High Court’s coal mining decision ‘groundbreaking’ for climate change litigation

The extension, which would have ended in December 2048, would have enabled the extraction of an additional 406 million tonnes of coal, increasing MACH Energy Australia’s annual production rate of coal from 10.5 million to 21 million tonnes.

An environmental impact statement before the commission at the time of its decision set out emissions resulting from combustion overseas of Mount Pleasant coal would represent approximately 0.065 per cent of total global greenhouse gas emissions.

The statement indicated a likely rise in average temperatures in the region, suggesting bushfires may become more prevalent and rainfall has the “potential to both increase and decrease, particularly seasonally, with heavier rainfall events likely to become more frequent”.

In a press conference, Anita O’Hart, principal lawyer with Johnson Legal, said the decision would be “groundbreaking for climate litigation in Australia”, and examined closely overseas.

“This is an historic ruling for Australian environmental law and for the communities who have been fighting for accountability in the fossil fuel approvals process,” O’Hart added in a statement.

“The implications extend well beyond Mount Pleasant.

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“This ruling will be applied by courts and planning authorities across Australia, and it will be studied internationally as one of the most significant domestic climate law decisions in the world.”

Johnson Legal director Elaine Johnson said the High Court has made it clear planning authorities “can no longer turn a blind eye to the emissions that we are exporting overseas”.

Denman Aberdeen Muswellbrook Scone Healthy Environment Group (DAMSHEG) applied for judicial review of the planning commission’s decision, which was dismissed by the Land and Environment Court.

It was the subsequent decision by the Court of Appeal that was dismissed by the High Court in its Wednesday, 7 October, decision.

The issue was whether the commission appropriately considered the indirect greenhouse gas emissions generated in the wider economy that occur as a consequence of the activities of a facility, but not from sources owned or controlled by the facility’s business.

Chief Justice Stephen Gageler and Justice Jayne Jagot said evidence before the court indicated the impacts of climate change are global “and would be experienced in every location across the planet in one form or another”, including the Hunter Valley region.

Justice Michelle Gordon said that by failing to turn its attention to the global impacts, the commission also deprived itself of an opportunity to request further submissions about the conditions.

“This court cannot and does not address the merits of the requirement for the commission to minimise to the greatest extent practicable greenhouse gas emissions of the Project, including [global] emissions, and what conditions, if any, might be imposed.

“It was for the commission to consider whether to impose conditions to minimise to the greatest extent practicable greenhouse gas emissions of the project, including [global] emissions,” she said.

In the wake of the ruling, the head of climate and energy at Greenpeace Australia Pacific, Joe Rafalowicz, said the High Court decision was a “victory for communities that bear the brunt of the storms, bushfires and extreme weather fuelled by Australian fossil fuel corporations”.

“Coal and gas companies have claimed they are not responsible for their pollution because it happens overseas, but today Australia’s highest court sided with common sense and scientific evidence to find that every new coal and gas approval in this country could put us at risk, no matter where it is sold or burnt,” Rafalowicz said.