Environmental Duty of Care: Current, Future and Overseas Developments in the Recognition of the Duty

The concept of an ‘environmental duty of care’ is gaining increasing attention both in Australia and internationally, as governments, corporations and courts grapple with the impacts of climate change.  In this paper, Principal, Keely Graham, and Paralegal, Ryan Janu, explore the evolution of environmental duty of care, examining the current standing in Australian law, overseas developments and the potential future recognition in Australia.

The doctrine of ‘duty of care’ refers to the requirement of an individual to adhere to a standard of reasonable care to not cause foreseeable harm to others or their property. The doctrine’s roots are underpinned in the law of negligence, which ‘cannot arise until it is established that the person did owe some duty to the person who seeks to make him or her liable for that negligence’.[1] The environmental duty of care seeks to extend this ‘duty’ to corporations and governments to protect affected individuals from the effects of climate change.[2]  It seems that the extension of such duty of care to the environment has not yet occurred in Australia, as highlighted by the appellate decision in Sharma.[3]

The appellate decision in Minister for the Environment (Cth) v Sharma (2022) (Sharma) highlights the current stance of the judiciary on recognizing an environmental duty of care.[4] Justice Bromberg in his initial decision in Sharma held that a duty of care was owed by the Minister for the Environment to protect Australian children from the effects of climate change.[5] However, the Full Federal Court reversed the decision and ‘boiled down’ its reasoning upon two points of contention. Firstly, the establishment of an environmental duty of care ‘would call forth at the point of assessment of breach the need to re-evaluate, change or maintain high public policy, the assessment which is unsuited to decision by the judicial branch’.[6] Secondly, the establishment of an environmental duty of care results in challenges of grounding a clear and direct connection.[7]

Overseas authorities in common law systems provide an insight into the potential ramifications and benefits of the recognition of an environmental duty of care.

The common law case of Ranjitsinh et al v Union of India et al [8] demonstrates the shift in climate litigation by establishing (in India) a new constitutional right to ‘be free from the adverse effects of climate change’.[9] The Supreme Court of India drew on the ‘right to life and personal liberty’ and ‘the fundamental right to equality’ citing Articles 14 and 21 of the Indian Constitution, respectively.[10]

Similarly, cases under the Netherlands civil law system raise important considerations of the environmental duty of care in the context of climate litigation. Urgenda Foundation [11] was litigated on behalf of 900 Dutch citizens against the Dutch government regarding insufficient actions to prevent climate change by curtailing carbon dioxide emissions.[12] The Supreme Court of the Netherlands found the Dutch government in breach of the ‘right to life’ and protection of ‘the right to private life, family life and home’ under Article 2 and Article 8 of the European Convention on Human Rights (EHCR).[13] The court affirmed the existence of an environmental duty of care and established a government’s responsibility to protect its inhabitants from climate change.[14] Royal Dutch Shell [15] then extended the traditional environmental duty of care established in Urgenda Foundation [16] to private corporations.

Despite Australia not having a recognisable bill of rights, all three abovementioned cases provide convincing arguments for the need for accountability of corporations and governments for the effects of climate change and the establishment of an environmental duty of care.

Sharma highlights the Australian judiciary’s reluctance to impose an ‘environmental duty of care’ without the introduction of legislative reforms, even though such developments overseas have gained traction. Senator David Pocock lead arguments for this legislative reform through a range of proposed legislative amendments to the Climate Change Bills 2002.[17] However, the amendments failed so there is no Australian legislative recognition of such a duty.[18] Instead, consistent with recent decisions in India and the Netherlands, recognition of a duty to protect Australians from foreseeable climate change may arise in currently litigated cases such as Pabai and Guy Paul Kabai v Commonwealth of Australia and possible future actions.

[1] Le Lievre v Gould [1893] 1 QB 491, [497].

[2] Romy Greiner, ‘Environmental Duty of Care: From Ethical Principle Towards a Code of Practice for the Grazing Industry in Queensland (Australia)’ (2014) 27 Journal of Agriculture and Environmental Ethics 527, 530 .

[3] Minister for the Environment v Sharma (No 2) [2022] FCAFC 65, [17].

[4] Ibid.

[5] Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (2021) FCA 560, [513].

[6] ‘Minister for the Environment v Sharma [2022] FCAFC 35 – Summary’, Federal Court of Australia (PDF, 15 March 2022), 2.

[7] Ibid.

[8] M.K. Ranjitsinh & Ors. v. Union of India (2024) INSC 280.

[9] Ibid, [27].

[10] Ibid.

[11] Urgenda Foundation v The State of the Netherlands No 19/00135 (20 December 2019).

[12] Dalia Palombo, ‘Business, Human Rights and Climate Change: The Gradual Expansion of the Duty of Care’ (2024) Oxford Journal of Legal Studies 1, 23.

[13] M.K. Ranjitsinh & Ors (n 8).

[14] Urgenda (n 11), [73].

[15] Milieudefensie and Others v. Royal Dutch Shell PLC and Others, case number C/09/571932, The Hague District Court, Judgment of 26 May 2021.

[16] Urgenda (n 11).

[17] Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth).

[18] Lisa Cox, ‘Pocock seeks to impose duty of care on Australian government over climate harm’, The Guardian (online), 31 July 2023 <https://www.theguardian.com/australia-news/2023/jul/31/pocock-seeks-to-impose-duty-of-care-on-australian-government-over-climate-harm>.