I. Introduction
On May 27, 2021, the Federal Court of Australia released a notable decision in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment.[1] Sharma is the latest in a line of climate change class actions that signal a positive development for youth environmental advocacy. This application for an interlocutory injunction in a proposed class proceeding marks one of the first cases where a court has recognized a novel duty of care owed by a government entity to children when making regulatory decisions under environmental protection legislation.[2]
Though noteworthy, Sharma is a superior court decision and does not set a binding precedent. As the duty of care analysis in Australia is slightly different than in Canada, the implications for Canadian courts will remain to be seen.[3]
II. Background
On September 8, 2020, eight Australian children (the “Children” or the “applicants”), represented by a litigation guardian, brought a proposed class proceeding on behalf of “children who ordinarily reside in Australia … as well as “other Represented Children”, being children residing anywhere in the world.”[4]
The claim was commenced against the Australian Minister for the Environment and an Australian mining company in relation to an application to the Minister to expand a coal mining project pursuant to the Environmental Protection and Biodiversity Conservation Act 1999 (“EPBCA”).[5] If approved, the Project would considerably increase total coal extraction from the mine site and emit 100 megatons of carbon dioxide (“CO2”) over a 26-year period into the atmosphere.
The applicants claimed that the Minister owed them a private law duty of care in the law of negligence to exercise her power under the EPBCA in a manner which would “not cause the Children harm resulting from the extraction of coal and emission of CO2 into the Earth’s atmosphere.”[6] The applicants asserted that the duty covers mental or physical injury, as well as damage to property and economic loss.[7] The applicants asserted 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.[8]
III. Recognizing a Novel Duty of Care Exists
Despite refusing the applicant’s application for an injunction,[9] the court held that the Minister does owe a duty to the applicants to exercise her powers under the EPBCA with reasonable care and not to cause them harm resulting from emissions arising from the mine expansion.
Justice Bromberg noted that a case such as this – where the law is responding to altering social conditions brought by human interference – is not as novel as it first might seem. He noted that the “deterioration of social conditions brought about by the degradation of the habitat or the environment in which people live [and rely,] has been a constant impetus for the development of the common law.”[10] He observed that these “changing social conditions” are the result of the increasing ability of humans to do harm to others, with “previously unimaginable power to harm tomorrow’s adults, [so that] the common law should now impose correlative responsibility.”[11]
On the issue of foreseeability of harm, Justice Bromberg noted that the evidence put forward by the Children made out a “sufficient link” between their “age characteristic” and the likelihood of heatwaves and bushfires in Australia.[12] The court explicitly recognized that real life implications of climate change will occur in the Children’s lifetime. Justice Bromberg applied the reasonable person test, finding that an individual “in the Minister’s position would foresee that each of the Children is exposed to a real risk of death or personal injury from heatwaves induced by climate change.”[13] He also noted the impact of increased CO2 leading to increased frequency and intensity of bushfires:[14]
Of the people living in Australia who are currently alive, it is the Children who are most likely to remain alive long enough to fully experience the wholesale destruction by fire of much of Australia’s forests in the latter part of this century. I am satisfied that each of the Children is exposed to a real risk of harm from bushfires.
Justice Bromberg further held, citing the seminal neighbour principle espoused by Lord Atkin in Donohue v Stevenson: “The consequent harm is so immense that it powerfully supports the conclusion that the Children should be regarded as persons who are “so closely and directly affected” that the Minister “ought reasonably to have them in contemplation as being so affected when…directing [her] mind to the acts…which are called in question.”[15]
With foreseeability established, the court concluded that the Minister had control and knowledge over the risk of harm noting: “Here, the Minister has substantial and direct control over the source of harm and also control which flows from the situation of responsibility which the Minister occupies. Her control is also enhanced by her knowledge of the potential consequences of the conduct within her control.”[16]
IV. The Changing Landscape for Climate Class Actions
This case has the potential to influence climate litigation across the Commonwealth and the world. Indeed, in recent years environmental litigation and climate change class actions have emerged as a feature of environmental activism in the courts.
a) Canada
In November 2018, ENvironnement JEUnesse, a Montreal-based environmental education and advocacy non-profit, commenced a proposed class action in Quebec against the Attorney General of Canada on behalf of Quebec youth aged 35 and under. The claim alleged that the Canadian government was infringing on putative class members’ fundamental rights because its greenhouse gas reduction targets were not ambitious enough to avoid dangerous climate change; nor did it have a plan that would allow it to reach the target. In Environnement Jeunesse v Attorney General of Canada,[17] Justice Morrison denied the plaintiffs motion for authorization to proceed as a class action. He expressed concern with the proposed class definition, noting that the age of the class members is an important element, and expressing concern with the possibility that millions of parents might incur the obligation to opt-out their children.[18] Further, Justice Morrison did not believe that a class action was the “appropriate vehicle” for this issue.[19] The plaintiffs appealed. The appeal was argued on February 23, 2021 and judgment is currently under reserve. Whether the decision in Sharma will impact the Quebec Court of Appeal’s analysis in Environnement Jeunesse remains to be seen.
b) The Netherlands
The Netherlands has seen a similar, and successful, class action in Urgenda Foundation v The State of the Netherlands.[20] This action was launched in 2013 against the Dutch Government, alleging that the government failed to take sufficient action to prevent climate change, and thus breached its obligations to its citizens. The District Court of The Hague released its decision on June 24, 2015, ruling in favour of the plaintiffs noting that the state acted unlawfully by failing to pursue a more ambitious emission reduction plan by the end of 2020, and that the state should reduce emissions by at least 25 percent for that goal date.[21] The decision has made its way through the Dutch appellate courts, including at the Netherlands Supreme Court, where the decision was upheld in December 2019.[22]
More recently, on May 26, 2021, in Friends of the Earth Netherlands v. Royal Dutch Shell, a class proceeding against the Shell group of companies based in the Netherlands, the District Court of the Hague ordered Shell and its related companies to reduce their CO2 emissions by at least 45% from 2019 levels by the end of 2030.
c) The United States
In the United States, a group of young people in Juliana v United States[23] commenced a class action against the U.S. government in 2015. The putative class alleged a breach of their constitutional rights to life, liberty, and property by the federal government’s contribution to global warming in enabling fossil fuel exploitation. The plaintiffs sought a declaration that the U.S. government violated the plaintiffs’ fundamental constitutional rights by substantially causing or contributing to a dangerous concentration of CO2 in the atmosphere, and an order that the U.S. government implement an enforceable national remedial plan to phase out fossil fuel emissions to stabilize the climate system. The trial in this class action initially scheduled for 2018 was stayed pending interlocutory appeals. The action was heard before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on June 4, 2019. Ultimately, the action was dismissed January 2020, on the grounds that the plaintiffs lacked standing to sue.[24] As of June 2021, further appeals are expected in Juliana.
V. Conclusion
Youth-led climate and environmental advocacy has increasingly turned to the courts to voice concerns about the cataclysmic results of human-caused changes to our environment and demand action to mitigate the potential for catastrophe. These young people are alleging that their governments are failing to prevent climate change, in breach of their rights – both civil and constitutional. Historically, class actions have been used to “modify the behaviour” of organizations, corporations, and the government. Now young people are using them as a vehicle to force governments and large transnational corporations to acknowledge the risks posed by climate change, govern, and modify their behaviour accordingly. While these actions have had a mixed success, the Australian High Court’s decision in Sharma recognizing this novel duty of care in environmental litigation and climate change class actions has the potential to influence the current cases before the court and the ones to follow.
This article was originally published in the June 2021 edition of the BCF Class Action Netletter™, published by LexisNexis Canada Inc.
[1] Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 [Sharma].
[2] Ibid at para 491.
[3] For a further examination on climate change class actions in Canada, see Jasminka Kalajdzic, “Climate Change Class Actions in Canada” (2021) 100 Sup Ct L Rev 31.
[4] Sharma, supra note 1 at para 1. At the hearing of the application, the applicants confined their claims to those brought on behalf of Australian children
[5] Environment Protection and Biodiversity Conservation Act 1999 (Cth).
[6] Sharma, supra note 1 para 92.
[7] Ibid at para 92.
[8] Ibid at para 11.
[9] Ibid at para 512.
[10] Ibid at para 117.
[11] Ibid at para 137
[12] Ibid at para 225.
[13] Ibid at para 225.
[14] Ibid at para 235.
[15] Ibid at para 237.
[16] Ibid at para 288.
[17] Environnement Jeunesse v Attorney General of Canada, 2019 QCCS 2885 [Environmental Jeunesse].
[18] Ibid at para 132.
[19] Ibid at para 140.
[20] Urgenda Foundation v The State of the Netherlands, ECLI:NL:RBDHA:2015:7196, Judgment (Dist Ct The Hague June 24, 2015) (Neth).
[21] Ibid at para 73.
[22] The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Urgenda Foundation ECLI:NL:HR:2019:2007, Judgment (Sup Ct Neth Dec 20, 2019) (Neth.).
[23] Juliana v United States, 217 F Supp 3d 1224 (D Or 2016).
[24] Juliana v United States, 947 F 3d 1159 (9th Cir 2020).
