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Court overturns decision on climate due diligence | Blue Mountains Gazette

The Australian government does not owe the nation’s children protection from harm from climate change, a court has heard.

The Federal Court’s full bench on Tuesday ruled unanimously in favor of an appeal by Environment Minister Sussan Ley, reversing a decision by a previous judge who had legally recognized a duty of care.

Eight high school students sued Ms Ley in 2020, seeking to block the expansion of a NSW coal mine which is expected to produce an additional 100 million tonnes of carbon emissions.

Federal Court Judge Mordecai Bromberg in May 2021 dismissed their bid to stop the expansion, but ruled Ms Ley had a duty to exercise due diligence not to harm the children during the exercise of its legislative decision-making powers regarding the mine.

Human security is a mandatory consideration in decision-making, he said.

It was hailed as a historic victory that would pave the way for legal challenges to future government decisions on coal projects.

However, Ms Ley appealed the decision and on Tuesday Judges James Allsop, Jonathan Beach and Michael Wheelahan ruled in her favour.

All agreed that a legal duty of care should not be imposed, but the judges varied slightly in their reasons.

Chief Justice Allsop concluded that decisions about mining approvals belonged to the executive branch of government – ​​the ministers at the time – and not the judiciary.

Ms Ley also controlled only a tiny contribution to global carbon emissions, he said.

“The lack of proportionality between the small increase in risk and the lack of control, and liability for all damage caused by heat waves, bushfires and sea level rise…in the future, means that the obligation … should not be imposed.”

Judges Beach and Wheelahan were also not convinced that approving the coal mine expansion would cause injury to the students.

Chief Justice Allsop, however, noted that the considerable evidence demonstrating the dangers of climate change was unchallenged.

Speaking at the Federal Court in Sydney, the students behind the case vowed to continue fighting for climate justice despite the setback.

Anjali Sharma, 17, said her family in India had long been on the front lines of the climate crisis, telling reporters of searing heat, huge downpours and pollution so thick it felt like a weighted blanket.

Now the climate crisis was also on his family’s doorstep in Australia.

“I really preach to the choir here in NSW, which two years ago was on fire and today is under water,” she said.

“Today the Federal Court may have accepted the Minister’s legal arguments over ours, but that doesn’t change the Minister’s moral obligation to act on climate change and protect young people.

“It doesn’t change the science.

“It does not put out fires or drain flood waters.”

She dismissed Allsop’s assertion from the Chief Justice Ms Ley had only a ‘minimal’ amount of control and responsibility when reviewing the broadcasts on a large scale.

“What she’s doing now in her position, in her portfolio, can really influence Australia… (and) Australia is the only one dragging its feet.”

David Barnden, the children’s lead solicitor, said the team would now consider whether to seek leave to appeal against the High Court’s “disappointing” decision.

Australian Associated Press