On Monday I read in The Australian that the NSW Land and Environment Court ruled Centennial Coal had failed to adequately consider the impact of greenhouse gas emissions from its proposed Anvil Hill coal mine in the Upper Hunter and so the approval it got from government for its environmental assessment is void. So at least for the moment the new coal mine is not going ahead. It has taken a couple of days for me to digest this information. The judgment is radical, if not surprising, and perhaps worth considering in some detail.
According to the judgment: “The area of land which constitutes Anvil Hill has a deposit of approximately 150 million tonnes of thermal coal. The proposed open cut mine will produce up to 10.5 million tonnes of coal per annum. The mine is intended to operate for 21 years. The intended use of this coal is for burning as fuel in power stations in New South Wales and overseas. There is an existing contract for sale of coal to Macquarie Generation, which operates the Bayswater and Liddell power stations. About half the coal is intended for export for use as fuel in power stations to produce electricity generally in Japan. There is no dispute that burning of coal will release substantial quantities of greenhouse gases into the atmosphere.”
At issue was whether the Director-General from the Department of Planning was legally bound to require greenhouse gas impacts of burning coal by third parties in environmental assessment of new coal mines … whether ecologically sustainable development principles were taken into account.
In deciding that the environmental assessment lodged by mining company Centennial Coal in respect of the Avil Hill Project was inadequate and therefore that the approval from the relevant government department was “void and without effect”, the Judge commented that:
“Burning coal to produce GHG [Greenhouse Gas] emissions in NSW will be conducted in activities subject to regulation under the EP&A Act. Overseas burning of the coal is also likely to be subject to overseas regulation. The release of GHG from power plants is likely to be subject to increasing regulation nationally and internationally. Technologies relating to GHG are developing and may change over the next two decades.”
“…The fact that an assessment of GHG emissions alone was required demonstrates that regard was intended to be had to the future impacts of GHG. The problem of climate change/global warming is an increasing problem which is recognised by the Director-General in taking into account the environmental concern about GHG emissions by requiring an analysis of these and that must include the effect on future generations.
“… ESD [Ecologically Sustainable Development] requires that there be integration of environmental and economic considerations in decision making about projects. The Director-General required GHG to be assessed in the environmental assessment and therefore clearly intended that it be taken into account.
“…The Applicant argued that while the decision is a subjective one reached by the Director-General it nevertheless raises a legal question. The Applicant’s counsel argued that the Director-General had to ask himself two questions in relation to the environmental assessment, (i) did the environmental assessment comply with the EAR [Environmental Assessment Regulation] and (ii) if not, can it be said that it generally complies with those requirements. As the environmental assessment provided did not contain a detailed analysis of GHG in conformity with the EAR it was clear that the Director-General did not ask himself the first question and he therefore fell into legal error.
“…Given the quite appropriate recognition by the Director-General that burning the thermal coal from the Anvil Hill Project will cause the release of substantial GHG in the environment which will contribute to climate change/global warming which, I surmise, is having and/or will have impacts on the Australian and consequently NSW environment it would appear that Bignold J’s test of causation based on a real and sufficient link is met. While the Director-General argued that the use of the coal as fuel occurred only through voluntary, independent human action, that alone does not break the necessary link to impacts arising from this activity given that the impact is climate change/global warming to which this contributes. In submissions the parties provided various scenarios where this approach would lead to unsatisfactory outcomes such as, in the Director-General’s submissions, the need to assess the GHG emissions from the use of ships built in a shipyard which use fossil fuels. Ultimately, it is an issue of fact and degree to be considered in each case, which has been recognised in cases such as Minister for Environment and Heritage v Queensland Conservation Council Inc and Another (2004) 139 FCR 24, by the Full Court at [53].
“…The Applicant’s Points of Claim challenge the Director-General’s opinion that the environmental assessment prepared by Centennial was adequate because he failed to take into account ESD principles, particularly the precautionary principle and the principle of intergenerational equity. … the precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
“… If the DG had adopted a sceptical approach to the climate change issue, and had declined to require the EA to address this (or to address downstream GHG emissions) because of this scepticism, and if in so doing he had failed to consider the precautionary principle, then there may be basis for legal complaint. That is not this case.
“…I also conclude that the Director-General failed to take into account the precautionary principle when he decided that the environmental assessment of Centennial was adequate, as already found in relation to intergenerational equity at par 126. This was a failure to comply with a legal requirement.”
Read the full judgment here: http://www.lawlink.nsw.gov.au/lecjudgments/2006nswlec.nsf/61f584670edbfba2ca2570d40081f438/dc4df619de3b3f02ca257228001de798?OpenDocument
I reckon, based on the tangle of legislation currently in place in Australia, that the judgement was inevitable. A real problem into the future is that governments (from both sides of politics) have enacted legislation based on environmental campaigning that is unreasonable. They have enacted legislation that is at core about stopping development including through use of the precautionary principle, rather than weighing up the costs and benefits of resource use.
Jennifer Marohasy BSc PhD has worked in industry and government. She is currently researching a novel technique for long-range weather forecasting funded by the B. Macfie Family Foundation.