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 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.
Dr 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.