire weather, and in the length of the fire season, across large parts of the country since the 1950s, especially in southern Australia.
•There has been a decrease in the number of tropical cyclones observed in the Australian region since 1982.
•Oceans around Australia are acidifying and have warmed by around 1°C since 1910, contributing to longer and more frequent marine heatwaves.
•Sea levels are rising around Australia, including more frequent extremes, that are increasing the risk of inundation and damage to coastal infrastructure and communities.
(b) The effects of climate change are clear and unequivocal around the planet - on every continent and in every ocean basin. The most important impacts of climate change to date globally include the following (IPCC 2013):
•Warmer and/or fewer cold days and nights over most land areas.
•Warmer and/or more frequent hot days and nights over most land areas.
•Increases in the frequency and/or duration of heat waves in many regions.
•Increase in the frequency, intensity and/or amount of heavy precipitation (more land areas with increases than with decreases).
•Increases in intensity and/or duration of drought in many regions since 1970.
•Increases in intense tropical cyclone activity in the North Atlantic since 1970.
•Increased incidence and/or magnitude of extreme high sea levels.
Global observational evidence published since the IPCC Fifth Assessment Report in 2013 reinforce these trends. For example:
•Measurements from satellite altimeters show a climate-change driven acceleration of mean global sea level over the past 25 years (Nerem et al. 2018). Averaged globally over the past 27 years, sea level has been rising at 3.2mm/year. But for the past five years, the rate was 4.8mm/year, and for the 5-year period before that the rate was 4.1mm year (Canadell and Jackson 2020, based on data from the European Space Agency and Copernicus Marine Service).
•Climate change is rapidly increasing the thermal stress for coral reefs as measured at 100 coral reef locations around the world. The level of thermal stress during the 2015-2016 El Niño was unprecedented over the period 1871-2017 (Lough et al. 2018).
•Intense tropical cyclone activity has increased from 1980 to 2016. Storms of 200 km/hr have doubled in number, and storms of 250 km/hr have tripled in number (Rahmstorf et al. 2018).
3.4 Future Effects – The Future World Scenarios
In his evidence, Professor Steffen outlined the approach adopted by climate scientists to project how continued CO2 emissions from human activity might affect the Earth System in the future and what the impacts of any such change (including on the level at which Earth’s surface temperatures stabilise) might be:
(a)The most common approach involves quantitative projections by reference to Earth System models based on mathematical descriptions of the major features of the Earth System and their interactions.
(b)The models are driven by projected human emissions of greenhouse gases and land-use change, as well as natural drivers of climate change such as solar radiation.
(c)The outputs of the models provide insight into the risks presented by different levels of climate change, often characterised by changes in global average surface temperature.
(d)The analysis is supplemented by evidence from past changes in the Earth System (such as the melting of the ice caps during previous warm periods) which may provide insights as to how the Earth System might change in the future.
One such model is the representative concentration pathway (RCP), which accounts for the full suite of greenhouse gases and land use over time. RCPs are framed in terms of “radiative forcing”, which refers to the change in energy levels in the Earth system due to particular drivers of climate change. Radiative forcings which are larger than zero indicate global warming, while radiative forcings which are smaller than zero indicate global cooling.
The IPCC has published four RCPs: RCP 2.6, RCP 4.5, RCP 6.0 and RCP 8.5. The numbers refer to the radiative forcing in the year 2100. Each RCP consists of a data set which includes a set of starting values and the estimated emissions up to 2100. Each data set is based on historic information and a set of plausible assumptions about future economic activity, energy sources, population growth and other socio-economic factors. The four RCPs cover a range of emission scenarios with and without climate mitigation policies. For example, RCP 8.5 is based on minimal effort to reduce emissions. RCP 2.6 requires strong mitigation efforts, with early participation from all emitters followed by active removal of atmospheric CO2. RCP 2.6 is described by the IPCC Synthesis Report (2014) as a stringent mitigation scenario. RCP 4.5 and RCP 6.0 are described as “intermediate scenarios” and RCP 8.5 as a scenario with “very high emissions of greenhouse gases”. The IPCC stated that scenarios without additional efforts to constrain greenhouse gas emissions lead to pathways ranging between RCP 6.0 and RCP 8.5.
Professor Steffen stated that the lowest RCP (2.6) would result in a global average surface temperature rise of below 2°C by the year 2100, while the highest RCP (8.5) would lead to a temperature rise of 4°C or more by 2100. The continuum of projected increasing global average surface temperature under each scenario from 2046 to 2100 is shown in Table 2.1 of the IPCC Synthesis Report (2014). It should be noted, however, that the reference point used here is not the pre-industrial level. Instead, changes in temperature have been calculated by reference to the 1986-2005 period:
In his evidence, Professor Steffen proposed three possible climate futures, which he correlated to the IPCC RCPs as I will later explain. First, it is convenient to give an outline of the main characteristics of each of Professor Steffen’s three scenarios. “Scenario 1” forecasts that global average surface temperature will stabilise in the second half of this century “at, or very close to, 2°C” above the pre-industrial level. The Minister contended that there was some ambiguity in Professor Steffen’s specification of the temperature at which global average surface temperatures would stabilise for “Scenario 1” and contended that he really meant below 2°C and around 1.8°C. For the reasons later given, I do not accept that contention. I will call Professor Steffen’s “Scenario 1” – a “2°C Future World”. It is equivalent to the RCP 4.5 scenario. Each of those scenarios are based on a linear relationship between future emissions of CO2 and increased global average surface temperature.
Under Professor Steffen’s “Scenario 2”, it is projected that global average surface temperature will stabilise late this century but more likely early into the 22nd century at, or very close to, 3°C, above the pre-industrial level. I will call this Scenario “3°C Future World”. According to Professor Steffen, that Scenario is approximately equivalent to the upper end of RCP 6.0 envelope of temperature scenarios. The scenario is premised on present national policy settings guiding future emissions trajectories.
“Scenario 3” forecasts that global average surface temperature will continue to rise throughout this century with a temperature of about 4°C above the pre-industrial level by late this century, but with the surface temperature likely continuing to rise into the 22nd century. Professor Steffen called this Scenario Hothouse Earth. For convenience and consistency, I will call it a “4°C Future World”. In terms of temperature outcomes at or around the end of this century, this scenario corresponds with the IPCC’s RCP 8.5 which forecasts a 4°C or more temperature rise by the end of this century.
However, the two scenarios differ in the paths they each take to reach a similar conclusion about temperature at the end of this century. RCP 8.5 is based on human emissions of CO2 being the dominant driver of temperature rise, whereas Professor Steffen’s scenario is non‑linear by reference to the impact of human CO2 emissions and is premised upon feedback processes being activated and adding significant amounts of greenhouse gases to the atmosphere and playing an important role in the ultimate temperature rise.
Professor Steffen did not propose a possible scenario of his own which correlated with RCP 2.6. He did however give consideration to that scenario. He stated that RCP 2.6 is consistent with the Paris Agreement signed within the United Nations Framework Convention on Climate Change in 2015 (“Paris Agreement”) target of limiting temperatures to well below 2℃ with the ambition to limit temperature to 1.5°C above the pre-industrial average. Professor Steffen predicts that the target of 1.5℃ is now very likely to be “inaccessible without significant overshoot” (temperatures rising above 1.5℃) followed by a drawdown of CO₂ from the atmosphere by natural means (such as reforestation), industrial means (such as carbon capture and storage) or both.
In this context which includes consideration by Professor Steffen of some six years’ worth of data about emissions since the IPCC published its RCPs, Professor Steffen opined that the lowest temperature increase that can realistically be contemplated today is that the global average surface temperature will stabilise at, or very close to, 2°C above pre-industrial levels. This is Professor Steffen’s “Scenario 1” and what I have called a 2°C Future World and reflects RCP 4.5.
Professor Steffen’s analysis essentially contemplated that there are only two future worlds now likely to be accessible: either a 2°C Future World or a 4°C Future World. In Professor Steffen’s opinion, RCP 8.5 appears to be increasingly unlikely as renewable energies become cheaper and begin to replace fossil fuels at large scales. However, as indicated already, Professor Steffen opined that essentially the same temperature level (about 4°C by about 2100) envisaged by RCP 8.5 will be reached if the 4°C Future World scenario becomes the reality. Professor Steffen considered a 4°C Future World as plausible given sufficient levels of human emissions of CO₂. However, if certain mitigation measures are taken, Professor Steffen suggested that a 2°C Future World is also plausible. Although Professor Steffen identified a 3°C Future World as a possibility, he opined that there is a “very significant risk” that a 3°C Future World is not accessible because there is a danger that “strongly non-linear feedbacks will be activated by a 3°C warning”. In other words, Professor Steffen forecasts that a tipping cascade will likely be activated by a 3°C temperature rise. He stated that that could occur at “even lower” temperatures, noting that a 2°C temperature rise could trigger a 4°C Future World trajectory but the probability of such a scenario was “much lower” for a 2°C rise than for a 3°C rise. He alternatively expressed this by saying there was “a small (but non-zero) probability of initiating a tipping cascade at a 2°C temperature rise”. Professor Steffen’s assessment is supported by the IPCC’s projection of a “moderate” risk of feedback processes being triggered at a 2°C temperature rise. Professor Steffen opined that this risk will undoubtedly rise with a 3°C temperature increase.
A fundamental point made by Professor Steffen’s analysis is that if sufficient measures are not taken to reduce human emissions of CO2 so as to stabilise surface temperature at 2°C, global average surface temperatures will then enter an irreversible 4°C Future World or Hothouse Earth trajectory. Professor Steffen opined that ‘feedback processes’ will be activated by a 3°C (or even lower) temperature rise with a consequent “significant risk” that a tipping cascade will be triggered taking the global average surface temperature beyond 3°C and onto the 4°C Future World trajectory. That is depicted in Figure 4 of Professor Steffen’s report.
3.4.1 Effects of a 2℃ Future World
In relation to each of the three scenarios postulated by Professor Steffen, he described the projected global impacts followed by a description of the impacts in Australia. He noted that the risks and impacts described were linked to the stabilisation of the global average surface temperature for each of the three scenarios. He emphasised that stabilisation will take multiple decades at a minimum and stated that, therefore, the risks and impacts described were relevant to the current generation of children and the following generation or two.
Scenario 1: Stabilisation at a rise in global average surface temperature of about 2℃ above the pre-industrial level (IPCC 2018).
•37% of the global population will be exposed to extreme heat at least once every five years. This will have severe impacts on human health and wellbeing, as well as on worker productivity.
•Sea-level will rise by 0.46 m by 2100, leading to large increases in coastal flooding, saltwater intrusion in low-lying areas, and more damaging storm surges. The most vulnerable countries include small island states, Bangladesh, low-lying Southeast Asian cities and settlements, and many regions along the African coast.
•99% of coral reefs will be dead from severe bleaching; this means that the Great Barrier Reef will cease to exist as we know it today, as well as other coral reefs around the world.
•A decline of 3 million tonnes in marine fisheries, with the most severe impacts on developing countries that rely on marine fish for a large fraction of protein in their diets.
•Ecosystems will shift to a new biome on 13% of Earth’s land, leading to large rates of extinctions as well as a surge in invasive species as individual organisms migrate in response to a changing climate.
•6.6 million square kilometres of Arctic permafrost will thaw, releasing large amounts of CO2 and methane to the atmosphere, accelerating the warming trend.
•7% reduction in maize harvests in the tropics, with the poorest countries suffering the most damaging impacts.
•16% of plant species will lose at least half of their current range, leading to significant within-ecosystem changes as well as an increase in extinction rates.
For Australia, Scenario 1 would significantly increase the likelihood in any given year of extreme weather events (King et al. 2017): (i) 77% likelihood of severe heatwaves, power blackouts and bushfires; and 74% likelihood of severe droughts, water restrictions and reduced crop yields. More generally, CSIRO and BoM 2020, have used simulations from the latest generation of climate models to project changes to Australia’s climate over the next few decades. These projections would thus be relevant for a 1.5-2℃ world, and thus provide useful insights for Scenario 1:
•Continued warming, with more extremely hot days and fewer extremely cool days.
•A decrease in cool season rainfall across many regions of the south and east, likely leading to more time spent in drought.
•A longer fire season for the south and east and an increase in the number of dangerous fire weather days.
•More intense short-duration heavy rainfall events throughout the country.
•Fewer tropical cyclones, but a greater proportion projected to be of high intensity, with ongoing large variations from year to year.
•Fewer east coast lows particularly during the cooler months of the year. For events that do occur, sea level rise will increase the severity of some coastal impacts.
•More frequent, extensive, intense and longer-lasting marine heatwaves leading to increased risk of more frequent and severe bleaching events for coral reefs, including the Great Barrier and Ningaloo reefs.
•Continued warming and acidification of its surrounding oceans.
•Ongoing sea level rise. Recent research on potential ice loss from the Antarctic ice sheet suggests that the upper end of projected global mean sea level rise could be higher than previously assessed (as high as 0.61 to 1.10 m global average by the end of the century for a high emissions pathway, although these changes vary by location).
•More frequent extreme sea levels. For most of the Australian coast, extreme sea levels that had a probability of occurring once in a hundred years are projected to become an annual event by the end of this century with lower emissions, and by mid-century for higher emissions.
3.4.2 Effects of a 3℃ Future World
The effects forecast by Professor Steffen for a 3℃ Future World were as follows:
Scenario 2: Stabilisation at a rise in global average surface temperature of about 3℃ above the pre-industrial level. Here I focus on projected impacts on Australia of this scenario, based on a recent assessment by the Australian Academy of Sciences (Hoegh-Guldberg et al. 2020, and references therein):
•Many of Australia’s ecological systems, such as coral reefs and forests, would be unrecognisable, accelerating the decline or Australia’s natural resources through the loss or change in the distribution of thousands of species and ecological processes. (As noted for scenario 1, the Great Barrier Reef will no longer exist at temperature rises of 2℃ or more).
•Much larger climate change-driven changes to water resources are likely, leading to increasingly contested supplies for natural flows, irrigated agriculture and other uses.
•At 3℃, living in many Australian cities and towns would be extremely challenging due to more frequent and severe extreme weather events, including much higher temperatures and more severe water shortages.
•Sea levels will rise by 0.4 to 0.8 metres by 2100 and by many metres over subsequent centuries. These changes will cost hundreds of billions of dollars over coming decades as coastal inundation and storm surge increasingly impact Australia’s coastal communities, infrastructure and businesses. Between 160,000 and 250,000 properties are at risk of flooding when sea levels rise to 1 metre above pre-industrial.
•The probability of large-scale extreme events, such as large storms, floods, droughts, hail storms, tropical cyclones, heatwaves and other climate-related phenomena will increase rapidly.
•High fire danger weather will increase significantly, leading to more catastrophic fire seasons such as the 2019/2020 Black Summer fires.
•Grain, fruit and vegetable crops will suffer more severe reductions in yields in a 3℃ world, and rising heat stress will negatively affect extensive and intensive livestock systems.
•Rural communities will face increasingly harsh living conditions due to increasing debt from diminishing crop yields, insurance losses from worsening extreme weather events, and more challenging working conditions due to increasing extreme heat.
•Australia at 3℃ will be hotter, drier and more water stressed with impacts on water security, availability, quality, economies, human health and ecosystems. Many locations in Australia in a 3℃ world would be very difficult to inhabit due to projected water shortages.
•Multiple impacts of a 3℃ world would damage the health and wellbeing of Australians. These include escalating heat stress, more frequent and intense bushfires, reduced access to food and water, increasing risk of infectious disease, and deteriorating mental health and general wellbeing.
3.4.3 Effects of a 4℃ Future World
The projected effects of a 4℃ Future World were described by Professor Steffen as follows:
Scenario 3: The Hothouse Earth scenario, with stabilisation in the 22nd century at a global average surface temperature level at least 4℃, and probably higher, above the pre-industrial level. There has been much less research on the impacts of a 4-5℃ temperature rise in global average surface temperature. However, a few of the potential impacts that could arise from such a high level of warming were summarised in Steffen et al. (2018: Supplementary Information). These include:
•Multiple impacts on agricultural regions, including depletion of soil fertility, changes in water availability and loss of coastal agricultural lands, with the risk of widespread starvation in the most vulnerable regions and/or large migrations out of those regions, increasing the risk of conflict elsewhere.
•Destruction of coral reefs from ocean warming and acidification, and consequent loss of livelihoods for those communities and societies dependent on reefs.
•Amazon rainforest at risk of conversion to savanna from both climate and land-use change. This would lead to large releases of CO2 to the atmosphere as well as large increases in extinction rates of species that depend on the rainforest.
•Tropical drylands at risk of becoming too hot and dry for agriculture, and too hot for human habitation. This has very large implications for many regions in Africa in particular, but also parts of Asia and much of Australia (see below).
•Very large risks from coastal flooding to transport, infrastructure and coastal ecosystems. Economic damages could trigger regional or global economic collapse as major coastal cities on all continents become uninhabitable.
•Reliability of South Asian (Indian) Monsoon vulnerable to high aerosol loading and to the warming of the Indian Ocean and adjacent land. Well over 1 billion people in south Asia depend on a reliable monsoon system. Failure of the monsoon would very likely lead to large-scale starvation, migration and conflict.
•Mountain glaciers melting at rapid rates, changing amount and timing of run-off. Freshwater resources of over 1 billion people at risk.
•Large changes to riparian and wetlands, with loss of water of some places and increased flooding in others.
For Australia, the corresponding impacts (harms) of Scenario 3 are:
•Much of Australia’s inland areas (savanna and semi-arid zones) will become uninhabitable for humans, except for artificial enclosed environments.
•The southeast and southwest agricultural zones will become largely unviable, due to extreme heat and a reduction in cool season rainfall. This would lead to a large depopulation of regional Australia.
•Australia’s large coastal cities (Brisbane, Sydney, Melbourne, Adelaide, Perth) will suffer increasing inundation and flooding from storm surges as sea level rises to metres above its pre-industrial level over the coming centuries. This will drive severe economic challenges, both because of direct damage from flooding and the large costs of adaptation.
•The Great Barrier Reef will no longer exist.
•Most of the eastern broadleafed (eucalypt forests) will no longer exist due to repeated, severe bushfires.
3.4.4 What Needs to Be Done to Achieve a 2℃ Future World
Professor Steffen’s evidence also addressed the probability of a 2℃ Future World and what would need to be done to achieve it and thus (on his analysis) avoid a 4℃ Future World.
Professor Steffen opined that there is a 67% probability of achieving a 2℃ Future World if cumulative CO2 emissions from 2021 onwards are restricted to about 855 Gt of CO2 (equivalent to about 20 years of emissions at 2019 rates). That would require net-zero emissions by 2050 by all major emitting countries.
Professor Steffen referred to research by McGlade and Ekins (2015) which, using a ‘carbon budget framework’, concluded that there was a 50% probability of the world meeting a 2℃ temperature target if a global CO2 emissions budget of 1,100 Gt of CO2 was achieved for the 2011-2050 period. Professor Steffen noted that this carbon budget was somewhat higher than the budget of 855 Gt of CO2 which he had used in his own analysis (on the basis of a 67% probability). McGlade and Ekins analysed the available global fossil fuel “reserves” and “resources”, defining “resources” as all of the fossil fuels that are known to exist and “reserves” as a subset of “resources”, being those fossil fuels that are currently “economically and technologically viable to exploit”. McGlade and Ekins showed that if all of the world’s existing fossil fuel “reserves” were burnt, about 2,860 Gt of CO2 would be emitted and that about 2,000 Gt of these emissions would come from the combustion of coal. This level of emissions is about 2.5 times greater than the allowable carbon budget for reaching a 2℃ temperature target. On that basis, McGlade and Ekins concluded that globally, 62% of the world’s existing fossil fuel reserves need to be left in the ground, unburnt, and, having performed a regional analysis, it was concluded that over 90% of Australia’s existing coal reserves cannot be burnt to be consistent with a 2℃ temperature target.
The definition of “reserves” used by McGlade and Ekins would appear to include the 100 Mt of coal from the Extension Project, it being “economically and technologically viable to exploit now”. On the basis of the carbon budget analysis used by McGlade and Ekins to predict a 50% probability of meeting a 2℃ Future World, Professor Steffen offered this conclusion:
The obvious conclusion from the carbon budget analysis above is that currently operating coal mines must be phased out as soon as possible (preferably no later than 2030), and that no new coal mines, or extensions to existing coal mines, can be allowed.
35 Deliberation and Conclusions.
The following plausible scenarios were demonstrated by that evidence:
(i)the Paris Agreement target of limiting global average surface temperature to well below 2°C, with the ambition to limit temperature to 1.5°C above the pre-industrial level, is now unlikely to be achieved without significant overshoot;
(ii)the best future stabilised global average surface temperature which can be realistically contemplated today, is 2°C above the pre-industrial level; and
(iii)if the global average surface temperature increases beyond 2°C, there is a risk, moving from very small (at about 2°C) to very substantial (at about 3°C), that Earth’s natural systems will propel global surface temperatures into an irreversible 4°C trajectory, resulting in global average surface temperature reaching about 4°C above the pre‑industrial level by about 2100.
Furthermore, the evidence demonstrates that the risk of harm to the Children from climatic hazards brought about by increased global average surface temperatures, is on a continuum in which both the degree of risk and the magnitude of the potential harm will increase exponentially if the Earth moves beyond a global average surface temperature of 2°C, towards 3°C and then to 4°C above the pre-industrial level.
The applicants also seek to establish propositions which are in contest. Those propositions are directed to the extent that 100 Mt of CO2 from the Extension Project will materially contribute to the Children’s risk of being injured by one or more of the hazards induced by climate change.
Whether the emission of 100 Mt of CO2 from the Extension Project would increase the risk of harm to the Children is relevant to two aspects of the case. First, it bears on whether a duty of care should be recognised and, in particular, to the question of whether it is reasonably foreseeable that the emission of the 100 Mt of CO2 will increase the risk of the Children being harmed. Second, it is relevant to whether I should grant the injunction the applicants seek. For that purpose, I will need to be satisfied (to the extent later discussed) that it is likely that the emission of the 100 Mt of CO2 will cause the Children harm which, relevantly, is an inquiry as to whether it is likely that the emissions will materially contribute to that harm.
As French CJ said in Amaca Pty Ltd v Booth (2011) 246 CLR 36 at [41], “[t]he risk of an occurrence and the cause of an occurrence are quite different things”. Ordinarily, risk is assessed prospectively and causation is assessed retrospectively. However, because, for the purposes of the injunction, I may need to address the prospect of the Minister’s conduct causing harm to the Children, any causation assessment will necessarily be prospective rather than retrospective.
The submissions of the parties as to the prospective connection between the Minister’s impugned conduct (the emission of 100 Mt of CO2) and the increased risk of harm to the Children, were largely made by reference to a causation inquiry and not particularly directed to the risk-focused assessment required by the reasonable foreseeability inquiry. Despite that, the following discussion will assist in determining each of the inquiries I may need to make. My conclusions as to foreseeability inquiry and the causation inquiry (in so far as it has been necessary to come to a conclusion) are given later.
The applicants contended that the 100 Mt of CO2 from the Extension Project would make a material contribution to future increases in the global surface temperature and thus the degree and magnitude of the risk of harm faced by the Children. That was put in two ways although primary reliance was placed on the second. First, the applicants contended that the approval, extraction, export and combustion of carbon from the Extension Project will emit a material quantity of CO2 into the atmosphere. They contended that the more CO2 that is emitted, the higher the level of CO2 concentration will be before it reaches its zenith. The higher the level of CO2 concentration when it reaches its zenith, the worse the harm to today’s children will be.
The Minister responded to that contention by quantifying the increase in global temperature that 100 Mt of CO2 would cause. Assuming a purely linear relationship between increased emissions of CO2 and increased temperature, the calculation was available by reference to Professor Steffen’s evidence that further emissions will increase global average surface temperature at a rate of about 1℃ for every 1,800 Gt of CO2 emitted. The emission of 100 Mt of CO2 would therefore result in an increase of one eighteen-thousandth of a degree Celsius.
The Minister contended that an increase of that magnitude was de minimis, which I take to mean negligible (see Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 615 at 618-619 (Lord Reid)). To make good that contention, the Minister contended by way of example that if it were to be assumed that global average surface temperature would otherwise stabilise at 2℃, it would logically follow that, with the addition of 100 Mt of CO2, the temperature would instead stabilise at 2.00005℃. It was then said that there was simply no evidence before the Court about what that magnitude of increase meant in terms of measurable risk. It was suggested that climate change modelling does not operate at a sufficient level of specificity to provide an answer.
The wealth of scientific knowledge demonstrated by the evidence before me suggests that science is likely capable of providing that answer. However, I am unable to say that the evidence itself demonstrates the extent, if any, that a fractional increase in average global temperature of the kind in question poses an additional risk of harm to the Children. But that conclusion does not answer the way in which the applicants put their case. They argue that it is the accumulation of CO2 which causes exposure to the risk of harm and accumulated CO2, including the contribution to that accumulation which the 100 Mt of CO2 will make, that will bring about increased temperatures and the harm that the evidence demonstrates will follow. In that way, the applicants say there will be a material contribution to injury.
The second way the case was put by the applicants was to adopt what an economist might call a marginal analysis. This contention was made by reference to the contribution that 100 Mt of CO2 may have on the level at which the global average surface temperature will stabilise. In that respect, the applicants first relied on Professor Steffen’s evidence that CO2 emissions from the Extension Project “would increase the level at which atmospheric CO2 concentration is eventually stabilised, and thus would increase the level at which the global average surface temperature is eventually stabilised”. The applicants then relied on the Future World scenarios identified already and the propositions set out at [74] above including that there is a risk, moving in degree from very small to very substantial as the global average surface temperature increases from 2℃ to 3℃ above the pre-industrial level, that a ‘tipping cascade’ will trigger a 4℃ Future World trajectory. The applicants contended that once global average surface temperatures reach or exceed 2℃ above the pre-industrial level, the risk of a 4℃ Future World increases exponentially and that with that heightened realm of risk in prospect, the emission of an additional 100 Mt of CO2 is material. On that basis and given that the evidence demonstrates an increase in both the degree and magnitude of risk of harm to the Children as between a 2℃ Future World and a 4℃ Future World, the applicants contended that the emission of 100 Mt of CO2 in the context of the risk profile just described, is a material contribution to the risk of exposure to harm.
The Minister sought to challenge that submission in a number of ways. First, the Minister characterised the applicants’ case as dependent upon demonstrating that the 100 Mt of CO2 from the Extension Project would be emitted outside the available budget of emissions necessary to meet a 2℃ target. The Minister contended that it is likely that the 100 Mt of CO2 would be emitted compliantly with the Paris Agreement and thus within a lower than 2℃ target.
Putting aside for the moment what I think is a mischaracterisation of the applicants’ case, there is not sufficient evidence before me on which I could conclude that there is no real prospect of the 100 Mt of CO2 being burnt outside the available fossil fuel budget necessary to meet a 2℃ target. The Minister called no evidence. The Minister essentially contended that the Court should infer that the 100 Mt of CO2 would likely be emitted in accordance with the Paris Agreement. There is no sufficient basis for that inference. The Minister relied upon little else than speculation, in circumstances where the evidence showed that at least one of the potential consumers of the coal is not a signatory to the Paris Agreement.
Further and in any event, there is evidence before me which tends to support the proposition that the 100 Mt of CO2 will not be emitted as part of the available carbon budget necessary to achieve a 2℃ target. Professor Steffen’s opinion was that it was “obvious” from the carbon budget analysis, that “no new coal mines, or extensions to existing coal mines, can be allowed”. There can be no doubt that in making that statement Professor Steffen had the Extension Project in mind. True it is that he did not go on to explain why, but to say it is “obvious” by reference to the carbon budget analysis he relied on implies that the reason is to be found in his prior reliance on the study made by McGlade and Ekins, who had analysed the position for Australia and had calculated that over 90% of Australia’s existing coal reserves cannot be burnt to meet a 2℃ target. That observation reveals the logic behind Professor Steffen’s conclusion and it is logic which may be relied upon irrespective of whether the conclusion he proffered was based upon his specialist expertise. If there is no capacity to include 90% of existing Australian reserves of coal in the carbon budget, it seems unlikely that a capacity for new reserves to be included exists. Even “existing” reserves, by which Professor Steffen must have meant those already being exploited, logically have only a 1 in 10 chance of being included in the budget. There is no evidence sufficient to support a contention that the 100 Mt of CO2 from the Extension Project is earmarked for some priority treatment relative to other coal sufficient to put it in the top 10% of candidates for inclusion in the budget.
I should say that, whilst the applicants’ contention about risk is stronger on the basis of there being a real prospect of the 100 Mt of CO2 being emitted on or after average surface temperature has reached 2℃, the contention does not depend upon that. The contention depends upon the plausible prospect that surface temperature will reach a point where a ‘tipping cascade’ will be triggered even by a fractional increase in temperature. As that fractional increase will be the product of an accumulation of CO2, it is not essential to the applicants’ contention that the 100 Mt of CO2 is emitted outside of the ‘carbon budget’. What is essential is that the emission does not occur after the ‘tipping cascade’ is triggered. No one contended for that proposition and, on the evidence I do not think it was available.
In a representative democracy some decisional fields are necessarily the exclusive domain of the legislature. Legislative and quasi-legislative decisions fall into that category. As to quasi-legislative decisions, the abundant authorities are clear that those decisions do not attract a duty of care: Heyman at 469 (Mason J); Pyrenees Shire Council at [182] (Gummow J); Crimmins at [32] (Gaudron J), at [87] and [93] (McHugh J), at [170] (Gummow J), and at [292] (Hayne J); Graham Barclay Oysters at [14] (Gleeson CJ); Vairy at [81] and [85]-[86] (Gummow J). “Core policy‑making functions” also find support as a further exception: Crimmins at [87] and [93] (McHugh J). There are, however, many examples of a duty of care being recognised in relation to a statutory approval process. Alec Finlayson is an example. Further examples are recorded at [391] above. It has not been suggested that statutory decision-making of that kind is a “core policy-making function”.
The Minister did not contend that her statutory task was quasi-legislative in character or a core policy-making function. Her submission relied on the “policy/operational” dichotomy but was primarily based on the inappropriateness of common law intervention into the policy-based statutory task the Minister asserted she must perform.
In that respect the Minister said that her statutory duty was political or policy-based because it required choices to be made or value-laden political judgments to be made about matters of importance. For the reasons already given, the characterisation of the task as political and value-laden is not helpful in and of itself. However, the fundamental point made by the Minister was that her statutory task was steeped in policy considerations appropriately dealt with by her without intervention by the common law. In that respect the Minister contended that how to manage the competing demands of society, the economy and the environment over the short, medium and long term, is a multifaceted political challenge. In the context of climate change, measures to manage those competing demands occur within the context of evolving national and international strategies. It was said that reducing greenhouse gas emissions while simultaneously managing the demands of society and the economy is a complex and nuanced task. The Minister contended that the imposition of a common law duty of care that, by contrast, would render tortious all activities that involve generating (or allowing someone else to generate) material quantities of greenhouse gases is a blunt and inappropriate response.
That contention essentially argued that the Minister is better placed to deal with the complex task of addressing climate change than the common law. The correctness of the proposition, at least in a general sense, cannot be doubted. However, the Minister’s reliance on that proposition was based on a number of false premises. First, that the imposition of a common law duty of care would be addressing the problem of climate change and thus interfere with the statutory task given to the Minister. Second, that the intervention of the common law here, would render tortious all or a multitude of activities that involve the generation of greenhouse gases.
The second premise was also raised by the Minister as a further policy issue. I will deal with that shortly, but I dismiss it.
As to the first premise, the posited duty of care will not and cannot address climate change. All that it can and will do is impose an obligation on the Minister when deciding whether or not to approve the Extension Project to take reasonable care to avoid personal injury to the Children. The imposition of a duty of care does not mandate the Minister’s decision. As already discussed, the EPBC Act itself imposes an obligation upon the Minister to take into account the personal safety of the Children.
The imposition of liability for the breach of a duty of care arising from careless conduct causing personal injury is at the heart of the common law’s place in the legal system. That of itself cannot be an inappropriate intervention upon a statutory field whilst the Speirs line of authority remains good law and, in relation to the Executive, at least where “a particular exercise of power has increased the risk of harm to an individual”: Graham Barclay Oysters at [91] (McHugh J). The possibility of such an intervention being inappropriate because of its distortive impact upon the statutory task is addressed by the requirement of coherence. That is the work done by that principle. All of the potential inappropriate impacts upon the Minister’s statutory task have already been addressed and negated.
The question then is what remains to sustain the idea that the imposition of a duty of care in this case would be an inappropriate intervention by the common law. The elephant in the room may well be that the Minister’s statutory task falls within the realm of a contested political issue as to, first, whether climate change is real and, secondly, if so, whose interests should take priority in addressing it.
Quite correctly, the Minister did not draw my attention to that controversy. Courts are regularly required to deal with legal issues raised in the milieu of political controversy. A political controversy can never provide a principled basis for a Court declining access to justice.
The Minister’s appeal to there being policy choices at play echoed that made in Brodie to which Gaudron, McHugh and Gummow JJ gave the following response at [106]:
Appeals also were made to preserve the “political choice” in matters involving shifts in “resource allocation”. However, citizens, corporations, governments and public authorities generally are obliged to order their affairs so as to meet the requirements of the rule of law in Australian civil society. Thus, it is no answer to a claim in tort against the Commonwealth under s 75(iii) of the Constitution that its wrongful acts or omissions were the product of a “policy decision” taken by the Executive Government; still less that the action is “non-justiciable” because a verdict against the Commonwealth will be adverse to that “policy decision”.
Although perhaps not raised expressly as a policy consideration, the Minister’s submission was interspersed with references to what in essence was a ‘flood-gates argument’ to the effect that the recognition of a duty of care in this case would impose tortious liability on all or a multitude of persons involved in generating emissions of greenhouse gases. It was said, for instance, that if a duty of care exists here, it would follow that the same duty is owed by everyone, everywhere.
Again, the contention has a false premise. It is trite that liability for negligence does not flow merely from injury caused by careless conduct. Liability in negligence requires a breach of a duty of care and whether that duty exists depends on the existence of a relationship between the plaintiff and the defendant sufficient to warrant the intervention of the tort of negligence.
The relations between the Minister and the Children discussed at length in these reasons are peculiar to them. That does not mean that some or even many of the characteristics found in that relationship may not be found in the relations between others. However, the multi-factorial analysis necessary to determine if a duty exists requires the totality of the relationship to be considered: Graham Barclay Oysters at [145] (Gummow and Hayne JJ). The totality of the relations between the Minister and the Children is unique to them. Contrary to the premise of the Minister’s contention, it does not follow from the recognition of a duty of care based on the relationship between the Minister and the Children that the Minister owes a duty of care to others or that anyone else involved in contributing to greenhouse gas emissions owes the same duty.
I am not persuaded that the recognition of the posited duty should be declined for ‘policy’ reasons.
7. CONCLUSIONS ON DUTY OF CARE
‘Coherence’, ‘control’, ‘vulnerability’ and ‘reliance’ all assume especial relevance in an assessment of whether a novel duty of care should be recognised (see [109] above). On the present facts, I regard ‘coherence’ as agnostic, but even if it is to be treated as tending against the recognition of a duty of care, ‘control’, ‘vulnerability’ and ‘reliance’ are affirmative of a duty being recognised and significantly so. ‘Indeterminacy’ and the policy considerations dealt with under the heading “Other Control Mechanisms” are also largely agnostic but if they tend in any direction it may be said that they tend against a duty being recognised. ‘Reasonable foreseeability’ strongly favours the recognition of duty of care. In totality, in my view, the relations between the Minister and the Children answer the criterion for intervention by the law of negligence.
That conclusion is confirmed when re-examined through the lens of the neighbourhood principle and the criteria of reasonableness fundamental to the law of negligence. By reference to contemporary social conditions and community standards, a reasonable Minister for the Environment ought to have the Children in contemplation when facilitating the emission of 100 Mt of CO2 into the Earth’s atmosphere. It follows that the applicants have established that the Minister has a duty to take reasonable care to avoid causing personal injury to the Children when deciding, under s 130 and s 133 of the EPBC Act, to approve or not approve the Extension Project.
8. SHOULD AN INJUNCTION BE ISSUED?
The applicants seek a quia timet injunction to restrain the Minister from an apprehended breach of the duty of care they assert she owes to the Children. I will consider that application by reference to the duty of care I have determined ought to be recognised which would require the Minister to take reasonable care to avoid causing the Children personal injury when deciding to approve or not approve the Extension Project.
The applicants seek an injunction in the following terms:
an injunction under s 75(v) of the Constitution, or s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), or both, to restrain the Minister from exercising power under ss 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)…in a manner that would permit the extraction of coal in accordance with proposal EPBC ID Number 2016/7649.
I accept the Minister’s submission that the restraint that would be imposed by the injunction sought would inevitably require the Minister not to approve the application for the Extension Project. That is so because the application seeks the Minister’s permission to extract coal in accordance with the proposed Extension Project. If I granted the injunction, the Minister could approve that application, but only on the condition that coal is not extracted. It follows that the only effective decision the Minister could make if the injunction is granted is not to approve the Extension Project.
The Court’s jurisdiction to issue an injunction of the kind sought by the applicants is not in contest. The Minister is an officer of the Commonwealth. Section 75(v) of the Constitution provides that the High Court of Australia has jurisdiction in all matters in which an injunction is sought against the officer of the Commonwealth. This Court is provided with co-existence jurisdiction by s 39B(1) of the Judiciary Act 1903 (Cth). Relying upon Smethurst v Commissioner of Police (2020) 94 ALJR 502 at [112] (Gageler J), the applicants contended, and I accept, that an injunction can be issued against an officer of the Commonwealth where that officer “threatens to do something in an official capacity to infringe a common law right… [in which case] an injunction can issue in the exercise of judicial discretion to vindicate the common law right”. Here the applicants submit that the common law right is found in the common law of tort under the broad umbrella of the law of negligence. The applicants then contended, and it is not in contest, that Plaintiff S99 and the authorities that have followed it establish that a permanent quia timet injunction can be granted to restrain an apprehended breach of a duty of care.
That requires satisfaction of each of two matters which are not unrelated. First, a reasonable apprehension of a breach of the duty of care must be established. Second, the principles for the grant of a quia timet injunction must be satisfied.
I discussed the principles in relation to the grant of a quia timet injunction in Plaintiff S99 at [467]-[502]. I do not propose to set out the detail of what I said in Plaintiff S99 here, as the principles there stated were not in dispute. In summary, a quia timet injunction can be granted to prevent or restrain an apprehended or threatened wrong which would result in substantial damage if committed (Hurst v Queensland (No 2) [2006] FCAFC 151 at [20] (Ryan, Finn and Weinberg JJ)). I consider such an injunction is available on a final basis in cases involving the apprehended or threatened breach of a duty of care (see Plaintiff S99 at [473]-[474] and [478]). The relevant general principles for the grant of a quia timet injunction were provided by Bennett J in Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272 at [46] as follows:
•A quia timet injunction is granted to prevent a threatened infringement of the rights of the applicant. The applicant must show that what the respondent is threatening and intending to do will cause imminent and substantial damage to the applicant: Royal Insurance Co Ltd v Midland Insurance Co Ltd (1908) 26 RPC 95 at 97; followed in Bendigo and Country Districts Trustees and Executors Co Ltd v Sandhurst and Northern District Agency Co Ltd (1909) 9 CLR 474 at 478; [1909] HCA 63 (Bendigo).
•The word “imminent” means that the injunction must not be granted prematurely. The degree of probability of future injury is not an absolute standard. What is to be aimed at is justice between the parties, having regard to all the relevant circumstances: Hooper v Rogers [1975] Ch 43 at 50; [1974] 3 All ER 417 at 421. However, this is not to be taken as conveying that future injury need not be shown to be likely at all: Magic Menu Systems at FCR 270; ALR 208.
•Quia timet injunctions are not to be granted unless the imminence of the act to be prohibited is sufficiently clearly established to justify the court’s intervention. (I C F Spry The Principle of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 8th ed, Law Book Co, NSW, 2010 (Spry), referred to and adopted by Weinberg J in Glaxosmithkline at [94].)
•In deciding whether to grant a quia timet injunction, the court will have regard to the degree of probability of the apprehended injury, the degree of seriousness of the injury and the requirements of justice between the parties: Hurst v Queensland (No 2) [2006] FCAFC 151 at [21].
I consider the above principles are applicable where an injunction is sought against the Commonwealth (see Plaintiff S99 at [489]).
The applicants contended that the duty of care will be breached if the Minister approves the Extension Project and that because there is a reasonable apprehension that the Minister will approve the Extension Project, it follows that there is a reasonable apprehension of a breach of the duty of care. The applicants’ submissions assumed that approval of the Extension Project will constitute a breach of the duty of care. However, that may not be so for a number of reasons. At the level of breach, the relevant inquiry to be made will include not only an assessment of reasonable foreseeability but also, taking into account the Minister’s competing or conflicting responsibilities, an assessment as to whether the only reasonably available response to the reasonable foreseeability of personal injury to the Children is that the Minister not approve the Extension Project: see [411] above; Shirt at 47-48 (Mason J); Brodie at [151] (Gaudron, McHugh and Gummow JJ).
The extent to which the Minister’s competing or conflicting responsibilities will influence the reasonable response to the foreseeable harm which is required of the Minister was not the subject of any submissions. Nor were submissions relevantly made about the Minister’s capacity to make a reasonable response, including by imposing conditions on an approval under s 134(1) and (2) of the EPBC Act. The applicants proceeded on the basis that non-approval would be the only response available to the Minister if she was to avoid breaching the duty of care without justifying why that would necessarily be so.
Despite the lack of contest on this issue, I am not satisfied that a more nuanced response from the Minister, something short of unconditional approval, is necessarily unavailable as a reasonable response to the foreseeable harm to the Children. Logic would suggest that various possibilities may be available in the context of an acceptance of the applicants’ case that the feared harm to the Children does not arise if a 2℃ target for global average surface temperature is achieved.
The failure of the parties to explore what is possible leaves me with significant discomfort. By pre-empting the Minister’s decision, the injunction which is sought may deny rather than induce the reasonable response which the duty of care requires. A court should always avoid imposing a restraint unless satisfied it is warranted and, where the imposition of a restraint may fetter a statutory discretion, there is even greater reason for not imposing an unnecessary and unjustified restraint. My discussion of ‘coherence’ has emphasised the importance of this consideration. For what I think were largely strategic reasons, the parties resisted the idea that coherence has a role to play in relation to the grant of relief. I disagree. The fine balance which needs to be struck by coherence-based reasoning demands that insofar as the imposition of liability in negligence impedes the exercise of statutory discretion, it only does so to the extent justified by the imposition of that liability. Relevantly, the imposition of liability in negligence justifies that the Minister makes a reasonable response to the foreseeable harm to the Children. No more than a reasonable response and any resultant impairment upon the statutory discretion is justified. A restraint imposed by an injunction which travels beyond any impairment that is justified by the imposition of liability in negligence raises incoherence. It is imperative therefore that any restraint which is imposed is carefully calibrated to avoid incoherence. An over-reach in a restraint imposed by the Court would not only be unjustified but also irremediable. It was necessary for the applicants to have satisfied the Court that the restraint it seeks is justified including because it would not create incoherence. The applicants have not done that.
To assess the prospect of breach I also need to assess what it is the Minister is likely to do now, in the prevailing circumstances, and not those that existed prior to the trial. The Minister now has a mountain of new information brought forward through this proceeding which was otherwise not previously before her. Additionally, she has the assessments made by the Court about the reliability of that information and the plausibility of the climatic scenarios that may expose the Children to a real risk of harm. She will now appreciate, contrary to the submissions made on her behalf at trial, that in deciding whether or not to approve the Extension Project she must take into account, as a mandatory relevant consideration, the avoidance of personal injury to people. She now knows that a duty of care owed by her to the Children has been demonstrated and that, subject to the Court making declarations, it will now be recognised by the law. She also has the benefit of understanding that an unconditional approval of the Extension Project is not necessarily the only means available to her as a reasonable response to the foreseeable harm to the Children.
Subject to exercising her rights of appeal and succeeding on any appeal, a well-advised and responsible Minister would take notice of those matters. If the Minister does, as I expect she will, due consideration will be given by her to avoiding conduct in breach of the duty of care. It is not the case, as the applicants contended, that an approval is just as likely as non-approval and therefore a reasonable apprehension of breach is thereby established.
If it were the case that any rights the applicants and the class they represent may have to injunctive relief would be irretrievably lost unless an injunction was now granted, a lower threshold may be appropriate for determining whether a breach of the duty is reasonably apprehended. However, there are a number of reasons for thinking that any rights the applicants may have are not necessarily foreclosed should an injunction be refused.
First, it might be expected that the Minister will consider publishing a “proposed decision” inviting public comment, as is facilitated by s 131A of the EPBC Act. In the circumstances, including that the Minister now has before her extensive information about the possible catastrophic risk for 5 million members of the public which may flow from her approval of the Extension Project, it may reasonably be expected that the Minister will consider providing the public an opportunity to comment on her proposed decision as s 131A may reasonably be understood to contemplate. Second, the Minister herself has submitted that any rights the applicants have would not necessarily be lost. She contended that any decision by her in respect of the application for approval is amenable to judicial review. She stated that if it transpires that she should grant approval under the EPBC Act for the Extension Project, the legal validity of that decision could be tested in judicial review proceedings which could be finalised well before any emissions of CO2 were generated by reason of the approval of the Extension Project. The Minister contended that if the applicants are able to demonstrate that such an approval is invalid on administrative law grounds, including because of any suggested overlapping common law duty to take reasonable care, then their rights will be adequately protected.
That submission suggests the Minister’s acceptance that the negligent exercise of her approval power would result in the invalid exercise of that power. No authority for that proposition was given and I have reservations about whether it is correct. Nevertheless, the concession may be significant. It is at least correct to say that it is only a valid approval decision that has the potential to foreclose the applicants’ capacity to obtain injunctive relief and that a valid decision may not necessarily be made by the Minister.
In the circumstances, including that the harm in question is not imminent, I consider it is highly undesirable to pre-empt the Minister’s decision. It would be far more appropriate to assess whether any breach of the duty of care should be restrained once it is known what it is the Minister proposes to do or what she has done in relation to the application to approve or not approve the Extension Project.
Some of the matters already addressed, are also relevant to the principles applicable to the grant of a quia timet injunction which are directed to guiding the Court’s discretion.
The applicants have not satisfied the Court that the extent of the restraint they seek is justified by the imposition of liability in negligence. The applicants have not satisfied the Court that it is probable that the Minister will breach the duty of care in making her decision as to whether or not to approve the Extension Project. They have not satisfied the Court that they will have no further opportunity to apply for injunctive relief. It is preferable in the interests of justice and in balancing the interests of the parties, that the grant of any injunctive relief that may be appropriate await the Minister making either a proposed decision or alternatively a decision under s 130 and s 133 of the EPBC Act to approve or not approve the Extension Project. Other considerations raised by the Minister, including that the likelihood of harm to the Children is not sufficiently significant to warrant an injunction, need not be considered. The applicants’ failure to satisfy the Court that a breach of the duty is reasonably apprehended, together with my concern that the applicants have not established that a restraint in the form sought is warranted, suffice to support my conclusion that an injunction should be refused.
Lastly, I should add that the applicants’ reliance on Plaintiff S99, where a quia timet injunction was issued, is misplaced. In that case, the respondent had already breached the duty of care prior to the grant of a quia timet injunction (see at [405]) in circumstances where injunctive relief was urgent. Council of the Borough of Birmingham and Colney Hatch Lunatic Asylum, two of the early environmental cases on which the applicants relied, are also distinguishable. Neither case involved an apprehended breach of a duty of care and in each case harm had already been occasioned at the time the injunction was granted.
For those reasons, I refuse the applicants’ application for a quia timet injunction.
9. CONCLUSION AND FURTHER STEPS
For the reasons given above, I have concluded that the applicants have established that the Minister has a duty to take reasonable care to avoid causing personal injury to the Children when deciding, under s 130 and s 133 of the EPBC Act, to approve or not approve the Extension Project. I have also concluded that an injunction restraining the Minister from exercising her power under s 130 and s 133 of the EPBC Act in a manner that would permit the extraction of coal from the Extension Project should not be granted.
A number of questions arise as to what declarations or orders the Court should make.
One of those questions concerns whether any declaration or order made by the Court should extend to the children who are represented by the applicants. As set out at the beginning of these reasons, the applicants have brought the proceeding in a representative capacity on behalf of children who reside in Australia or elsewhere. An issue as to whether the representative nature of the proceeding should be continued was initially raised by the Minister’s Concise Statement in Response, but it was not pursued. No submissions have been made on that question at all. Any orders I now make will be binding on each person represented (Rule 9.22(1) of the Rules). Although no order binding on a person represented may be enforced without the Court’s leave (Rule 9.22(2) of the Rules), there may nevertheless be consequences for a represented person arising from the doctrine of res judicata: see Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 at 423-424 (Toohey and Gaudron JJ); Zhang v Minister for Immigration (1993) 45 FCR 384 at 401-402 (French J). Further, although the applicants did not press for relief in relation to children residing outside of Australia, those children remain represented persons in the proceeding.
By reason of those concerns, before making any declarations or orders that may be binding on a represented person, I should hear from the parties and consider whether any such orders should be made including whether the representative nature of the proceeding should be confined or continued.
Until that is done, it is appropriate that I confine any binding orders I now make to the applicants alone. I will therefore dismiss the applicants’ claim for an injunction and reserve for later consideration whether the claim for an injunction made on behalf of the represented persons should be dismissed or, alternatively, discontinued.
I will not, at this juncture, make a declaration as to the duty of care owed by the Minister which reflects my conclusions on that issue. Apart from the question of whether any declaration made should extend to any of the represented persons, the utility of any declaration and the terms of any such declaration should also be addressed by further submissions.
Additionally, I need to hear the parties on the question of any order that should be made as to the legal costs of the proceeding.
It may be that all of those issues can be addressed in writing pursuant to a timetable agreed by the parties for the exchange of submissions and determined on the papers. Alternatively, either or both of the parties may wish to be heard orally. The appropriate course is best determined after the parties have had an opportunity to consult and advise my Chambers of their preference and their available dates for a further short hearing, should such a hearing be considered necessary. I will direct that the parties consult about those issues and provide within 5 working days hereof a draft of the orders they propose.
Finally, the commendable efforts made to assist the Court in its deliberation deserve to be acknowledged. I extend my gratitude to the parties and their legal representatives for providing submissions of the highest quality and for the cooperative and efficient manner in which the proceeding has been conducted.
I certify that the preceding five hundred and twenty-one (521) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg. Associate:
Dated: 27 May 2021
SCHEDULE A
The Expert Witnesses
Professor William Steffen. Professor Steffen holds a doctorate (and two honorary doctorates) in Chemistry and is an Emeritus Professor at the Fenner School of Environment and Society, the Australian National University, Canberra. He currently acts as a Councillor of the Climate Council of Australia.
Professor Steffen has over 30 years’ experience in climate and Earth System science research and teaching. His research interests span a broad range within climate and Earth science, with an emphasis on system-level understanding of climate change, incorporation of human processes in Earth System modelling and analysis and sustainability and climate change. Over this time, Professor Steffen has made substantial contributions to the development of science policy, both nationally and internationally. To name but a few, from 1998 to 2004, Professor Steffen served as Executive Director of the International Geosphere-Biosphere Programme, an international network of scientists studying global environmental change. From 2004 to 2011, Professor Steffen was a science advisor to the Department of Climate Change and Energy Efficiency. In 2011, Professor Steffen was on the panel of independent experts supporting the Multi-Party Climate Change Committee to the Australian Government, chaired by (former) Prime Minister Hon Julia Gillard. From 2011 to 2013, Professor Steffen was the Commissioner on the Australian Government’s Climate Commission.
Within the international arena, Professor Steffen has been an author and reviewer to several IPCC assessment and special reports, including:
(a)IPCC Fourth Assessment Report (2007) Working Group I: Couplings between Changes in the Climate System and Biogeochemistry. He was the lead author on terrestrial carbon cycle section.
(b)IPCC Special Report on Land Use, Land-Use Change and Forestry (2000). This report was instrumental in establishing accounting rules for land-based carbon uptake and emissions in the context of national reporting to the UNFCCC (United Nations Framework Convention on Climate Change).
(c)Contribution to IPCC Special Report on Global Warming of 1.5°C: Chapter 1: Framing and Context.
(d)Reviews of Australian impacts sections on two IPCC Assessment reports (Working Group II).
Overall, Professor Steffen has produced over 150 publications spanning Earth System science, climate change and sustainability, including lead-authored publications in widely regarded journals such as in the Science, Proceedings of the National Academy of Sciences (USA) and the Nature journal.
Dr Karl Mallon. Dr Mallon holds a first-class Honours degree in Physics and doctorate in Mechanical Engineering. Dr Mallon has worked in the field of energy and emissions modelling and climate change physical impact analysis since 1997. This includes work for private companies, governmental bodies and international organisations. His work in this field has been recognised by the awards from the German Government and Australian climate adaption profession.
Dr Mallon currently acts as a Director at Climate Risk Pty Ltd and XDI Pty Ltd, two companies specialising in physical risk analysis and climate risk. His first company, Climate Risk Pty Ltd, assists clients in planning, costing and prioritising appropriate adaptation actions to address risks to built-assets and communities. His second company, XDI Pty Ltd, identifies climate risks by analysing supply chain nodes that provide power, water, telecommunications, gas or (road/rail) access to any analysed asset. Within this field, it has been regarded as one of the top four providers of physical risk analysis in the world. Both Climate Risk Pty Ltd and XDI Pty Ltd provide services across a broad array of national and international industries, including:
(a) utilities (water, power, transport and telecommunication utilities);
(b)banks;
(c) insurers;
(d) local government;
(e) State government (including health, environment, education, justice; strategic development, treasury and transport agencies);
(f) Federal government;
(g) non-government organisations (including environment groups);
(h) social services peak bodies;
(i) community service organisations;
(j) multi-lateral development banks.
Dr Ramona Meyricke. Dr Meyricke is a Fellow of the Institute of Actuaries who holds a doctorate in Climate Change Mitigation Research and has completed post-doctoral research in Population Ageing. Her post-doctoral research focused particularly on the methodologies for long-term forecasting of mortality rates and longevity risk and understanding the interacting role of individual-level risk factors and systematic risk factors in mortality risk.
Dr Meyricke has been a qualified Fellow of the Institute of Actuaries since 2007. Her experience as an actuary has predominantly focused on two main practice areas: superannuation and retirement income; and life insurance. Since 2019, Dr Meyricke has undertaken actuarial and analytical consulting in a range of fields involving Health, Workers’ Compensation and Compulsory Third-Party insurance. Since 2018, Dr Meyricke has contributed to several projects initiated by the Institute of Actuaries Climate Change Working Group, which have commented on the impact of climate change. She has also published several journals in this field.
Dr Anthony Capon. Dr Capon holds a Bachelor of Medicine and Bachelor of Surgery and a doctorate in Child Health. He is a Fellow of the Australasian Faculty of Public Health Medicine in the Royal Australasian College of Physicians. Dr Capon is currently the Director of the Monash Sustainable Development Institute and a Professor of Planetary Health in the School of Public Health and Preventive Medicine at Monash University. Dr Capon has extensive experience researching epidemiology and population health, particularly in the realm of climate change. He has held numerous fellowships, including with the World Health Organization and National Health and Medical Research Council. Dr Capon has acted as the inaugural Director of the Public Health Unit and Medical Officer of Health (MOH) in the Western Sydney Area Health Service and has worked in epidemiology and population health research at the Australian National University. As a member of the Rockefeller Foundation – Lancet Commission on Planetary Health, he contributed to the landmark report “Safeguarding human health in the Anthropocene epoch” published in The Lancet in 2015. Dr Capon has presented several keynote addresses and lectures, including the 2020 Redfern Oration for the Royal Australasian College of Physicians. He holds several honorary appointments across a breadth of planetary health, climate change and medical institutions and committees.
BIBLIOGRAPHY
Austin E, Handley T, Kiem A, Rich J, Lewin T, Askland H, Askarimarnani S, Perkins D, Kelly B, “Drought‐related stress among farmers: findings from the Australian Rural Mental Health Study” (2018) 209 (No 4) Medical Journal of Australia 159-165
Beach JBR, Indeterminacy: The Uncertainty Principle of Negligence (2006) 108 Australian Construction Law Newsletter 6
CSIRO and Bureau of Meteorology, State of the Climate: 2020 (2020)
Department of the Environment, Intergovernmental Panel on Climate Change (IPCC): Fact Sheet (2014)
Ebi K, Campbell-Lendrum D, Wyns A, The 1.5 Health Report: Synthesis on Health & Climate Science in the IPCC SR1.5 (World Health Organization, Geneva, 2018.)
Filkov A, Ngo T, Matthews A, Telfer S, Penman T, “Impact of Australia’s Catastrophic 2019/20 Bushfire Season on Communities and Environment. Retrospective Analysis and Current Trends” (2020) 1 Journal of Safety Science and Resilience 44-56
Herold N, Ekstrom M, Kala J, Goldie J, Evans J, “Australian climate extremes in the 21st century according to a regional climate model ensemble: Implications for health and agriculture” (2018) 20 Weather and Climate Extremes 54-68
Intergovernmental Panel on Climate Change, Climate Change 2014: Synthesis Report (2014)
McGlade C and Ekins P, “The geographical distribution of fossil fuels unused when limiting global warning to 2℃” (2015) 517 Nature 187-190
Meyricke R and Chomik R, “The Impact of Climate Change on Mortality and Retirement Incomes in Australia” (2019) The Dialogue
SCHEDULE OF PARTIES
VID 607 of 2020 Applicants
Second Applicant:
ISOLDE SHANTI RAJ-SEPPINGS
Third Applicant:
AMBROSE MALACHY HAYES
Fourth Applicant:
TOMAS WEBSTER ARBIZU
Fifth Applicant:
BELLA PAIGE BURGEMEISTER
Sixth Applicant:
LAURA FLECK KIRWAN
Seventh Applicant:
AVA PRINCI
Eighth Applicant:
LUCA GWYTHER SAUNDERS
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