Australia: Federal Court dismisses challenge to the decision by the Environment Minister to approve Carmichael coal mine.

In brief

The case of Australian Conservation Foundation Incorporated v Minister for the Environment and Energy [2017] FCAFC 134 concerned an appeal to the Federal Court of Australia challenging the lower court's decision to dismiss an application for judicial review of the Minister for the Environment's decision to approve the Carmichael Coal Mine in Central Queensland.

The Appellant appealed on the basis that the lower court had incorrectly interpreted that the Minister, in the Minister's statement of reasons, was satisfied that appropriate consideration had been given to various statutory tests under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act) in particular that an assessment of the physical impacts of climate change on the Great Barrier Reef had been completed and was acceptable.

The Court dismissed the appeal on the basis that neither the lower court nor the Minister had fallen into legal error.

The Minister approved the Carmichael Coal Mine

The Minister's initial 2014 decision to approve the Carmichael Coal Mine was set aside by consent after the proponent and environmental groups provided the Minister with new information relating to the mine's environmental impacts. The Minister approved the mine again in 2015 based on the following reasons:

  • the proposal would not have an unacceptable impact on World Heritage values or be inconsistent with Australia's obligations under the World Heritage Convention or plans for World Heritage managed property;
  • the proposal would not have an unacceptable impact on the National Heritage values of the reef or any plan prepared for the management of a National Heritage place;
  • scope one and two emissions, being those generated by the mine or the energy required to carry out the proposal, would be dealt with under existing and future arrangements;
  • scope three emissions, being those generated by overseas markets burning coal from the mine, were subject to numerous variables and would be mitigated by international multilateral environmental agreements and various control frameworks.

The Appellant applied to the Court for judicial review of the Minister's decision

The Appellant's application for judicial review relied on three grounds and sought orders to quash the Minister's decision and an injunction to restrain the Minister from taking any further steps to give effect to the decision.

Ground one alleged that the Minister made an error of law by failing to adhere to the statutory command under section 137 of the EBPC Act to not act inconsistently with Australia's obligations under the World Heritage Convention.

Ground two alleged that the Minister made an error of law in the following respects:

  • Characterising emissions from rail and shipping transport and combustion of the coal product overseas as an indirect consequence of the proposed coal mine, without applying the test under section 527E of the EBPC Act to determine if these factors represented a relevant impact.
  • Failing to comply with the requirement in section 136(2)(e) of the EBPC Act by giving inappropriate consideration to information about the likely or potential impacts of overseas emissions on protected matters.

Ground three alleged that the Minister made an error of law by finding that it was "difficult to identify the necessary relationship between the taking of the action and any possible impacts on relevant matters of national environmental significance" without first considering or applying the precautionary principle required under section 136(2)(a) and section 391 of the EPBC Act.

The Court rejected the Appellant's application

The lower court concluded that the Appellant's core proposition for judicial review was that the Minister had failed to properly consider new information regarding whether greenhouse gas emissions caused by the combustion of the mine's coal overseas were a relevant "event or circumstance" within the definition of "impact" under section 527E of the EPBC Act.

The lower court referred to the explanatory notes to the EPBC Act to identify that the purpose of section 527E was to clarify the extent to which indirect impacts must be considered and dealt with under the EPBC Act. The lower court also referred to the decision in Tarkine National Coalition Inc v Minister for the Environment (2015) 233 FCR 254 to conclude that an event or circumstance can only amount to an "impact" where it is either a direct consequence of the development or an indirect consequence substantially caused by the proponent.

The lower court rejected the Appellant's application for judicial review after finding that the Minister's statement of reasons demonstrated that the Minister had adopted the wording of section 527E including the phrase "substantial cause" to find that overseas emissions would have no relevant impact on the reef. The Minister found that the range of variables associated with overseas emissions was such that calculating their net contribution to global temperatures amounted to speculation.

The Appellant appealed the decision of the lower court

The grounds of appeal alleged that the lower court:

  • erred in interpreting the Minister's statement of reasons to include a determination as to whether or not the physical effects of climate change on the reef were an "impact" within the meaning of section 527E of the EPBC Act; or
  • alternatively, if on a proper interpretation of the statement of reasons the Minister did address whether or not the physical impacts of climate change on the reef were an "impact", that the lower court erred by failing to find that the Minister misdirected himself as to the correct question under sections 82(1), 136(2)(e) and 527E.

The Appellant contended that whilst the Minister was unable to quantify the "actual" quantity of greenhouse gas emissions generated by the transport and combustion of coal the Minister was able to calculate the "possible" quantity. The Appellant argued that, as a consequence, it was not open to the Minister to make the determination that he did being that the effect of climate change, caused by greenhouse gas emissions, on the reef was not an impact.

The Court found that the Appellant's claim was without merit

The Court determined that section 130 of the EPBC Act required the Minister to allow or refuse a proposed action on the basis that it will have, or is likely to have, an impact on a protected matter.

The Court found that whilst the Minister's statement of reasons was short it was clearly based on extensive evidence and subject to the Queensland Bilateral Agreement. The Court also recognised that the Minister was satisfied the national and international arrangements and frameworks were in place to address the scope one, two and three emissions.

The Court ultimately found that the lower court had correctly construed the Minister's decision for approving the mine. The Court saw no justification to support the Appellant's claim that the Minister did not take into account the possible impacts of overseas emissions on the level of greenhouse gases and the consequences thereof on the reef.

The Court found that the Appellant's reliance on sections 82, 136(2)(e) and 527E of the EPBC Act had lead it into error. The Court affirmed that while the Minister was required to consider overseas emissions this did not necessarily require the Minister to conduct this assessment within the boundaries of sections 82 or 527E of the EPBC Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ian Wright
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions