Young litigants plug the hole in climate leadership failure, and now, in Australia
With less than 100 days to go before the COP26 global climate Summit in Glasgow, and 9 years before we reach a tipping point of irreversible damage to the planet – time is not on our side. Unsurprisingly, being the ones with most to lose, young people around the world are turning to the courts  with increasing pace and urgency to try to plug the hole left by the lack of an enforcement mechanism in the Paris Agreement, and the failure of political leadership in wealthy nations to effectively regulate the climate emergency. To date, there have been upwards of 15 youth-led cases across domestic jurisdictions in both the global North and South, including before UN Committee on the Rights of the Child and the European Court of Human Rights - with mixed success.
While all the cases take a rights-based approach and some are still ongoing, they are highly meaningful, and empowering for youth advocates and civic engagement. At least three of those cases and now a fourth in Australia, are legally impactful and have far-reaching outcomes.
In the first, the Dutch Supreme Court in the Urgenda case ordered the Dutch Government to reduce its greenhouse gas emissions by at least 25% compared to 1990 by the end of 2020 based on an ‘unwritten duty of care’ as well as positive obligations to protect human rights under Article 2 & 8 of the European Convention on Human rights (ECHR).
Similarly, the Brussels Court of First Instance ruled that the Federal State and the three regions jointly and individually breached the duty of care of the 8000 citizen (Applicants ) including children, for failing to enact good climate change governance leading to a violation of the Civil Code and to violation of their human rights under the ECHR. In particular, the Court recognised that 58,000 citizens acting as co-plaintiffs had suffered direct, personal and real harm because of climate change, and thus went even further than the Dutch Court and an earlier German decision.
In September 2020, eight young people from Australia (representing children across Australia) brought a class action lawsuit in the Federal Court of Australia (“FCA”) against the Federal Minister for the Environment (“the Minister”) stating that the Minister had a common law duty of care to avoid causing future harm, specifically in relation to the carbon emissions that would result from the approval of a proposed coal mine extension project in the state of New South Wales, namely the Vickery Extension Project.
The children submitted extensive scientific expert evidence to the FCA showing that continued emissions of CO2 would continue to increase the earth’s average surface temperature, which would have the effect of increasing the risk and magnitude of the potential harm (physical injury, economic and property) to children from climate hazards such as bushfires and coastal flooding. Further, the children argued that the emission of 100 million tons of CO₂ arising from the Vickery Extension Project would materially contribute to the risk and magnitude of harm resulting from climate hazards. The scientific expert evidence was not challenged by the Minister.
The Sharma judgment
On 27 May 2021, the FCA delivered its judgment on whether the Minister has a duty of care in exercising her powers under sections 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999, finding that the Minister "must take reasonable care to not cause the Children harm from the extraction of coal and the mission of CO2 into the Earth’s Atmosphere.
Despite finding that the Minister owed the duty of care, Justice Bromberg declined to grant the injunction sought on the basis that the Applicants did not establish a reasonable apprehension of a breach of the duty of care. The judge decided that if the Minister were to approve the expansion, subject to any appeal, she would need to demonstrate that the duty of care had not been breached.
The Sharma appeal
On 23 July 2021, the Minister lodged an appeal against the Court’s decision declaring that environmental activists are waging ‘green lawfare’ on the Government. The appeal includes the ground that the primary judge erred in finding that the Minister owed the duty as found. The Minister’s appeal also argues that the judge erred in finding that 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.
Although its fate still hangs in the balance, and it looks an uphill battle, this decision may be the green shoot marking a novel duty of care owed to children in Australia to avoid climate harm, which may translate into Government policy with respect to carbon intensive projects. It may have ongoing ramifications for the private sector as they will need to take this duty of care into account in making such applications for approval, including financial decisions as to the viability of such projects.
"The time for action to address the climate crisis and prevent catastrophic impacts on children’s rights is rapidly running out. As the IPCC has stated, ‘Every bit of warming matters, every year matters, every choice matters, and so it follows, every child matters".
We applaud the efforts of the Children in daring to go where decisionmakers fear to tread.
With thanks to Intern Abdul Mohamed for his assistance with this piece.
 See Hausfeld & BIICL ‘our Future in the Balance, the roles of Courts and Tribunals in meeting the climate crisis’ https://www.hausfeld.com/en-gb/events/our-future-in-the-balance-the-role-of-courts-and-tribunals-in-meeting-the-climate-crisis/
 Hausfeld and Earthjustice act for 16 youth Petitioners in, C.S. et al v Argentina, Brazil, France, Germany and Turkey, before the UN Committee on the Rights of the Child. https://www.hausfeld.com/en-gb/news/16-young-people-file-un-human-rights-complaint-on-climate-change/
 Duarte Agostino +5 Others v Portugal & 32 Others. Hausfeld is acting for Save the Children in a third- party intervention in this case. https://www.europarl.europa.eu/doceo/document/P-9-2021-002200_EN.html
 Urgenda Foundation v The State of the Netherlands,  ECLI:NL:HR:2019:2006
 VZW Klimaatzaak v. Kingdom of Belgium et al. (Belgium, Court of First Instance, Brussels 
 In Neubauer, et al v Germany, April 2021, youth (Appellants ) successfully argued that Germany’s GHG reduction goals violated their human rights. http://climatecasechart.com/climate-change-litigation/non-us-case/neubauer-et-al-v-germany/
 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment  FCA 560 (para 491)Family Farmers and Greenpeace Germany v Germany, 00271/17/R/SP (Berlin Administrative Court)https://equitygenerationlawyers.com/cases/sharma-v-minister-for-environment/
 100 mnnes is the measurement for 100 million tons of carbon dioxide -which is the projected figure once the coal is burned. For more information on the meaning of emission symbol see https://www.ipcc.ch/site/assets/uploads/2018/02/ipcc_wg3_ar5_annex-ii.pdf
 Sussan Ley is the incumbent Minister for the Environment in Australia, appointed May 2019
 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment  FCA 560 (para 491)
 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment  FCA 560 (para 510)
 Nationally Determined Contributions are at the heart of the Paris Agreement, and indicate efforts by each country to reduce their emissions to adapt to climate change https://unfccc.int/process-and-meetings/the-paris-agreement/nationally-determined-contributions-ndcs/nationally-determined-contributions-ndcs
 UN Special Rapporteur on Human rights and the Environment , David Boyd in his amicus curia brief in support of the UN CRC Petition -see footnote 3