A group of teenagers want to stop the expansion of a coal mine in Australia. They have taken a class action out against the Government because we all know Governments are supposed to manage the weather better.
Well you’d be cross too, if you thought careless old folk were going to bring you slightly warmer weather!
Eight teenagers and an octogenarian nun head to an Australian court on Tuesday to launch what they hope will prove to be a landmark case – one that establishes the federal government’s duty of care in protecting future generations from a worsening climate crisis.
If successful, the people behind the class action believe it may set a precedent that stops the government approving new fossil fuel projects.
Because the last thing you’d want is democratically elected Ministers to chose how we use national resources.
As with any novel legal argument, its chances of success are unclear, but the case is not happening in isolation.
So it is an ambit claim, backed by someone with money. Who? This could be a form of lawfare, and we all know who the beneficiaries would be if this case “gets lucky”.
The case is a response to a proposal by Whitehaven Coal to extend its Vickery coalmine in northern New South Wales. The expansion of the mine could lead to an extra 100m tonnes of CO2 – about 20% of Australia’s annual climate footprint – being released into the atmosphere as the extracted coal is shipped overseas and burned to make steel and generate electricity.
“The decisions that they make right now will impact us in the future. We’re the ones who are going to have to live with the decisions, we’re going to have to raise the next generation under those decisions, and we just want a future that is guaranteed to be safe for us,”…
So teenagers want a future that is “guaranteed safe”, but think they should be able to make heating and air conditioning unaffordable for senior citizens, right now? There’s another Duty of Care here.
The case hinges on the idea that if we stop digging up our coal, other nations will copy us. Otherwise if we keep our coal underground, all we are doing is creating great reasons for other people to dig up their coal and sell it to our customers.
One Guardian commenter, Sandra says “ the climate crisis cannot be entrusted to political players. Ideology, vested interests, political donations and fear of losing seats means that the Australian Government is compromised and decisions made are invalid.” Climate must be depoliticised she demands! Too true. But she wants totalitarian rule by PhD: “It [control of the weather] must be given completely over to the climate scientists.”
Depoliticize climate science says Jo? Yes please. But who gets to pick the people who call themselves “a climate scientist”? We can’t leave that to Vice Chancellors who will sack any professor that threatens the money flow and sends a satirical email. But hey, these are big decisions with many stakeholders. So let’s ask the voters. They can pick representatives…. we could call that “Parliament”?
The Duty of Care Method for ruling a country could get right out of hand. Old folk could sue Governments for risking their health, then young workers could sue the government for destroying their jobs.
What are the teenagers arguing?
The young plaintiffs are not bringing their case under environmental law, which would be the traditional way to launch a legal challenge objecting to a coal mine.
Environmental law invites government decision-makers to balance competing concerns — such as economic benefits versus environmental impact — with no clear stipulation as to how much weight to give each relevant factor.
There is limited recourse to argue a decision is wrong because the positive and negative impacts were not given particular priority by a minister. This means decision-making on major projects is largely within the political realm.
Instead, the plaintiffs are arguing the Environment Minister shouldn’t approve the coal proposal because doing so would breach a duty of care owed by the Minister to protect them from the harmful impacts of climate change. This includes more frequent extreme weather events, and destruction of the natural systems that support human life.
The case has parallels with a landmark Dutch case, where it was successfully argued in 2019 that the Dutch Government breached its duty of care to its citizens through inadequate action on climate change.
For the Australian case to succeed, the Court will first need to consider whether a duty of care exists in Australian law. There is no statutory duty (under laws created by the parliament), so the Court would need to “find” the duty as existing in common law.
Then, the plaintiffs would need to establish that the duty would be breached by the environment minister signing off on the coal project.
Where is the Duty of Care to look after our civilisation?