Environment Minister Sussan Ley appeals historic coal mine ruling

Sussan Ley says she does not owe children a duty of care when considering the approval of a coal mine expansion in NSW.

Environment Minister Sussan Ley. Picture: NCA NewsWire/Martin Ollman

Environment Minister Sussan Ley says she does not owe children a duty of care when considering the approval of a coal mine expansion after a landmark court made the judgment this month.

Ms Ley is seeking to appeal the historic Federal Court ruling, which could pose legal roadblocks for future fossil fuel projects. The case, launched by a group of teenagers, centred on Whitehaven Coal’s plans to extend its Vickery mine in northwestern New South Wales. Earlier this month, Justice Mordecai Bromberg declared Environment Minister Sussan Ley owed children a duty of care to protect them from being harmed or killed by carbon emissions.

A notice of appeal, lodged in the Federal Court last week, laid out five grounds for disputing the conclusion. It said Justice Bromberg erred in finding that Ms Ley must take a duty of care for young people into when making the approval under the Environment Protection and Biodiversity Conservation Act (EPBCA). The appeal argued that the alleged “duty of care” was incoherent with the legislation because it would “distort the capacity of the minister” when she gives the green light to projects. It said the duty of care would force Ms Ley to give “elevated weight” to a matter the EPBCA already required her to consider.

The appeal also argued the judgment treated Ms Ley as if she was equivalent to a person who engaged in activities that are responsible for emitting carbon emissions.

It said Justice Bromberg was wrong to find that two degrees Celsius of global warming was the “best available outcome” that climate mitigation could achieve. It also noted the judge erred in finding that an average global surface temperature rise above two degrees would inevitably take the earth to a trajectory to reach four degrees Celsius.

Whitehaven Coal said it expected the government would make a decision on its Vickery coal mine extension by the end of August. A spokesman for Ms Ley said she was requesting an expedited hearing for the matter.

Ms Ley is unlikely to make the decision about the mine, as she would legally be required to consider the duty of care for young Australians.

The schoolchildren in the case argued the approval of the coal mine would contribute to carbon emissions and thereby harm their health and economic future.

Lawyer David Barnden, who represented the teenagers, vowed his team would “vigorously defend” the rights of children to not suffer harm from climate change at the hands of the federal government.

In May Justice Bromberg handed down an initial judgment and refused to grant an injunction to block Ms Ley from approving the expansion. But his judgment found that Ms Ley had a common law duty to take “reasonable care” to protect children from climate change when making decisions under the EPBCA.

Justice Bromberg said the potential harm to children from climate change could be “catastrophic” if global average surface temperature rose three degrees Celsius beyond the pre-industrial level.

His following judgment, handed down this month, specifically stated the duty of care related to harm from “emissions of carbon dioxide into the Earth’s atmosphere”.