Climate governance and administrative law
🌏 Climate Governance and Administrative Law
I. Introduction
Climate governance refers to the set of laws, policies, institutions, and decision-making processes used by governments to manage climate change mitigation (reducing emissions) and adaptation (preparing for climate impacts).
Administrative law plays a crucial role in:
Regulating government decisions about environmental approvals, emissions, and land use;
Ensuring accountability and legal compliance by regulatory agencies and ministers;
Allowing judicial review of decisions that affect climate and environmental outcomes.
II. Key Principles of Administrative Law in Climate Governance
| Principle | Application in Climate Governance |
|---|---|
| Legality | Decisions must be within the scope of statutory powers (e.g., EPBC Act). |
| Procedural Fairness | Affected parties (e.g., communities or landowners) must have the chance to be heard. |
| Judicial Review | Courts can review decisions for legal errors, unreasonableness, or irrelevant considerations. |
| Duty to Consider Relevant Matters | Decision-makers must consider climate impacts where required. |
III. Major Case Law on Climate Governance and Administrative Law
Below are six key Australian cases that demonstrate how administrative law has shaped climate governance.
1. Sharma v Minister for the Environment (2021) FCA 560; appeal: (2022) FCAFC 35
Facts:
Eight students challenged the Minister’s decision to approve a coal mine extension, arguing that she owed a duty of care to protect children from climate change-related harm.
Decision:
Justice Bromberg (at first instance) found that such a duty of care existed under the common law. However, the Full Federal Court on appeal overturned the ruling, holding that the duty of care was novel and not supported by law.
Significance:
First attempt to ground climate risk in tort law against government action.
Court accepted climate change posed real risks, but stopped short of creating new legal duties.
Emphasized that administrative decisions must be lawful, but courts may defer on complex policy issues.
**2. Rocky Hill Coal Mine Case – Gloucester Resources Ltd v Minister for Planning (2019) NSWLEC 7
Facts:
The NSW Land and Environment Court rejected a coal mine development proposal near Gloucester due to unacceptable environmental and social impacts, including greenhouse gas emissions.
Held:
The Court ruled that the mine was not in the public interest, with significant weight placed on its climate impacts.
Significance:
Landmark case explicitly integrating climate change considerations into administrative decision-making.
Affirmed that planning authorities must consider emissions and intergenerational equity under environmental laws.
Set a precedent for climate-conscious administrative decisions.
3. Gray v Minister for Planning (2006) 152 LGERA 258 (NSWLEC)
Facts:
A challenge was brought against the Minister’s approval of a coal mine on the basis that greenhouse gas emissions were not considered in the environmental assessment.
Held:
The Court agreed that greenhouse gas emissions are a relevant consideration under the Environmental Planning and Assessment Act 1979 (NSW).
Significance:
Established that climate change is a mandatory relevant consideration in environmental impact assessments.
Reinforced the duty of decision-makers to consider long-term environmental effects in administrative processes.
4. Australian Conservation Foundation Inc v Minister for the Environment and Energy (2016) FCA 1042
Facts:
ACF challenged the approval of the Carmichael Coal Mine on the basis that it failed to properly consider the climate impacts on the Great Barrier Reef.
Held:
The Federal Court upheld the Minister's decision, ruling that the approval did not breach legal requirements, though it acknowledged the connection between emissions and reef impacts.
Significance:
Shows judicial deference to ministerial discretion under the EPBC Act.
Courts require clear statutory obligations to impose detailed climate considerations.
Demonstrates the limits of judicial review where statutes don’t explicitly require climate analysis.
5. Bushfire Survivors for Climate Action v Environment Protection Authority [2021] NSWLEC 92
Facts:
The group challenged the NSW EPA for failing to develop policies to regulate greenhouse gas emissions, arguing the agency had a statutory duty to do so.
Held:
The Land and Environment Court ruled the EPA had a statutory duty to develop environmental quality objectives, including climate change.
Significance:
Groundbreaking ruling that imposed a positive obligation on a public authority to act on climate change.
Enforces government accountability through administrative law mechanisms.
6. Minister for the Environment v Friends of Leadbeater’s Possum Inc (2021) 392 ALR 209 (Vic)
Facts:
Environmental group challenged the logging of native forests, arguing it threatened listed species and breached environmental laws.
Held:
The Federal Court found parts of the logging activities were inconsistent with obligations under the EPBC Act.
Significance:
Reinforces that climate and biodiversity concerns are interlinked in administrative decision-making.
Demonstrates courts’ willingness to enforce statutory duties where government actions affect environmental values.
IV. Emerging Legal Doctrines and Trends
| Legal Principle | Application in Climate Governance | Cases |
|---|---|---|
| Precautionary Principle | Decisions must err on the side of environmental protection where outcomes are uncertain | Rocky Hill |
| Public Interest | Courts assess whether climate impact makes a project contrary to public interest | Gloucester Resources |
| Mandatory Relevant Considerations | Emissions must be considered in EIA or planning approval | Gray v Minister for Planning |
| Positive Statutory Duties | Agencies may have obligations to create climate strategies | Bushfire Survivors v EPA |
| Intergenerational Equity | Decision-makers must consider impacts on future generations | Sharma v Minister |
V. Challenges and Limitations
Many statutes do not expressly mention climate change, limiting judicial intervention.
Courts defer to ministers on complex policy or economic trade-offs.
Administrative law can only go so far—stronger legislative frameworks are often needed.
Standing and access to justice can restrict who can challenge decisions.
VI. Conclusion
Administrative law is playing an increasingly important role in climate governance, especially as courts are called upon to review government decisions that contribute to climate change. The cases discussed show a gradual judicial shift toward:
Recognizing climate change as a legally relevant consideration;
Holding governments and agencies accountable for emissions and environmental harm;
Ensuring that decisions comply with statutory duties, including public interest and intergenerational equity.
However, legislative reform may be needed to strengthen the integration of climate obligations into administrative law frameworks more explicitly.
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