Moving on from Sharma: When will Judges Act?
Sofia Watt Sjöström
Building on a rising trend in climate litigation, Sharma ex rel Sister Brigid Arthur v Australia (Minister for the Environment)[i] tried—and failed—to hold an Australian government Minister accountable in tort law. Although it is disappointing, its tale is cautionary, and not a pure failure, so it offers us an opportunity to think. The three judges’ reasonings were complex, but they agreed on one thing: they, as judges, could not or should not make judgements on climate policy. In this blog, I consider their reasoning, especially its emphasis on the separation of powers. I also consider when judges might act differently and argue that moving on from Sharma requires legislative action.
1. Sharma: The Case
Sharma was a tort claim by Australian children[i] seeking an injunction to prevent the Australian Minister of Environment from authorizing a mine expansion that would contribute to pollution, and thus, global warming.[ii] The Children argued the Minister owed them “a duty to take reasonable care to avoid causing [them] personal injury [in her decision] to approve or not approve [the project]”[iii]. The trial judge recognized the duty but denied the injunction, limiting his judgment’s concrete effect yet inspiring hope that Sharma would set an important precedent nevertheless.[iv] Since the appeal, even that hope was quashed: all three judges in the Full Court refused to recognize any relevant duty of care.[v]
2. Why not judge climate policy?
Although their reasoning was complex,[vi] one message rings out consistently: this judgement would be inappropriate. In other words, judges should not, cannot, or will not, touch climate policy. This argument, likely familiar, is essentially about the separation of powers. In liberal democracies, the judiciary is just one of three government branches, whose role is, simply put, to apply the law.[vii] It should not usurp other branches’ roles. Firstly, judges lack these branches’ expertise. For instance, legislators have resources like policy advisors to inform their decisions, which must balance multiple countervailing concerns, including the interests of different groups and budget constraints.[viii] Hence, when it comes to legislation, there is no single ‘right answer’; “reasonable minds differ.”[ix] Some governments may choose to focus more on technological development, whereas others might prioritize emissions reduction at all costs. Such nuanced policy decisions differ greatly from legal judgements. Furthermore, judges have deliberately constrained roles. They are not democratically elected, and so do not represent the populace by creating laws to further a national agenda. Instead, judges interpret and apply existing legislation to ensure society functions under the rule of law, rather than the rule of power.[x] It would be inappropriate for courts to force the democratically elected government’s hand by meddling in their policy.[xi]
In Sharma, the legislative branch assigned the Minister of the Environment her power to approve (or reject) the mine extension through an environmental statute.[xii] The trial judge thought this could help ground a duty of care to Australian children and future generations impacted by environmental damage.[xiii] The Full Court disagreed, however, finding the statute entailed more limited environmental protection that did not extend to carbon emissions or their impacts on human safety, and had to be balanced with other objectives.[xiv] Ultimately, the Full Court judges felt they could not find a duty of care without distorting the statute, and thus, inappropriately meddling in the legislative domain.[xv]
3. Moving on from Sharma
Although concerns about the separation of powers are real and recurring,[xvi] this does not render judicial action on climate change impossible. Firstly, it is not clear that “reasonable minds differ”[xvii] on the climate crisis. After all, how can we talk about balancing economic, social, and environmental goals when the former two depend on the latter?[xviii] Surely judges have enough expertise to rule strong environmental policy non-negotiable. Its specific contours are another matter and could be left to the legislature. Secondly, judges may legitimately have a moral obligation to act during crises, especially when other government actors fail to do so.[xix] If their role is indeed to ensure that the rule of law trumps power, then they must keep all forms of power in check,[xx] and hence, “offer legal protection, even against the government.”[xxi] Thus, environmentalists should not merely accept that judges will not act on climate change; lawyers must present them with claims where they will.
What would such a claim look like? Experience shows that a basis in legislation can help secure judicial decisions holding government actors accountable. For instance, the Dutch decision in Urgenda[xxii] ultimately won based on codified international human rights.[xxiii] A similarly successful climate litigation claim in Germany called Neubauer[xxiv] relied on the codified German constitution.[xxv] It also challenged domestic climate legislation that was arguably more ambitious than the environmental statute in Sharma.[xxvi] Finally, it may be relevant that both the Netherlands and Germany codified the right to a healthy environment.[xxvii] This was explicitly determinative to finding a duty of care in Neubauer.[xxviii] While not mentioned in Urgenda,[xxix] that case may indicate codification’s latent, normative effects: judges’ attitude towards climate litigation is inevitably influenced by the surrounding “political and social environment.”[xxx]
Perhaps Sharma would have succeeded in a different legislative context. For example, the judges may have recognized a duty of care if the environmental statute had spoken explicitly to intergenerational equity or safety from carbon dioxide emissions. Wheelahan J might even be suggesting this in mentioning other Australian environmental legislation.[xxxi] Of course, it might also be the case that climate litigations claims are stronger outside of tort law.[xxxii] Perhaps Sharma-like arguments would be more successful under codified human rights. For this to work, new laws must be enacted. Australia has not incorporated international human rights instruments the same way as the Netherlands,[xxxiii] nor has it codified the right to a healthy environment. That does not mean that constitutional or other statutory claims are impossible in Australia, but clearly, Urgenda and Neubauer are not perfectly translatable. In sum, climate litigation may generally be strengthened by relying on legislation, but the contours of each claim must be adapted to their own legislative context.
4. Conclusion
Sharma demonstrates judges’ reluctance to act on climate change without legislative prompting, and thus proposes its own solution: legislative prompting. Frustrating though this may seem, it also reveals a crucial need for environmental action in the legislative sphere. Activism promoting bold climate reforms must accompany litigation challenging existing statutes.
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If you are interested in learning more about Sharma and its applicability to Canadian tort law, read Brandon Stewart’s piece in the McGill Journal of Sustainable Development Law, Volume 18: Sharma ex rel Sister Brigid Arthur v Australia (Minister for the Environment): A Unique “Anns-wer” to Public Authority Non-Liability for Climate Change Harms in Canada?
The author would like to thank Editor-in-Chief Jasen Erbeznik and Executive Editor Nicolas Kamran for their generous feedback, edits and advice.
[i] [2021] FCA 560 [Sharma trial].
[ii] Represented by eight children, one by the name of Sharma, whose claim was brought by a litigation representative, Sister Marie Brigid Arthur of the Brigidine Order of Victoria: ibid at 4.
[iii] Ibid at 16, 22–29. For discussion of the science behind this: ibid at 29–75.
[iv] Ibid at 491.
[v] Ibid at 513–18. For scholarly hope about the precedential value of the decision, see e.g. Jacqueline Peel & Rebekkah Markey-Towler, “Recipe for Success?: Lessons for Strategic Climate Litigation from the Sharma, Neubauer, and Shell Cases” (2021) 22 German LJ 1484 at 1494, 1497.
[vi] See Australia (Minister for Environment) v Sharma [2022] FCAFC 35 [Sharma appeal].
[vii] Harm and causation, key tort concepts, were obviously relevant. The judges grappled with the tenuous causal link between the Minister’s minute contribution to climate change and the ensuing risk of hypothetical future harm: ibid at 231, 304–26. They also found that the plaintiffs’ class was likely too broad and indeterminate: ibid at 341–42, 742–47. Moreover, each judge produced their own lengthy reasoning, but comparing them is beyond the scope of this blog post.
[viii] See Mehrdad Payandeh, “The role of courts in climate protection and the separation of powers” in Wolfgang Kahl & Marc-Philippe Weller, eds, Climate Change Litigation: A Handbook (Munich: Beck, 2021) 62 at paras 25, 27. For more complex discussion of the separation of powers principle in relation to the rule of law, see generally Denise Meyerson, “The Rule of Law and the Separation of Powers” (2004) 4 Macquarie LJ 1.
[ix] See Payandeh, supra note 8 at paras 28–32.
[x] Sharma appeal, supra note 6 at 868.
[xi] This means ensuring that laws are applied fairly and predictably: see Meyerson, supra note 8 at 1–3.
[xii] See Sharma appeal, supra note 6 at 344–46.
[xiii] Ibid at 850, 784–85. This was found to be the only basis for any relevant potential duty of care: ibid at 212, 835.
[xiv] See Sharma trial, supra note 1 at 58–60, 273, 284.
[xv] See Sharma appeal, supra note 6 at 101, 216–17, 839, 843–44.
[xvi] Ibid at 268–72.
[xvii] See e.g. La Rose ex rel Luciuk v R, 2020 FC 1008 at 54; Friends of the Earth v Canada (Governor in Council), 2008 FC 1183 at 25.
[xviii] Sharma appeal, supra note 6 at 868 [emphasis added]. However, what reasonableness entails is disputable: see e.g. Joanne Conaghan, “Tort Law and the Feminist Critique of Reason” in Anne Bottomley, ed, Feminist Perspectives on the Foundational Subjects of Law (London: Routledge-Cavendish, 1996) 47.
[xix] Both science and Indigenous knowledge challenge the notion that human society is distinct from the natural environment, suggesting their interdependence instead: see e.g. Robin Wall Kimmerer, Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge and the Teachings of Plants (Minneapolis: Milkweed Editions, 2013) at 7–10 ( “the gifts of the [natural] world stand by to catch us [but we must show it reciprocity, for today] the land shows the bruises of an abusive relationship” at 9); Maya K Gislason & Gillian A Bendelow, “Introduction” in Maya K Gislason, ed, Ecological Health: Society, Ecology and Health, 1st ed (Bingley, UK: Emerald Group, 2013) xv at xvi. The economy and society of the future are particularly dependent on the environment, since the Climate Crisis is only worsening: see generally Myles R Allen et al, “Summary for Policymakers” (2018), online: IPCC <www.ipcc.ch/site/assets/uploads/sites/2/2022/06/SPM_version_report_LR.pdf>.
[xx] See e.g. Julie Fraser & Laura Henderson, “The human rights turn in climate change litigation and responsibilities of legal professionals” (2022) 40:1 Nethl QHR 3 at 8–10 (“we call on judges to be guided by an understanding that their responsibility includes actively ensuring … [representation of t]hose most affected by climate change … [i]n the face of political bodies’ failure to address [their political] exclusion” at 8); Roger Cox, “A climate change litigation precedent: Urgenda Foundation v The State of the Netherlands” (2016) 34:2 J Energy & Natural Resources L 143 at 162 (“increasing conviction in recent years that the law and the judiciary may have a role to play in urging states and … companies to deal with the climate problem [because] politicians have put off dealing with the climate problem for far too long”).
[xxi] See Meyerson, supra note 8 at 2.
[xxii] Hoge Raad (Supreme Court), 20 December 2019, The Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda (2020), de Rechtspraak No 19/00135 (Netherlands) at “Summary of the Decision” (“This mandate to the courts to offer legal protection, even against the government, is an essential component of a democratic state under the rule of law”) [Urgenda].
[xxiii] Ibid.
[xxiv] The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR): ibid at paras 5.2.1–5.3.
[xxv] Federal Constitutional Court, 29 April 2021, Neubauer v Germany (2021) Climate Case Chart 1 BvR 2656/18, 78/20, 96/20, 288/20 (Germany) [Neubauer].
[xxvi] Ibid at paras 90, 117–123, 140.
[xxvii] Despite being challenged for its inadequate climate targets, the German legislation was still more ambitious than the legislation at issue in Sharma, insofar as it had climate-related ambitions at all: ibid at 1–6, 37 (“[t]he purpose of the [German] Act is to afford protection against the effects of worldwide climate change by ensuring that the national climate targets are reached” at 3); contra Sharma appeal, supra note 6 (“the [Australian] Act [is not] expressly concerned with greenhouse gases, global warming or climate change” at 44).
[xxviii] The Constitution of the Kingdom of the Netherlands, Government of the Netherlands, 2018, c 1, art 21 (“[i]t shall be the concern of the authorities to keep the country habitable and to protect and improve the environment.”); Basic Law for the Federal Republic of Germany, Federal Law Gazette Part III 2020, 100-1, c 2, art 20a (entitled “[p]rotection of the natural foundations of life and animals”, also mentions the state’s “responsibility towards future generations”).
[xxix] See Neubauer, supra note 25 at 117, 120.
[xxx] It appears somewhat determinative in the lower court’s reasoning: see Rechtbank Den Haag (Hague Court), 24 June 2015, Urgenda Foundation v The Netherlands (Ministry of Infrastructure and the Environment) (2015), de Rechtspraak No C/09/456689 / HA ZA 13-1396 (Netherlands) at 4.46, 4.63. However, the Dutch Supreme Court does not mention it except to summarize that the lower court found “[t]he legal obligation of the State towards Urgenda cannot be derived from Article 21 of the Dutch Constitution”: see Urgenda, supra note 22 at 2.3.1.
[xxxi] Payandeh, supra note 8 at para 25.
[xxxii] See Sharma appeal, supra note 6 at 839.
[xxxiii] Tort law has historically seen limited climate litigation successes, so its potential might not be great: see e.g. Wendy Bonython, “Tort Law and Climate Change” (2021) 40:3 UQLJ 421 at 423.
[xxxiv] See Saul Holt & Chris McGrath, “Climate Change: Is the Common Law up to the Task” (2018) 24 Auckland UL Rev 10 at 26.