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Court finding could shape nation’s future

Wednesday, 2nd June, 2021

By Neil Pigot

“It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the children. As Australian adults know their country, Australia will be lost and the world as we know it gone as well.
The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience - quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper - all will be greatly diminished.
Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain.
None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.
To say that the children are vulnerable is to understate their predicament.”
So wrote Australian Federal Court Justice Mordecai Bromberg in a judgement dismissing an application by a group of Australian teenagers seeking to prevent federal Environment Minister Sussan Ley from approving an extension to a coal mine in Gunnedah NSW.
Yet while the children’s action failed, Justice Bromberg’s judgement is compelling, a ruling that the environment minister owes a duty of care to Australia’s young people not to cause them physical harm in the form of personal injury from climate change. A finding that, if unchallenged, could have a profound effect on the shape of our nation into the future.
The ruling implies, in no uncertain terms, that the Australian Government has a legal responsibility not to take actions that could contribute to global warming. And the consequences of a breach of that duty of care opens the door to a claim of negligence.
Initiated by eight schoolchildren and an 86-year-old nun on behalf of all Australian children, the applicants had asked the court to prevent Environment Minister Sussan Ley from approving the Whitehaven coal project, a mine expected to produce 10m tonnes of coal annually over 26 years, enough to generate 100m tonnes of greenhouse gas emissions.
Although he didn’t stop the proposed extension going ahead, in his judgement, Justice Mordecai Bromberg agreed that Ley had a duty to take “reasonable care” not to cause Australian children personal injury when exercising her powers to grant mine approvals. He added that evidence demonstrates children are extremely vulnerable to “severe harms” caused by climate change if temperatures rose three degrees Celsius above pre-industrial levels. Harms Justice Bromberg candidly described as “largely inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest intergenerational injustice ever inflicted by one generation of humans upon the next.”
The court found that one million of today’s Australian children are expected to be hospitalised due to a heat-stress episode or through smoke inhalation as a result of increasing bushfires, that substantial economic loss will be experienced, and that the Great Barrier Reef and most of Australia’s eucalypt forest quite probably won’t exist when they grow up. Predictions the court described as “real”, “catastrophic”, and perhaps importantly from a legal perspective “reasonably foreseeable.”
In reaching the decision Bromberg heard submissions from a panel of expert witnesses that presented estimates of the health impacts of temperature rises and realistic warnings about anticipated reduced quality of life should warming continue, submissions that were tellingly accepted by both the court and the legal team charged with defending the Minister. That the evidence, which also put a conservative figure on individual financial loss, was uncontested, signals that, at least at a legal level, the financial impacts of climate change are no longer based on a vague notion of future loss, they are a tangible, quantifiable harm.
The decision follows what’s been described as “arguably the most significant climate change judgement yet”,  with a court in The Hague ordering oil and gas producer Royal Dutch Shell to reduce its carbon dioxide emissions by 45% by 2030 compared with 2019 levels via its corporate policy. In reaching its decision, the court noted that Shell had no emissions reduction targets to 2030 and that its current corporate policies to 2050 were “intangible, undefined and non-binding”.
The unprecedented ruling delivered late last week, which Shell plans to appeal, dismissed Shell’s argument that governments alone were responsible for meeting the Paris Agreement targets.
The legal decisions come as investor pressure on large polluters has been significantly dialled up. Last week, ExxonMobil, one of the world’s biggest corporate greenhouse gas emitters, was forced into a dramatic management shakeup that saw activist hedge fund, Engine No. 1, win three places on the company’s 12-person board, with founder Chris James vowing to force the company to diversify away from fossil fuels.
Formed late last year, Engine No. 1 is an example of a shift in the philosophy of capital investors whose interests are less altruistic and focussed on improving investor returns. Engine No. 1’s successful attack on Exxon was in response to the company’s poor financial performance and its failure to adapt to a decarbonised world which the hedge fund believes puts shareholder value at risk.
Meanwhile, another US oil and gas producer, Chevron, experienced an investor revolt with more than 60% of their shareholders supporting a resolution calling for the company to substantially reduce Scope 3 emissions, the pollution generated by the use of the oil and gas it produces.
And while the Dutch courts and American investors should have no say over Australian domestic policy, Shell, ExxonMobil and Chevron are among our biggest gas exporters with interests in the massive Gorgon gas project off the coast of Western Australia and the North West Shelf.
With the three major multinationals now under pressure to exit or at least scale back from fossil fuel production, the transition to renewables may become far less transitory. And with the dual momentum of governments needing to be mindful of what they approve and fossil fuels companies being pressured with respect to what they propose, the Morrison government’s gas-fired recovery may well run out of steam before it even starts. And the children will say thank you.

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