Environment Minister appeals ruling she must protect children from climate harm

Federal Environment Minister Sussan Ley has argued in an appeal against a landmark court ruling that she does not have a duty of care to protect Australian children from climate harm caused by the potential expansion of a coal mine.

The minister’s appeal also says the primary judge, Justice Mordecai Bromberg, erred in his findings about global temperature rise. During the Federal Court case, the scientific evidence on temperature rise was not contested by the government.

Environment Minister Sussan Ley’s appeal says a judge erred in his findings about global temperature rise.Credit: Alex Ellinghausen

A partially successful class action was brought by eight Australian teenagers against the Environment Minister to challenge a proposal by Whitehaven Coal to extend its Vickery coal mine, near Boggabri in NSW.

The teenagers argued the mine expansion would endanger their future because climate hazards would cause them injury, ill health and economic losses, and in his judgment Justice Bromberg agreed. He said 1 million Australian children would be hospitalised at least once in their life for heat stress and the Great Barrier Reef would die along with the east coast’s eucalyptus forests should climate change not be halted.

While the court dismissed the teenagers’ application in May to prevent the minister approving the coal mine extension, it found Ms Ley owed a duty of care to Australia’s young people.

New appeal documents lodged on Friday, just eight days after the court issued its declaration, detail the minister’s grounds for appeal, including that Justice Bromberg was wrong to find Ms Ley had a duty of care protect to Australian children.

“The primary judge erred in finding that the minister owed a duty to take reasonable care ... to avoid causing personal injury or death to persons who were under 18 years of age ... arising from emissions of carbon dioxide,” the appeal says.

The minister’s appeal also argues the judge erred when he found the best outcome that climate change mitigation measures could now achieve was a global average surface temperature rise of 2 degrees above pre-industrial levels.

The judge was also wrong to find that when the Earth’s surface temperature rose above 2 degrees there was an exponentially increasing risk of it being propelled into an irreversible 4 degree trajectory, the appeal documents state.

Climate scientist Will Steffen, an emeritus professor at Australian National University, said that if the government was going to argue it was still possible to keep global warming close to 1.5 degrees, it would be inconsistent with Australia’s own climate policy.

Anjali Sharma and her litigation guardian Sister Brigid Arthur.Credit: Justin McManus

“If all countries adopted Australia’s own climate policy it would take us towards 3 degrees,” Professor Steffen said. “Even on present settings we are going to go over 2 degrees.”

David Barnden, the principal lawyer at Equity Generation Lawyers, who acts on behalf of the teenagers, said the group would defend the appeal.

The teenagers were supported by Sister Brigid Arthur, an 86-year-old Brigidine nun and former teacher, who is their “litigation guardian” because they are under 18.

Lead litigant Anjali Sharma said it was an “embarrassing” stance for the government to take.

“The government should be taking decisions not to harm future generations,” she said. “The fact they are spending public money on this appeal rather than funding climate solutions is very strange.”

A spokesperson for Ms Ley said she had filed the notice for appeal and was seeking an expedited hearing.

As the matter is before the courts the minister would not comment on the details of the case.

“The minister takes seriously her responsibilities under the act to protect the environment and, in doing so, the interests of all Australians,” the spokesperson said.

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