On Wednesday last week, the Federal Court dismissed two judicial review proceedings which challenged the Federal Environment Minister Tanya Plibersek’s failure to adequately consider climate change in her risk assessment of two major coal mine expansions in NSW: Mount Pleasant and Narrabi.
The landmark case, known as the Living Wonders Climate Case, was brought by Environmental Justice Australia (EJA) on behalf of their client Environment Council of Central Queensland (ECoCeQ), and has been the subject of significant public interest due to its possible implications for the assessment of future coal and gas projects, and their impact on climate and environment.
Justice Shaun McElwaine ruled that as the law currently stands Minister Plibersek lawfully weighed and reassessed ECoCEQ’s vast evidence regarding the contributory impacts of coal and gas projects on climate change, and that she was not required to alter her risk assessment of the proposed mines due to this new evidence. The ruling effectively means that under the current law the Minister for Environment does not have to consider climate change in their assessment of new coal and gas projects.
At the hearing Justice McElwaine acknowledged the significant public interest that the Living Wonders Case had gained and noted that it was not up to the Federal Court to determine the merits of the Minister’s decision but rather whether the decision was made lawfully. Ultimately, he stated:
The applicants’ arguments, anchored by the extensive scientific material relied on, raise matters for Parliament to consider whether the Minister’s powers must be exercised to explicitly consider the anthropogenic effects of climate change in the manner the applicant submits they must.
Reconsideration Requests
This Federal Court proceeding was the second phase of a landmark legal intervention seeking to protect Australia’s living natural wonders from the impacts of new coal and gas projects. In 2022 EJA, on behalf of ECoCEQ, submitted 19 requests to Minister Plibersek asking her to reconsider the first stage assessment of most pending coal and gas proposals and expansions in Australia under s 78 of the Environmental Protection and Biodiversity Conversation Act 1999 (Cth) (EPBC Act), due to their climate and environmental risks. ECoCEQ provided Minister Plibersek with an enormous repository of scientific evidence listing the direct and indirect impacts of climate change on Matters of National and Environmental Significance (MNES) including species, places and ecological communities in Australia.
On 4 November 2022, Minister Plibersek determined that the reconsideration requests were valid and announced that she would reassess 18 major coal and gas proposals, including Mount Pleasant and Narrabi mine. The proposals where then opened to public comment and submissions were made by relevant State and Commonwealth Ministers.
Following the reassessment, in early 2023, Minister Plibersek announced her decision to approve three of the projects that were subject to the reconsideration requests. While accepting ECoCeQ’s extensive evidence regarding the impact of climate change across Australia, the Minister decided that the climate harms posed by the three proposed mines1 did not change her risk assessment under the EPBC Act.
ECoCeQ then filed Federal Court proceedings to challenge two of the three project approvals issued by Minster Plibersek: the Mount Pleasant and Narrabri Coal Mines.
Federal Court Challenge
The two Federal Court proceedings involving Mount Pleasant and Narrabri challenged the Minister’s approval decisions on the same grounds. Namely, they argued that her risk assessment under s 78 of the EPBC Act did not consider the climate and environmental risk threatened by the mines.
EJA submitted on behalf of their client, that:
- the proposed action by two coal mining companies was a controlled action by definition of the EPBC Act and that ss 18 and 18A (listed threatened species and communities) and ss 24D and 24E (a water resource, in relation to coal seam gas development and large coal mining development) are controlling provisions;
- That the controlled action should be revoked and replaced with a new controlled action decision because of the likely impact on MNES that would be negatively affected by climate change;
- That in each case the proposed action is a substantial cause of the adverse effects of climate change on MNES and so engages the indirect impact provisions of the EPBC Act;
- That the Minister misdirected herself, engaged in impermissible probability reasoning, and misunderstood or failed to apply the precautionary principle which holds that if a project or policy has a suspected risk of causing harm to the public or environment, protective action should be supported.
The Minister, in her submission, did not dispute that greenhouse gas emissions associated with the extraction and burning of coal have contributed to climate change with severe adverse consequences for our environment. Neither did she dispute that many MNES in Australia have been or will be affected by climate change, therefore making it clear that it was not a matter of climate change denial. Rather, she argued that in accepting those matters it remained legally open to her to make the decision not to revoke each controlled action and substitute a new decision.
The Living Wonders case was the first court challenge to a decision of the Federal Environmental Minister on the grounds that it did not consider the risk of the climate impacts of coal and gas projects to the environment.
For further information about the legal arguments, you can visit the Living Wonders website or read the full judgement.
Where to from here?
ECoCeQ is currently considering further legal options such as full Federal Court appeals and urgent injunctions to stop the new coal projects.
What the decision has clearly shown is that without reform to our national environment laws it is not up to the Environment Minister to consider climate change when assessing the risks of new coal and gas projects.
The government plans to release draft legislation to reform the EPBC Act by the end of the year which will be open to public comment.
Russell Kennedy will be monitoring the next stages of the litigation closely and will provide relevant updates.
How can we help
For more information, please contact Malvina Hagedorn, from our Pro Bono team.
If you would like to stay up to date with alerts, news and Insights from our Pro Bono team, you can subscribe to our mailing list here.
Endnote
1 MACH Energy’s Mount Pleasant Coal Mine in the Upper Hunter Valley; Whitehaven’s Narrabri Coal Mine in northwestern NSW; Idemitsu Australia’s Ensham Coal Mine in Queensland’s Bowen Basin