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The Facts
Coal mine in Upper Hunter approved for 21 years
In 2006, a company began operating an open cut coal mine in the
Upper Hunter, NSW, under a consent granted by the state
government.
The approved life of the mine was 21 years, until February
2027.
In January 2016, the company lodged a development application,
seeking consent to expand the area of the mine and extend its
operations by seven years, until December 2033.
Under the proposed expansion, the mine's output until 2027
would continue to be predominantly thermal coal for domestic sale.
From 2027 to 2033, the mine would produce only high ash thermal
coal for sale on the export market.
Developments in government's climate policy
In November 2016, Australia ratified the Paris Agreement and
adopted 2005 emissions as a baseline, with a target reduction of
26-28% by 2030.
Later that month, NSW published the NSW Climate Change
Policy Framework (NSW CCPF) with the "aspirational
long-term objective" of net zero emissions by 2050.
Local association raises concerns over project and commences
legal action
In December 2016, a local not-for-profit association raised
concerns about the project's inconsistencies with government
targets to reduce greenhouse gas emissions.
In April 2017, the NSW government's Planning Assessment
Commission (PAC) published its determination report, granting
consent for the company's project to expand the mine and extend
its operations by seven years.
In August 2017, the association commenced proceedings against
the company and the PAC in the Land and Environment Court. The
association sought to restrain the company from undertaking any
development in reliance on the consent and to overturn the
PAC's decision to grant the consent.
case a - The case for the local association
case b - The case for the mining company
The law requires the PAC to consider an assessment of
greenhouse gas emissions, including downstream emissions, having
regard to "applicable" state and national policies.
(Downstream emissions are emissions caused by the actual use of
coal by the end user, as distinct from the direct emissions caused
by the company's mining operations).
The Paris Agreement and NSW CCPF are "applicable"
state and national policies, yet the PAC did not have regard to
them as it was required to do.
Further, the PAC's report had only a limited assessment of
downstream greenhouse gas emissions. This was insufficient. Taking
relevant matters into consideration calls for more than simply
adverting to them. The PAC had an obligation to give proper,
genuine and realistic consideration to downstream greenhouse gas
emissions. Yet, there is no note or record of the PAC's
consideration of these issues, nor reference in its reports to any
applicable state and national policies, programs or
guidelines.
This failure to properly consider downstream greenhouse gas
emissions is particularly troubling, since the direct emissions of
greenhouse gas from operating the coal mine pale into
insignificance when compared with the downstream greenhouse gases
emitted by end users of the company's coal.
Given that the PAC failed to properly consider an assessment of
greenhouse gas emissions, the PAC's decision to grant
development consent is invalid and must be overturned.
Contrary to what the association seems to think, the objectives
of the relevant law are to promote mining in NSW, not to shut it
down.
It's true that the law requires the PAC to consider an
assessment of greenhouse gas emissions. However, it's clear
that the PAC had such an assessment before it, and that the PAC
expressly said in its report that it took the assessment into
account. The law does not require the PAC to give reasons for its
decisions, nor to explain the weight it attributes to certain
considerations.
Further, the PAC was not required to consider the Paris
Agreement or the NSW CCPF. These policies cannot be applied to the
situation and so are not "applicable" policies. These
agreements are merely aspirational and do not provide a meaningful
guide on how to quantitively assess greenhouse gas emissions. How
can the PAC determine whether a mining project with a life to only
2033 will achieve an aspirational target of net zero-emissions by
2050? How can the PAC decide whether Australia's commitment to
a 26 to 28% reduction by 2030 is best achieved by not allowing this
coal mine in NSW, compared to all the other coal mines in
Australia, compared to car policy, compared to electricity policy,
compared to all the other questions which arise in relation to
Australia's stated target?
Even if the court concludes that the PAC was required to
consider the Paris Agreement and the NSW CCPF, the evidence before
the court makes it clear that the PAC did have regard to the
targets in those documents when making its decision.
Given that the PAC complied with the relevant law in making its
decision to grant consent, the court must dismiss the
association's case.
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