ARTICLE
19 April 2024

Court says coal mines can be approved without considering climate change

S
Stacks Law Firm

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Stacks Law Firm is a leading Australian legal service provider with more than 250 people operating locally in many Australian communities. We are committed to supporting the legal needs of everyday Australians and businesses across every stage of life.
The federal government can effectively ignore the risk that fossil fuel projects pose to the environment.
Australia Energy and Natural Resources
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In a significant legal blow to environmentalists, in 2023 the Federal Court ruled that the federal environment minister does not have to consider climate change when approving coal mines.

Environmental group claims minister did not consider climate change

The Environment Council of Central Queensland (ECoCeQ) mounted a legal challenge to minister Tanya Plibersek's assessment of two coal projects, claiming she had acted unlawfully in rejecting its request to consider the harmful impact the mines would have on climate change.

The group argued that in her assessment of an application to expand two coal mines – one in Narrabri and one at Mount Pleasant in the Hunter Valley – the minister failed to include scientific evidence that human-induced climate change was causing harm to the environment. (Please see Tanya Plibersek doesn't have to consider climate change when approving coal mines, Sydney Morning Herald, 11 October 2023.)

Ms Plibersek has not yet made a decision on the expansion of the mines. In court the minister did not dispute the impact of climate change or the need to cut anthropogenic emissions. In documents submitted to the court, she argued she could legally ignore the projects' emissions, because on their own, they won't have any significant impact.

Her submission also argued that if these projects were blocked, other projects would then proceed overseas, cancelling out any net benefit.

Government claims new climate safeguard laws force coal mines to act on net zero

Speaking after the judgement, a spokesperson for Ms Plibersek said strong new climate safeguard laws mean coal and gas projects must comply with Australia's commitment to net zero emissions. (Please see Despite a promise to escape the climate 'naughty corner', the government just scored a win against environmentalists, ABC News, 11 October 2023.)

However, a number of coal projects have been approved by the Labor government since it was elected in May 2022.

Under national environment laws such as the Environment Protection and Biodiversity Conservation Act, the minister has the power to veto major projects that would affect matters of national environmental significance, such as water resources or threatened species.

Court rejects need for minister to include scientific evidence in assessments

Federal Court Justice Shaun McElwaine rejected the argument that under the law, the minister must include scientific evidence of the impact on climate change in any assessment of applications to expand coal mines.

Instead, the judge said the minister was "not obliged to reason in the manner contended by the applicant", and it was a matter for parliament to consider whether the minister should be compelled to consider harm from polluting projects.

This decision establishes a precedent that the federal government can effectively ignore the risk fossil fuel projects pose to the environment when deciding whether or not to approve them.

However, in February 2024 it was reported that ECoCeQ has appealed the 2023 decision to the full Federal Court. (Please see Coal mine climate change case challenges the government's use of 'drug dealer's defence' on emissions, ABC News, 24 February 2024.)

Other mining projects stopped by courts following lack of consultation

Miners don't always win in court. In Western Australia offshore seismic testing for gas was stopped indefinitely after the Federal Court recently found Woodside had not properly consulted traditional owners. (Please see Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158.)

In 2022 Tiwi Islanders won a landmark case stopping gas drilling in traditional waters after the Federal Court ruled they had not been properly consulted. (Please see Tiwi Islanders win court battle with Santos over drilling in traditional waters, The Guardian, 21 September 2022.)

Michael McHugh

Planning and environment

Stacks Law Firm

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.

ARTICLE
19 April 2024

Court says coal mines can be approved without considering climate change

Australia Energy and Natural Resources

Contributor

Stacks Law Firm is a leading Australian legal service provider with more than 250 people operating locally in many Australian communities. We are committed to supporting the legal needs of everyday Australians and businesses across every stage of life.
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