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It is virtually impossible to pick up a newspaper today without seeing some mention of global warming. Al Gore’s An Inconvenient Truth and The UK Government’s Stern Review have played a major role in drawing the issue into the limelight. The Stern Review reported that climate change “could create risks of major disruption to economic and social activity later in this century and in the next on a scale similar to those associated with the great wars and the economic depression of the first half of the century.”
When it comes to the law in Australia, under the Federal Environmental Protection and Biodiversity (EPBC) Act (1999) greenhouse gas emissions are not listed as one of the seven matters of national environmental significance. These matters are: world heritage properties; national heritage places; wetlands of international importance; threatened species and ecological communities; migratory species; commonwealth marine areas and nuclear actions (including uranium mining). So unless an activity such as a proposed coal mine or energy plant is likely to significantly affect one of these matters, there will be no environmental assessment of its impact. Consequently there have been a number of recent cases with findings that were inconsistent.
One example is the huge coal mine proposed for Anvil Hill in the Hunter Valley. Coal is one of the major producers of greenhouse gas and this proposed mine would produce at least nine million tons of coal a year. Justice Nicola Pain found that downstream emissions from the burning of coal should be taken into account when considering the environmental impact of a coal mine. This mine is also the subject of a judicial review of a decision by the Federal Minister who found that the mine was not likely to have a significant environmental impact, under the Commonwealth EPBC Act. The Federal Minister’s delegate held the view that a link between the additional greenhouse gases arising from the proposed action and an identifiable increase in global atmospheric temperature or other greenhouse gas impacts is not likely to be found. On appeal, argument focused on the delegate’s failure to consider that the greenhouse gas emissions resulting from the coal mine will contribute to loss of climatic habitat, which is a key threatening process under the EPBC Act.
An earlier decision by the Federal Court in the Bowen Basin coal mine case may not give the Anvil Hill appellants much cause for hope. This case concerned a challenge to the Federal Minister’s decision that two separate coal mines did not require environmental approval, on the basis that they would not have a significant impact on a matter of national environmental significance. The applicant’s argument was that it would add to global warming which would have a detrimental environmental impact on the world-heritage values of the Great Barrier Reef. The Federal court judge found that the decision-maker had considered the impacts of climate change and accepted his finding that the likelihood of significant impacts arising from the marginal addition of greenhouse gases to be extremely small if not speculative.
The amount of emissions coming from the three mines in the Anvil Hill and Bowen Basin cases is a total of 1.04 per cent of global greenhouse gas emissions. Arguably this is not insignificant, but the judges have called the separate amounts small and negligible. Site specific impacts are clearly not suitable for consideration of climate change impacts.
Another case involving the expansion of the Newlands mine in Queensland focused on the science of climate change. None of the parties in this case disputed the findings in the Intergovernmental Panel on Climate Change (IPCC) report or the UK Stern Review. The Queensland Conservation Council did not want to stop the mine. Rather they wanted conditions imposed which would mitigate the effects of the mine’s operations on climate change through efficiency and offsets. Despite these facts the judge criticized the IPCC report and decided to rely on the Carter-Byatt critique of the Stern Review. He allowed the mine with no conditions without allowing the parties to respond. An appeal from this decision was heard in August and the decision has been reserved. Particularly disturbing in this case was the statement by the presiding member that “Absent universally applied policies for GHG (Green House Gas) reduction, requiring this mine (and no others) to limit or reduce its GHG emissions would be arbitrary and unfair. That cannot be what our law requires.”
The difference in approaches in these cases is difficult to understand. Perhaps the problem lies in the Land and Environment Court being a specialised court unlike the Federal Court. In any case, it is disturbing that on an issue as important as global warming there is such ad-hoc decision-making taking place in Australian courts. It would be helpful to have a general legal framework for regulating greenhouse gas emissions from coal mines and a greenhouse gas trigger in the Commonwealth EPBC Act would be a good start.
Karen Bubna-Litic is a Senior Lecturer in the University of Technology Sydney's Faculty of Law.
Editor's Note: This opinion was first published by the University of Technology Sydney on 7 November 2007. For permission to reproduce this article please contact the University of Technology Sydney.
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