May 30 - June 5, 2021: Issue 496


Students Win Landmark Climate Case. In Global First, Minister Has Duty Of Care To Protect Young People From Climate Change

SYDNEY MAY 27, 2021: 
Eight high school students have welcomed today’s landmark judgment in the Federal Court of Australia that found the Federal Environment Minister has a duty of care not to cause them harm from climate change.

The students brought the class action against Minister Sussan Ley in September 2020, asking the court to recognise the Minister has a duty to protect young people around Australia from foreseeable future climate change harms.

The students alleged that approving a major extension to the Vickery coal mine in northern New South Wales would breach the Minister’s duty. An injunction was not ordered but there will be further submissions on what the duty means for the Minister’s decision and the mine.

“I am thrilled by today’s judgement,” says Ava Princi, 17, one of the students.

“I’m thrilled because this is a global first. We understand it is the first time a Court of law, anywhere in the world, has ordered a government to specifically protect young people from the catastrophic harms of climate change.

“My future – and the future of all young people – depends on Australia joining the world in taking decisive climate action.”

“But this case is not over. While the Court stopped short of preventing the Minister from approving the Vickery mine extension today, it has ordered parties to come together to find a way forward. We are still optimistic that the climate harms from this mine will not happen.”

In Sharma and others v Minister for the Environment the Court accepted evidence brought by independent experts that carbon emissions released from mining and burning fossil fuels will contribute to wide-ranging harms to young people.

The judgment means the Environment Minister should not make decisions that harm young people, however the judge stopped short of preventing the Minister from approving the Vickery Extension Project.

The judge called upon the parties to confer on orders over the future of the proposed project.

“I feel elated by this decision,” says Laura Kirwan, 17, another student behind the class action.

“This is a victory for young people everywhere. The case was about young people stepping up and demanding more from the adults whose actions are determining our future wellbeing. Our voices are powerful and I hope this case inspires more young people to push for stronger, faster and deeper cuts to carbon emissions.

“Our futures depend on it.”

Previously: Taking The Federal 'Environment' Minister To Court: With Australian Ecosystems Collapsing, Major Rivers 'Functionally Extinct', Koalas 2nd To The Logging $ - When Will Enough Be Enough?

Will To Keep Fighting Whitehaven Is Strong After Landmark Vickery Ruling

May 27, 2021

Communities across NSW’s North West have commended eight high school students and their 86 year-old litigation guardian Sister Brigid Arthur, after a ruling was handed down today on their challenge in the Federal Court to Whitehaven Coal’s destructive Vickery Coal Extension Project.

The group argued Federal Environment Minister Sussan Ley would breach her duty to protect young people from the devastating impacts of climate change if she approved the project.

In a landmark judgement, the Federal Court today ruled the Minister does owe a ‘duty of care’ to protect Australian children from the effects of catastrophic climate change. The Court drew a direct line between the mining of coal at Vickery and worsening climate change.

The Court did not grant an injunction preventing the Minister from approving the Vickery coal mine extension, but did provide another opportunity for legal arguments about the matter next month.    

Boggabri farmer Sally Hunter said the ruling was a very important landmark because the Court had confirmed the Minister had a duty of care to consider the future wellbeing of the students when ruling on fossil fuel projects and that this particular project would worsen climate change.

“Locals in the North West would like to express their gratitude to this group of students and Sister Arthur for trying to stop the project and standing up for the future we all need to farm, to live and to prosper," she said.

“I appreciate these efforts to protect my childrens’ future too.  Burning coal from Vickery will worsen all our childrens’ future so we are pleased to stand side by side in this battle against this destructive project.

“Whitehaven’s Vickery Project, if built, would have a devastating impact on heritage, prime farmland, and the groundwater so many depend on, as well as the climate.

“Today’s ruling establishes that the Minister for the Environment has a duty of care to protect these students from the catastrophic consequences of climate change, and that coal mined from Vickery will make a “small but measurable” contribution to global warming.

“If Minister Ley approves this project, she will be harming the futures of Australian children and further contributing to making the worst impacts of global warming inevitable and irreversible. She must refuse the project.

“As well, if Minister Ley approves this project despite today's judgment, she would be locking our region into a future dominated by a finite industry that is already on the way out. 

“Workers and families ought to be able to expect the government to deliver jobs that will last beyond a few years.  Now is the time to shift to renewables.”

More information:

  • If built, the coal burned from the Vickery Extension Project would result in 100 million tonnes of carbon emissions over the next 25 years. 
  • While Whitehaven refers to the Vickery Project as an “extension”, this is misleading because the original mine was never built - it is an expansion on top of an approved application to build a mine in the same location.
  • The mine, if built, would be located on the historic property “Kurrumbede” which was the inspiration for several Dorothea Mackellar poems including the famous “My Country”. There are fears blast activity at the mine will harm the historic homestead and outbuildings.

In a landmark judgment, the Federal Court found the environment minister has a duty of care to young people

AAP Image/James GourleyAuthor provided
Laura SchuijersThe University of Melbourne

This morning, the Australian Federal Court delivered a landmark judgement on climate change, marking an important moment in our history.

The class action case was brought on behalf of all Australian children and teenagers, against Environment Minister Sussan Ley.

Their aim was to prevent Ley from possibly approving the Whitehaven coal mine extension project, near Gunnedah in New South Wales. They argued that approving this project would endanger their future because of climate hazards, including causing them injury, ill health, death or economic losses.

The court dismissed the application to stop the minister from approving the extension. But that’s just the beginning.

Before making those orders, the court found a new duty it never has before: the environment minister owes a duty of care to Australia’s young people not to cause them physical harm in the form of personal injury from climate change.

‘Australia Will Be Lost’: The Court’s Moving Findings

The court considered evidence in the case from the Intergovernmental Panel on Climate Change, CSIRO, the Bureau of Meteorology, and globally renowned ANU climate scientist Will Steffen.

In a tear-jerking moment during the Federal Court’s live-streamed summary, the court found that one million of today’s Australian children are expected to be hospitalised because of a heat-stress episode, that substantial economic loss will be experienced, and that the Great Barrier Reef and most of Australia’s eucalypt forest won’t exist when they grow up.

It found this harm is real, catastrophic, and – importantly from a legal perspective – “reasonably foreseeable”. In decades past, courts have considered climate change to be a “speculative”, “future problem”.

That is no longer the case. The court concluded, in a moving paragraph from the written judgment:

It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the children. As Australian adults know their country, Australia will be lost and the world as we know it gone as well.

The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished.

Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain.

None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.

To say that the children are vulnerable is to understate their predicament.

Establishing A New Duty Of Care

The children took a novel route in asserting the federal environment minister owed them a duty of care. A duty of care means a responsibility not to take actions that could harm others. A duty of care is the first step in a claim of negligence.

A similar duty was found in the Netherlands in 2015, as a global first. In 2019, the Supreme Court upheld that duty – the Dutch government owed it citizens a duty to reduce emissions in order to protect human rights.

Other cases around the world were inspired by that success, including the one decided in Australia today.

Read more: 'A wake-up call': why this student is suing the government over the financial risks of climate change

The court today didn’t say the minister has a duty to stop all coal projects of any size, as it was only considering the Whitehaven extension project. But this is still hugely significant.

Australia has been repeatedly criticised on the global stage for its stance on new coal and climate change more generally. Now, we may find the decisions made by its environment ministers could amount to negligent conduct.

The Buck Doesn’t Stop At Governments

Back in the Netherlands, something else significant happened this week — the world learned the buck doesn’t stop at governments.

In what’s been described as “arguably the most significant climate change judgement yet”, a court in The Hague ordered Royal Dutch Shell, a global oil and gas company, to reduce its carbon dioxide emissions by 45% by 2030 compared with 2019 levels, via its corporate policy.

This could have far-reaching consequences for oil and gas companies all over the world, including in Australia.

So now we have a dual momentum — governments need to be careful what they approve, and fossil fuels companies need be careful what they propose.

Putting The Minister On Notice

It’s important to recognise Ley hasn’t made a decision yet to approve the coal mine extension. The young Australians were seeking to stop her from approving it, and in that they didn’t succeed.

However, her responsibility to young people has now been formally recognised by the court.

Today’s children are vulnerable to climate change and they depend on the environment minister to protect their interests. We don’t know yet if the minister will approve the mine extension, or if she does, whether that means she has breached her duty to the children. But we do know how significant the harm from climate change will be.

What’s more, in 2019, a NSW court confirmed now is not the time to be approving new coal, and every coal mine counts.

Today’s judgement opens the door for future litigation if the minister is not careful about approving projects that could harm the next generations of Australians.

But importantly, it puts the federal environment minister on notice — while political terms might be only short, decisions now have intergenerational consequences for the future.

Short-term financial gain can have detrimental consequences for the health and economic wellbeing of those who can’t vote yet.

Read more: These young Queenslanders are taking on Clive Palmer's coal company and making history for human rights

This story is part of a series The Conversation is running on the nexus between disaster, disadvantage and resilience. You can read the rest of the stories here.The Conversation

Laura Schuijers, Research Fellow in Environmental Law, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Climate change will cost a young Australian up to $245,000 over their lifetime, court case reveals

Liam PhelanUniversity of Newcastle and Jacquie SvensonUniversity of Newcastle

The Federal Court today dismissed a bid by a group of Australian teenagers seeking to prevent federal environment minister Sussan Ley from approving a coalmine extension in New South Wales.

While the teens’ request for an injunction was unsuccessful, a number of important developments emerged during the court proceedings. This included new figures on the financial costs of climate change to young Australians over their lifetimes.

An independent expert witness put the loss at between A$125,000 and A$245,000 per person. The calculation was a conservative one, and did not include health impacts which were assessed separately.

The evidence was accepted by both the federal government’s legal team and the judge. That it was uncontested represents an important shift. No longer are the financial impacts of climate change a vague future loss – they’re now a tangible, quantifiable harm.

Three teens involved in the case embrace outside the Federal Court
The Federal Court dismissed the teens’ request for an injunction against a mine. James Gourley/AAP

Calculating Climate Costs

The case involved a proposed extension to Whitehaven’s Vickery mine near Gunnedah in northwest NSW. The expansion would increase the total emissions over the life of the mine to 366 million tonnes.

To help in its deliberations, the court called on an independent expert witness, Dr Karl Mallon, to estimate the extent to which climate change would harm the eight young Australians aged 13 to 17, and by extension all children in Australia.

Mallon is chief executive of Climate Risk, a consultancy specialising in climate risk and adaptation software which advises governments and businesses around the world. This is the first time anywhere in the world this technique for quantifying harm in climate litigation has been applied and accepted.

Mallon first assumed a level of ongoing greenhouse gas emissions, with reference to standard scenarios used by the Intergovernmental Panel on Climate Change (IPCC). The scenarios range from futures with ambitious emissions reductions to those with very little.

So Mallon used the IPCC’s high-end emissions scenario known as RCP8.5 - the only one consistent with increasing coal production.

Second, Mallon drew on atmospheric modelling to provide projections for Australia on climate effects such as changes in temperature and rainfall. He then quantified the financial and health costs of those changes across three “epochs”, or time periods, in the futures of young people today.

coal plant with emissions from chimneys
The proposed mine expansion would mean increased coal production, and emissions. Shutterstock

Epoch 1: Loss Of Property Wealth

The first epoch spanned the decade to 2030. Mallon limited his analysis to how climate change will affect housing markets, leading to the loss of family property wealth.

Some homes are particularly vulnerable to extreme weather and climate risks such as bushfires, flooding, coastal inundation, cyclones and subsidence. Mallon’s modelling found about 5% of family homes would be affected damaged by climate change and associated extreme weather events this decade.

Already in some areas insurance premiums are becoming unaffordable and the problem will likely worsen as climate change unfolds. This will reduce the market value of high-risk properties.

Mallon estimated an average loss to the value of family homes by 2030 at about A$40-85,000 per child.

Home burnt to rubble by fire
Fire risk will make some homes uninsurable. James Gourley/AAP

Epoch 2: Reduced Earnings

This epoch spanned the years 2040 to 2060, when the applicants would be aged between 20 and 58 years. This part of Mallon’s analysis focused first on loss to prosperity – how climate change would affect a young person’s ability to work.

On hot days, the body must expend extra energy dissipating heat (usually by sweating). As the International Labour Organisation has noted, exposure to these conditions for extended periods is risky, and to endure them people must drink water and take regular breaks, leading to lower productivity.

Rising temperatures under climate change will increase the number of days where the ability to work outside safely will be hampered. Mallon found around 30% of today’s children will work in climate-vulnerable jobs, such as agriculture and construction.

People in these jobs will be less productive, and the cost to employers will eventually be passed to employees through lower wages. Mallon estimated this means a loss of about A$75,000 over a young person’s working life.

Climate change and associated extreme weather will also disrupt the infrastructure businesses rely on, such as electricity, telecommunications and transport. Again, these productivity losses will eventually be reflected in employee wages.

In Mallon’s opinion, repeated extreme weather damage to business continuity will lead to an estimated average A$25,000 annual loss per person over the working life of a child today.

Climate change will also deliver general “hits” to the economy. Mallon’s analysis here focused only on agricultural and labour productivity, and drew on existing research to estimate losses of about A$60,000 per person over their lifetimes.

The bottom line? Mallon’s partial, conservative calculations found today’s children will forego between A$125,000 and A$245,000 each due to the climate impacts noted above. He puts the most likely cost at around A$170,000 for each child.

Three girls wade through floodwaters
Natural disasters such as flood and fire will lead to economic disruption. Tracy Nearmy/AAP

Epoch 3: Risks To Health

The third epoch spanned 2070 to 2100, when today’s young people will be in the later stages of their lives. Here, Mallon’s analysis focused on the health impacts of higher temperatures. These will lead to increased heat stress, ambulance call outs, presentations to emergency departments and hospitalisations.

Older people are more vulnerable to the health effects of higher temperatures, and also more likely to die. Mallon found one in five of today’s children will likely be hospitalised due to heat stress in their senior years.

Act Hard And Fast

In Australia and around the world, people concerned about climate change are increasingly using litigation in a bid to force governments to act.

This means we can expect to quantification of the financial costs of climate change being presented more often in our courts.

Mallon’s calculations do not cover all harm that will be caused by climate change – only that for which detailed accessible modelling exists. The full financial and health costs will inevitably be far greater than the scope of his assessment.

Global emissions must urgently be cut to net-zero to avert the most disastrous climate change impacts. The arguments in favour of radical mitigation action, including the personal financial risks, grow ever-more compelling by the day.

Read more: Climate change is resulting in profound, immediate and worsening health impacts, over 120 researchers say

This story is part of a series The Conversation is running on the nexus between disaster, disadvantage and resilience. You can read the rest of the stories here.The Conversation

Liam Phelan, Senior Lecturer, School of Environmental and Life Sciences, University of Newcastle and Jacquie Svenson, Clinical Teacher/Solicitor, University of Newcastle

This article is republished from The Conversation under a Creative Commons license. Read the original article.