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Australia: Court Includes Climate Impact in Grounds for Upholding Rejection of New Coal Mine

(Feb. 27, 2019) On February 8, 2019, the New South Wales (NSW) Land and Environment Court issued a ruling in which it dismissed an appeal from a mining company against a NSW government decision refusing to grant the company approval to establish a new open-cut coal mine. (Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7.) The decision was notable, and received media attention in Australia and internationally, due to the Chief Judge of the Court, Brian Preston, including the impact of the direct and indirect greenhouse gas (GHG) emissions from the project on climate change as a factor for refusing to grant the application. (See, e.g., Michael McGowan & Lisa Cox, Court Rules Out Hunter Valley Coalmine on Climate Change Grounds, THE GUARDIAN (Feb. 7, 2019); James Thornhill, Coal Developers Take Note: Climate Change Killed This Coal Mine, BLOOMBERG (Feb. 8, 2019).)

Preston CJ noted that

[t]he proposed mine has divided the community of Gloucester. Of the submissions on the amended development application, 90% opposed the mine and of the submissions from the Gloucester postcode, 83% opposed the mine. They are concerned about the noise and dust impacts of the mine, the adverse impacts on the visual amenity and rural and scenic character of the valley, and the social impacts on the community. They are also concerned that the opening of a new coal mine will contribute to climate change. The supporters of the mine primarily invoke the economic benefits that a new mine will bring, including local employment and expenditure. (Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, para. 6.)

Preston CJ examined each of these areas in its consideration of the NSW government’s decision, finding that the project “will have significant and unacceptable planning, visual and social impacts, which cannot be satisfactorily mitigated.” (Id. para. 556.) In terms of climate change, he stated that “[a]ll of the direct and indirect GHG emissions of the Rocky Hill Coal Project will impact on the environment. All anthropogenic GHG emissions contribute to climate change.” (Id. para. 514.) Furthermore, while the aggregate of the emissions from the project may represent a small fraction of the global total of GHG emissions, “[t]he global problem of climate change needs to be addressed by multiple local actions to mitigate emissions by sources and remove GHGs by sinks.” (Id. para. 515.)

Preston CJ referred to cases from the United States, the Netherlands, and other parts of Australia in noting that “[m]any courts have recognised this point that climate change is caused by cumulative emissions from a myriad of individual sources, each proportionally small relative to the global total of GHG emissions, and will be solved by abatement of the GHG emissions from these myriad of individual sources.” (Id. para. 516.)

The final paragraph of the decision states as follows:

In short, an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time. Wrong place because an open cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided. The Project should be refused. (Id. para. 699.)

In reaching the decision, Preston CJ rejected the “market substitution” argument put forward by the mining company. This argument essentially suggests that “if the proponent does not mine and sell coal, someone else will.” (Justine Bell-James, Landmark Rocky Hill Ruling Could Pave the Way for More Courts to Choose Climate Over Coal, THE CONVERSATION (Feb. 11, 2019). See also Gloucestor Resources Case, ENVIRONMENTAL LAW AUSTRALIA (last visited Feb. 26, 2019).) Preston CJ stated:

There is also a logical flaw in the market substitution assumption. If a development will cause an environmental impact that is found to be unacceptable, the environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact. (Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, para. 545.)