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Focus: Greenhouse gas challenge to coal mines rejected by Federal Court

23 June 2006

In brief: The first challenge to the consideration of the effects of greenhouse gas emissions under the Commonwealth's environmental legislation has been dismissed by the Federal Court. Special Counsel Philip Murray and Lawyer Simon Batten report.

The court challenge

The Wildlife Preservation Society of Queensland's (Wildlife Preservation Society) Whitsunday branch brought an action challenging separate decisions of the Federal Minister for the Environment and Heritage, Ian Campbell, that two unrelated coal mine developments in central Queensland did not require environmental approvals under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the Act).

The decisions were based on an assessment that neither of the projects were likely to have a significant impact on matters of national environmental significance which are protected by the Act (protected matters). 

The Wildlife Preservation Society alleged that the minister, in making the decisions, did not consider the effects of greenhouse gases generated by the mining, transportation and export, and burning of coal extracted from the mines.

It alleged greenhouse gases from these processes would have an indirect adverse effect on protected matters such as the World Heritage-listed Great Barrier Reef and Wet Tropics areas, due to global climate change.

Background

Under the Act, an approval is required to take an action that would have, or be likely to have, an impact on any of the protected matters. None of these matters currently relate to greenhouse gas emissions and there is no separate requirement to seek an approval for actions with significant greenhouse gas emissions. 

The Act provides for a formal referral process to determine whether an approval is required and, if required, to establish the relevant environmental assessment process. It was the decisions made at the referral stage that were challenged by the Wildlife Preservation Society.

Previous litigation on indirect impacts

The proceedings appeared to seek an extension of the principles from the Nathan Dam case, Minister for Environment and Heritage v Queensland Conservation Council [2004] 139 FCR 24. For commentary on that decision, see AAR Focus:Environment, August 2004. The case decided that the minister must consider all the adverse impacts the action is likely to have. This includes:

  • each consequence that can reasonably be imputed as within the contemplation of the proponent, even if they are not within the control of the proponent; and
  • effects that are sufficiently close to the action to allow it to be said that they are a consequence of the action. 

In the context of the proposed Nathan Dam, the court held that the future downstream impacts of run-off from irrigation by farmers were impacts of the dam that had to be considered and would affect the level of environmental assessment required. The fact that this run-off was caused by someone other than the proponent of the dam was irrelevant to this finding.

A step beyond

Drawing on this reasoning, the Wildlife Preservation Society made public submissions as part of the referral process that the transportation and subsequent burning and consumption of coal extracted from the two projects was a consequence of the action as it was within the contemplation of the projects' proponents.

This submission extends beyond the scope of the Nathan Dam case because it considers the implications of coal consumption overseas by unknown technologies and how the resultant greenhouse gas emissions impact on the Australian environment.

The Wildlife Preservation Society further submitted that, because of global climate change, these greenhouse gas emissions would be likely to have a significant impact on protected matters in Australia. They concluded that these impacts must be considered when deciding whether approval was required.

The decision

It is apparent from the department's reasoning and assessment, that the department appears to accept that greenhouse emissions could be considered an impact of a project. 

Departmental officers advised the minister's delegate that 'the nature of induced climate change from the referred coal mining operation[s], and impacts on World Heritage values, are speculative'. The minister's delegate accepted the recommendation and found that 'the likelihood of significant impacts [on protected matters] arising from the marginal addition of greenhouse gases to be extremely small, in addition to speculative'. 

This evidence led the court to accept that the minister's delegate did consider the possible impacts of greenhouse gas emissions from the action on protected matters. Accordingly, the principal ground of review failed. Other grounds of review also failed, and the whole application was dismissed. 

The impacts of greenhouse gas emissions

In the judgment, Justice Dowsett indicated that the department may be being too cautious in considering the greenhouse gas emissions and their indirect effects on protected matters in assessing referrals. Justice Dowsett indicated that he was far from satisfied that:

  • the burning of coal at an unidentified place in the world at an unidentified time;
  • the production of greenhouse gases from its combustion;
  • the extent and magnitude (if any) such greenhouse gases would contribute to global warming; and
  • the impact of global warming on protected matters

could properly be described as impacts of the action.

He specifically distinguished this situation from the indirect impacts considered in the Nathan Dam case. Justice Dowsett also criticised the fact the there was no attempt to identify the extent to which emissions from coal mining and transportation might aggravate the greenhouse gas problem.

Consequences for proponents

The judgment gives a good insight into the department's views on assessing referrals. It indicates that the department does consider the impacts of greenhouse gas emissions caused by the actions on protected matters. This suggests that referrals should deal with these likely impacts. Whether this view changes, given the forceful statements made by Justice Dowsett, remains to be seen. 

In any event, given the rise of 'climate litigation', (whereby conservationists use the courts in their fight against climate change), disclosing the greenhouse gas emissions of projects and any steps taken to reduce these emissions is prudent. This can reduce the possibility of litigation relating to decisions made under the Act, and prevent costly delays that could arise. The comments from this case will provide a sound basis for framing the extent of these impacts.

Implications for the future application of the Act

This decision makes it difficult to envisage when a project's indirect greenhouse gas emissions will mean it does require an environmental approval under the Act.

The decision will heighten interest in whether the Federal Government will add a specific greenhouse gas emission trigger for environmental approvals under the Act.

The Government has not made any moves to introduce a greenhouse gas emissions trigger since a draft regulation in 2000 and some earlier work.  

Every five years, the minister must review whether additional matters should be protected under the Act by including new triggers for environmental approvals. The first report is overdue and is expected shortly. The minister's statements earlier in 2006 indicate that, even though he has a raft of proposed amendments, a new greenhouse gas emissions trigger is unlikely.

Interested parties should continue to follow the amendments to the Act.

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