By Larissa Isakov, University of Sydney Law School
The Urgenda decision1 was hailed as a landmark victory for the climate.2 Running from 2015 to 2020, this case signalled the first time that a sovereign government was held accountable for not doing enough at a policy level to reduce the state’s emissions, where the Dutch government was held to owe its citizens a legal duty to prevent dangerous climate change.3 Given its ground-breaking nature, Urgenda was a significant victory for everyday citizens seeking to hold their governments to account for climate action.
How, then, has Urgenda been received in Australia? While the case was indeed a monumental victory, we have not seen the same success with Urgenda-style litigation in Australia. In fact, the Urgenda line of reasoning was rejected quite recently in the Sharma litigation. Contrary to the judgment at first instance, where the Federal Environment Minister was held to owe a legal duty to protect Australian children from climate harm,4 the Full Federal Court unanimously overturned the finding and held that the Federal Environment Minister did not owe such a duty.5
Since the Full Federal Court decided in the way it did, it might be said that an ‘Australian Urgenda’ is now out of reach. Although the appellate decision is a setback for many, the Sharma decision does not entirely spell the end of Australia having its own Urgenda. This article explores why.
In 2015, the Urgenda Foundation joined with 900 Dutch citizens to sue the Dutch government in negligence, where they alleged the State’s current action on reducing carbon emissions was insufficient to meet emissions reduction obligations under international climate agreements. As a signatory to the United Nations Framework Convention on Climate Change (UNFCCC)’s Copenhagen Accord and Cancun Agreements, the Netherlands had pledged to reduce its emissions by 25-40% below 1990 levels by 2020.6 Although both agreements predated the Paris Agreement, the targets imposed were nonetheless widely endorsed as being necessary to avoid catastrophic climate change.7
The Court accepted that the State’s emissions reduction schemes would only lead to a 14-17% reduction in emissions which would fall short of the 25% minimum required.8 As a result, the claimants successfully argued the State was negligent in failing to reduce its emissions in line with the 25-40% target imposed by law, and that the State owed Dutch civil society a duty of care to mitigate its emissions.
The Urgenda ruling was monumental because it was the first time a sovereign government was held liable in negligence for insufficient emissions reduction.9 The decision pursues an ‘accountability’ line of reasoning where the government was held accountable for its conduct more broadly as opposed to simply challenging one-off governmental decisions.10 All of this is not to mention that of every possible institution one can think of, accountability was imposed by the judiciary. Typically, the judiciary has been reluctant to intervene on matters of environmental policy because climate change has often been regarded as a ‘political issue’ on which the judiciary should exercise restraint.11 Urgenda clearly goes against this trend and has recognised that Parliamentary sovereignty is not a sufficient justification to preclude courts from deciding on matters related to climate change.
Typically, the judiciary has been reluctant to intervene on matters of environmental policy because climate change has often been regarded as a ‘political issue’ on which the judiciary should exercise restraint. Urgenda clearly goes against this trend.
This line of reasoning has been the subject of negative judicial reception in Australia. Although the courts in the Netherlands have extended this line of reasoning to corporations in 2021’s Shell decision,12 where Shell was ordered to pursue more aggressive emissions reduction targets to meet its Paris targets,13 Australia has been reluctant to follow these trends.
The recent Sharma litigation in Australia is illustrative of such a point. The decision was considered in light of the Minister’s decision to approve a coal mine in northern New South Wales which was estimated to produce an estimated 100 million tonnes of CO2 emissions over its lifetime.14 There, the Full Federal Court held that the Federal Minister for the Environment did not owe a duty of care in negligence to the applicant children to exercise their statutory powers under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) to not cause climate harm.15
While there were several reasons behind the court’s ruling, a significant consideration was that the scope and content of the purported duty of care involved ‘core’ policy considerations that were unsuitable for consideration in the courts.16 Chief Justice Allsop agreed with similar remarks made by the judiciary in New Zealand that courts are ill-equipped to deal with the myriad of scientific, social and economic considerations that are necessary to consider when making ‘good or bad’ decisions about reducing emissions.17
This deviates from the line of reasoning in Urgenda where the court reasoned that the judiciary was merely holding the Dutch government to account for their legal obligations.18 The court justified this view on the basis that it was fundamental to the rule of law that courts can review decisions made by public authorities irrespective of their political ramifications.
Given the divergence in judicial opinion, the issue may be decided differently in future cases as the threats flowing from climate change mount.
While this might seem deflating to an Australian audience, this is not to say that the Urgenda line of reasoning will never succeed in Australia. Firstly, one should note divided judicial opinion in the Sharma litigation itself. Although Chief Justice Allsop held that the duty involved policy matters that were not appropriate for judicial determination, Justice Beech did not believe that policy questions should preclude the court from recognising the duty.19 Given the divergence in judicial opinion, the issue may be decided differently in future cases as the threats flowing from climate change mount.
Furthermore, the decision is still ground-breaking in highlighting the potential implications of climate cases for governments. At the very least, the Sharma litigation has started a ‘judicial conversation’ about the extent to which the judiciary should intervene on matters that may impact climate policy. This conversation will only be continued in the ongoing Pabai litigation,20 where Torres Strait Islanders have brought a claim against the Australian government alleging the government owes a legal duty to protect them against climate harm.21
Only time will tell whether Australian courts will follow Urgenda. For now, it is fair to say that an Australian Urgenda is still on the table.
This article is part of the SEI Student Series on Climate Futures.
Larissa Isakov is studying a combined Law/Commerce degree and currently holds a Bachelor of Commerce with a major in Business Law. Throughout her studies, she has developed a passion for environmental litigation. Her current academic area of interest involves researching how claimants can pursue negligence claims against governments and companies for climate harm.
Header image: beech forest on grassy meadows in mountains at sunset by Mike Pellinni via Shutterstock, ID: 1064119019.
1. Urgenda Foundation v Netherlands (Ministry of Infrastructure and the Environment) C/09/456689/HA ZA 13-1396 (24 June 2015); The State of the Netherlands (Ministry of Infrastructure and the Environment) v Urgenda [Hague Court of Appeal] C/09/456689/HA ZA 13-1396 (9 October 2018).
2. Isabella Kaminski, ‘Dutch Supreme Court Upholds Landmark Ruling Demanding Climate Action’, The Guardian (online, 21 December 2019) <https://www.theguardian.com/world/2019/dec/20/dutch-supreme-court-upholds-landmark-ruling-demanding-climate-action>.
3. Urgenda Foundation, ‘Landmark Decision by Dutch Supreme Court’ (online, 2022) <https://www.urgenda.nl/en/themas/climate-case/>.
4. Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment  FCA 560 .
5. Minister for the Environment v Sharma  FCAFC 35, - (Allsop CJ) (‘Sharma Appeal’).
6. Urgenda Foundation v Netherlands (Ministry of Infrastructure and the Environment) C/09/456689/HA ZA 13-1396 (24 June 2015) [4.31(ii)].
7. Ibid [4.31(vi)].
8. Ibid [4.31(v)].
9. Urgenda Foundation, ‘Landmark Decision by Dutch Supreme Court’ (online) <https://www.urgenda.nl/en/themas/climate-case/>.
10. Jacqueline Peel, Hari Osofsky, and Anita Foerster, ‘Shaping the ‘Next Generation’ of Climate Change Litigation in Australia’ (2017) 41(2) Melbourne University Law Review 793, 803.10.
11. Jacqueline Peel and Hari M Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press, 1st ed, 2015) 168, 273.
12. Milieudefensie et al v Royal Dutch Shell PLC (2021) [Hague Disttrict Court] C/09/571932/HA ZA 19-379 (26 May 2021).
13. Ibid [5.3].
14. Jillian Button et al., ‘Australian and Dutch Courts Find Climate-Related Duties of Care in Sharma and Shell’, Allens Linklaters (online) <https://www.allens.com.au/insights-news/insights/2021/06/australian-and-dutch-courts-find-climate-related-duties-of-care-in-sharma-and-shell/>.
15. Sharma Appeal (n 5)  (Allsop CJ),  (Beach J),  (Wheelahan J).
16. Ibid - (Allsop CJ).
17. Ibid , , citing Smith v Fonterra Co-operative Group Limited  NZCA 552 , .
18. Louise Camenzuli, Julia Green and Max Newman, ‘Sharma Appeal Decision: End of the Road for Novel Duty of Care?’, Corrs Chambers Westgarth (online, 16 March 2022) <https://www.corrs.com.au/insights/sharma-appeal-decision-end-of-the-road-for-novel-duty-of-care>.
19. Samantha Murphy and Emily Dunford, ‘The Federal Court Appeal in Sharma: What Does it Really Mean for Government Decision Makers’, Maddocks (online, 28 March 2022) <https://www.maddocks.com.au/insights/the-federal-court-appeal-in-sharma-what-does-it-really-mean-for-government-decision-makers>.
20. Pabai Pabai & Anor v Commonwealth of Australia VID622/2021.
21. ‘Pabai Pabai and Guy Paul Kabai v Commonwealth of Australia’, Climate Case Chart (online, 2021) <http://climatecasechart.com/non-us-case/pabai-pabai-and-guy-paul-kabai-v-commonwealth-of-australia/>.