‘Duty of Care’ about the environment is up for debate again in the Australian courts, unfortunately.

In 2020, eight student activists took Australia’s Environment Minister Sussan Ley to court to try to stop her from approving the expansion of a controversial coal mine. They didn’t manage to stop the expansion, but what they won, when the case concluded in 2021, was a ruling that Ley, and any future Environment Minister, had a personal responsibility for the environmental harm resulting from their decisions. A duty of care.

The judge in that case, Justice Mordy Bromberg, ruled that the evidence in the case showed that the harm which could result from Ley’s decisions “may fairly be described as catastrophic, particularly should global average surface temperatures rise to and exceed 3C beyond the pre-industrial level”.

“Perhaps the most startling of the potential harms demonstrated by the evidence before the court, is that one million of today’s Australian children are expected to suffer at least one heat-stress episode serious enough to require acute care in a hospital,” Bromberg said.

He ruled that the Environment Minister had a common law duty to take reasonable care not to cause any children personal injury through the use of their powers under the Environment Protection and Biodiversity Conservation (EPBC) Act.

He did not, at the time, rule that her approval of the mine extension constituted a breach of that duty of care.

Unfortunately, a panel of three Federal Court judges reversed that ruling on Tuesday, calling Blomberg’s decision ‘beyond the evidence.’

“The Federal Court today may have accepted the minister’s legal arguments over ours, but that does not change the minister’s moral obligation to take action on climate change and to protect young people from the harms that will bring,” said one of the original plaintiffs, seventeen-year-old Anjali Sharma, outside the Sydney court. “It does not change the science. It does not put out the fires or drain the floodwaters”

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