Australian Court Rejects Coal Project Based In Part on Climate Change Impacts

By Marika Cherkawsky, Student-at-Law and Gavin Fitch, Q.C.

On February 8, 2019, the Land and Environment Court of New South Wales released its decision on whether to approve the Rocky Hill Coal Project after it had previously been refused by the state’s Planning and Assessment Commission in 2017. The Court rejected the Project based, in part, on climate change. This decision marks a historic moment, as it is possibly the first time a court has rejected a fossil fuel development project based on  the cumulative impact of carbon emissions.

Background

 

Gloucester Resources Limited (GRL), a coal mining company, sought to overturn the 2017 decision by the New South Wales (NSW) Planning and Assessment Commission (PAC), which rejected GRL’s application to develop an open-cut coal mine at Rocky Hill in the Gloucester Valley of NSW. The mine, known as the Rocky Hill Mine Project, was proposed to produce 21 million tonnes of coal over 16 years. The PAC’s refusal of GRL’s application was based entirely on planning grounds, particularly the incompatibility of the proposed mine with other land uses in the vicinity.

The Land Environment Court of New South Wales (Court) was established in 1979 to hear appeals about mining and other projects on planning, environmental, land, mining and related grounds. The Court acts a ‘one stop shop’ for environmental, planning and land matters, and is the first specialist environmental superior court in the world.

Significantly, the Court allowed a local community action group, Gloucester Groundswell Inc., to be joined as a party to the proceedings. Gloucester Groundswell was concerned with the impacts of the Rocky Hill Coal Project on the local community and on the local and wider environment. Gloucester Groundswell hired experts to present evidence of the mine’s detrimental impact on not just the social fabric of the Gloucester valley but also climate change.

Decision

 

The Court’s decision was written by Chief Judge Brian Preston. Preston CJ held that the mine should be refused due to its significant and unacceptable planning, visual and social impacts, none of which could be satisfactorily mitigated.

What makes this decision ground breaking, however, is Preston’s CJ reasoning and commentary on the effects on climate change the proposed coal mine would have. Preston CJ conducted an exhaustive examination of  evidence of climate change before the court, international and national decisions, international agreements and Australian climate policies, following which he rejected the project.

Evidence of Climate Change

 

The court heard from Emeritus Professor Will Steffen, an earth systems scientist, called by Gloucester Groundswell to give evidence on climate change science and the “carbon budget”. The “carbon budget” is the total allowable amount of carbon dioxide and other greenhouses gases that the world can emit without incurring a risk of exceeding the specific global average temperature of 1.5ºC. Professor Steffen summarized the impacts of climate change and concluded that any development of new fossil fuel reserves is incompatible with any carbon budget and with Australia’s commitments to the Paris Agreement and “is inconsistent with the carbon budget approach towards climate stabilization.” This was true despite the fact that the total GHG emissions of the Project would only constitute a small fraction of total global emissions, because all GHG emissions are important, as they cumulatively contribute to the destabilization of the global climate system.

GRL’s Argument for Approval

 

GRL did not contest that climate change is real and happening and that GHG emission must be reduced rapidly in order to meet the internationally agreed temperature targets of 1.5ºC or 2ºC. GRL did, however, contest that the Rocky Hill Coal Project needs to be refused in order to achieve these temperature targets. Essentially, GRL argued the Rocky Hill Coal Project by itself would not contribute to climate change and thus should be approved.

Reasoning

 

After a lengthy review of the evidence, Preston CJ agreed with Professor Steffen’s conclusion, and held the Project’s cumulative GHG emissions would contribute to future changes to the climate system and the impacts of climate change. This increase in GHG emissions caused by the Project would counter the measures being undertaken to limit climate change and would do nothing to assist Australia in meeting the globally agreed goals of the Paris Agreement, in particular  the long term goal of limiting the increase in global average temperature to between 1.5ºC and 2ºC above pre-industrial levels.

Further, Preston CJ rejected GRL’s submission that the increase in GHG emissions associated with the Project would be offset by reductions in GHG emissions from other sources, none of which were actually identified by GRL. Preston CJ stated that an authority cannot approve a development that is likely to have some identified environmental impact on the theoretical possibility that the environmental impact will be mitigated or offset by some unspecified and uncertain action at some unspecified and uncertain time in the future. He noted that this was not a case where a project proponent committed to take specific and certain action to mitigate and offset the environmental impact of its proposed development.

Conclusion

 

In conclusion, Preston CJ held that the mine should be rejected as it was not in the public interest, concluding:

In short, an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time. Wrong place because an open cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided. The Project should be refused.

GRL has stated it will assess the implications of the decision and consider its next steps.  It has 28 days to appeal on a point of law to the New South Wales Court of Appeal.

The implications of this judgment, assuming it were to be followed in other jurisdictions such as Canada and Alberta, are enormous.  On the Court’s reasoning, any major new fossil fuel project, including oil sands projects, would be “at the wrong time” and could be rejected on the basis of increased GHG emissions.