EDO heralds ‘landmark’ climate change decision, despite criticism of the judiciary

By Jerome Doraisamy|18 February 2019
EDO heralds climate change decision despite criticism

While mainstream media has cried “judicial overreach” in response to the Land and Environment Court’s decision to refuse consent for a coal mine over climate change concerns, the Environmental Defenders’ Office is savouring its successful advocacy against Gloucester Resources’ planned Rocky Hill mine, according to its acting principal.

Reflecting on the decision of Land and Environment Court Chief Judge Brian Preston SC, EDO acting principal Brendan Dobbie (pictured, far left, with EDO solicitor Matthew Floro, Robert White Counsel CEO David Morris and EDO solicitor Belinda Rayment) said the decision to refuse consent for the coal mine on the basis of climate change impacts was “quite significant” and a “landmark decision”.

“From our perspective, we think the judgment will be quite influential in terms of decision-making in Australia. Some of the findings the Chief Judge made were that he has accepted the evidence of our expert climate scientist in that there was a need to respect the global carbon budget, acknowledging that there is a finite amount of carbon that can be put into the atmosphere if we can limit climate change to relatively safe levels,” he said.

“In accepting that concept, the judge recognised that most existing fossil fuel reserves will have to be left unburnt if we are to stay within that budget.”


The decision does not mean, he ceded, that a “future decision-maker” will be bound to rule in the same way, but it “will be very influential in terms of the assessment of future fossil fuels projects and this decision will loom large in the minds of decision-makers as those projects come up”, he posited.

“There’s a general feeling of excitement at finally there is some positive news around climate change and certainly in this country it’s a major step for climate change litigation, so I think it’s a boost for people around the globe who are keen to see serious action to address the very significant problem of climate change.”

The judgment was not received so fondly elsewhere, however, with mainstream media outlets calling Judge Preston’s decision judicial overreach, and arguing it was against the national interest.

The NSW Bar Association slammed such commentary, with president Tim Game SC calling such attacks “troubling”.

“The Chief Judge’s remarkable and extensive career within the land and environment jurisdiction highlights his commitment, expertise and suitability as a judicial officer of the court,” he said.


“If there was any concern about judicial bias, it was open to the parties to raise that and ask the judge to recuse himself, as the Attorney-General Mark Speakman SC has already noted.”

Law Society of NeSW president Elizabeth Espinosa expressed similar sentiments, saying the attacks on the Land and Environment Court were “very concerning”.

“His Honour’s commitment to the administration of justice in NSW is immeasurable,” Ms Espinosa said.

“Like many others, we see this the recent media criticism as an attack on both the integrity and character of the Chief Judge and an attack on the independence of the judiciary.”

When asked about criticism of the Chief Judge, Mr Dobbie said he would let the statements of the NSW Bar and Law Society of NSW “speak for themselves”.

The EDO is instead focused, he noted, on the “groundbreaking” nature of the case.

“The Chief Judge found they were significant negative social impacts from the mine and concerns that the social fabric of the community would not survive the mine. We’re very happy that we were able to get a good result for the community and negative impacts were avoided,” he concluded.

EDO heralds ‘landmark’ climate change decision, despite criticism of the judiciary
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