Is the legal tide turning on climate change?



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'.

A recent photo taken on a site visit to the Gloucester mine.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 commitments under the Paris Agreement, it follows that no new coal mine can ever be approved."


In contrast, Preston CJ's judgment not only accepted the relevance of cumulative impacts and Scope 3 emissions, but also quoted extensively from the expert scientific evidence of Professor Will Steffen, an earth systems scientist from the Australian National University, Senior Fellow of the Stockholm Resilience Centre and member of the Climate Council of Australia.

In his expert evidence, Steffen emphasised that 'most of the world's existing fossil fuel reserves — coal, oil and gas — must be left in the ground, unburned, if the Paris accord climate targets are to be met'. He went on to assert that 'an obvious conclusion that follows from this fact is that no new fossil fuel development is consistent with meeting the Paris accord climate targets'.

Ultimately, Steffen concluded that once you accept both the science of climate change and Australia's commitments under the Paris Agreement, it follows that no new coal mine can ever be approved. Unfortunately, this approach was not completely accepted by Preston CJ. Instead, his honour preferred a more contextual approach that considered the 'GHG emissions of the development and their likely contribution to climate change and its consequences, as well as the other impacts of the development'.

In taking this more contextual approach, his honour considered other negative impacts of the proposed Rocky Hill coal project, including noise, light and dust pollution, and, interestingly, the impact of the mine of people's sense of place and belonging (particularly including the impact of the mine on the culture and country of local Aboriginal people).

In this context, Preston CJ also considered arguments from the mining company regarding the potential economic benefits of the mine for the local community. Again, in contrast to past legal decisions around mining in Australia, his honour adopted a critical approach to the claims made by the mining company and ultimately determined that the claimed economic benefits were 'uncertain and in any event substantially overstated' and did not outweigh the negative impacts of the project, particularly when issues of distributional equity were taken into account.

So what does this mean for the future of coal mining in Australia? Possibly not very much. After all, this judgment was merely upholding an existing decision of the Minister.

Nonetheless, through its clear acceptance of the science of climate change, the urgency of immediate mitigation actions, and the relevance of 'downstream' impacts, and its rejection the nonsense of the drug dealer's defence, this judgment could well create a hugely positive precedent for the next controversial mining case that comes before the Land and Environment Court.



Cristy ClarkDr Cristy Clark is a lecturer at the Southern Cross University School of Law and Justice. Her research focuses on the intersection of human rights, neoliberalism, activism and the environment, and particularly on the human right to water.

Topic tags: Cristy Clark, climate change, Paris agreement, coal



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Existing comments

I certainly hope the legal tide on climate change is turning in Australia. The tide of social opinion has certainly turned. Climate action is now a major factor in elections, as seen by the by-election win by Keryn Phelps in Malcolm Turnbull's former seat. School children have also been striking on the climate issue. They are already set to inherit a very badly damaged planet. I suggest readers go to the Climate Council website and read some of their Reports. We have only about 12 years to turn the warming trend around and it's sad to see Australia's emissions still rising, as they have been since the axing of the carbon tax. The world is already seeing many more extreme weather events. On the home front, we have the north Queensland floods, the fierce forest forest destroying 1000-year old trees in Tasmania's alpine country, a Great Barrier Reef that is about half dead and millions of dead fish in the Murray Darling River system. Most Australians aren't fools and can see through the antics of politicians who gloat over a lump of coal brought into federal Parliament!

Grant Allen | 15 February 2019  

The Rocky Hill project is not to produce thermal coal but metallurgical coking coal necessary for extracting metals from ores. If all coal mining is banned and phased out, are we to manage without essential metals as iron and steel? Are we to revert to the Stone Age? If so, what material will use to make solar panels and wind towers and turbines? Time for sense to prevail!

Gerard Tonks | 15 February 2019  

Those who think coking coal is necessary to smelt steel should read the following articles:

Grant Allen | 15 February 2019  

Preston was far from impartial in this matter and should have excused himself - being a long time member and advocate associated with "The Climate Change Justice" group. Balance in reporting is too often missed. His findings will be tested. Pity you failed to include this important point.

Paul Tallentire | 18 February 2019  

Sorry Paul Tallentire, I thought I had made it clear that Chief Justice Preston accepted the science around anthropogenic climate change. Of course, I don't agree that this makes him biased.

Cristy Clark | 21 February 2019  

G.A. These three articles only demonstrate how futile the effort to substitute coal is in the manufacture of steel as an effort to avoid carbon emissions. The first says that fossil fuels will still be in the mix. Why is that, if renewables are so superior? The second says that the broached processes, though more expensive now, will be economical when fossil fuels become more expensive due to government regulation. Whoopee do! Government can make breathing air more expensive than not with enough regulation! It also boasts that water vapour and not CO2 will be a by-product of the process!! *Sigh* Has anyone told them that water vapour is a greenhouse gas? Finally, it says that a fully operational plant will not come on line till 2040. Great. Does the world sit around till 2040 without steel production, awaiting this wonderful albeit purely hypothetical technology? The third article suggests electrolysis as a way of making steel. Great again, but electrolysis requires electricity. And here’s the clincher paragraph: “However, Kavanagh pointed out that electrolysis is only as clean as the grid that feeds it, so if the energy comes from a coal-fired power plant, there may not be any carbon emissions savings.” Yet another instance of kicking the can down the road. Interestingly enough, none of these articles contemplates the one known and already operational CO2-free method of supplying the necessary energy levels for steel production (if you care for CO2 reduction, which I most certainly do not): nuclear power. Given that massive oversight, one has to ask: are these people really as worried about CO2 levels as they profess to be, or is there some other agenda?

HH | 21 February 2019  

Okay let us accept that we are doomed unless we do something within 12 years. Australia contributes 1.4% of emissions to the atmosphere. That is the same atmosphere that the rest of the world lives in. The major country when you talk about emissions is China at 30%. It is building currently more than 250 coal-fired power stations and has a similar number in planning. To obfuscate many argue are but their per capita emissions are very low. If we are doomed the fairness of it does not at all matter. If it is CO2 that is doing it then the reality is all our efforts to reduce emissions is not measurable if you look at the amount in the atmosphere. It steadily rises year by year demonstrating the futility of what we are doing. So we can virtue signal and ruin our economy while most of the rest of the world is giving lip service to it to no avail. We do not have any power to change things by what we are doing it is an exercise in absolute futility. The intellectual elites must realise the collapse of our electrical system is near and that those that wish to save the planet will then move on to farming and transport. Without cheap energy in all its forms our industry will close and it will be cold comfort to congratulate ourselves for our virtue.

Frank | 09 March 2019  

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