Welcome to Eureka Street

back to site


Is the legal tide turning on climate change?

  • 14 February 2019


Late last week, the NSW Land and Environment Court refused approval for a new coal mine outside the town of Gloucester in the Upper Hunter Valley in a decision that the NSW Environmental Defenders' Office is calling a 'landmark legal win for climate and community'.

While in many ways this decision was uncontroversial — in that it merely upheld an earlier ministerial decision — Chief Justice Preston's judgment was significant in the Australian context both for its extensive reference to climate change and for his honour's clear acceptance of the science.

The impact of coal mining on climate change has often received a short shrift in Australian environmental law with the result that, until now, no coal mine has ever been refused approval on the basis of its impact of climate change.

One of the techniques that mining companies have used to achieve this favourable legal environment has been to argue for what has been called 'the drug dealer's defence' — essentially that if they don't supply coal to the market then another mine will.

This defence, coupled with other hypothetical arguments that reductions in emissions by other means (in other industries or via carbon sinks) are likely to balance out the increase in greenhouse gas (GHG) emissions associated with the mine, has been used repeatedly to successfully assert that each individual mine has no impact on climate change.

In Gloucester Resources Limited v Minister for Planning, Preston CJ thoroughly rejected both of these arguments as 'speculative and hypothetical'. In relation to the so-called drug dealer's defence, his honour found 'no assumption can be made that there would be market substitution by coal from new coal mines in other countries if the project were to be refused'. Similarly, his honour found that emissions reductions from other sources are unrelated to the development approval and 'it would not be rational to ... approve the development because greater emissions reductions could be achieved from other sources at lower cost by other persons or bodies'.

Another reason that mining has historically received a free pass when it comes to climate change is that Australian courts have repeatedly refused to consider cumulative impacts or 'Scope 3 emissions' (those produced by the transportation and combustion of coal from the proposed mine) and have even categorised the impact of mining on the climate (and, thus, the environment) as 'speculative'.


"Steffen concluded that once you accept both the science of climate change and Australia's