The Australian Minister for the Environment has a duty to take reasonable care, in the exercise of her powers to approve or reject a proposed coal mining project, to avoid causing personal injury or death to Australian children arising from emissions of carbon dioxide into the Earth’s atmosphere.
Upholding Land and Environment Court decision declaring that an open-cut coal mine should not be allowed to expand because the economic benefits of continued mining do not outweigh the impacts to nearby residents and loss of biodiversity.
The Land and Environment Court of NSW decided that the proposed mine expansion project would cause unacceptable environmental and social impacts, which were not adequately evaluated in the economic assessments, and that the approval conditions would not satisfactorily offset such impacts, so it decided to refuse Warkworth’s expansion project proposal and replace the administrative decision with its refusal.
The Court determined the decision of the Minister for Planning's to approve a coal mine extension project should be granted, but imposed extensive additional conditions on the approval based upon a precautionary approach. These additional conditions provide for more certain conservation of threatened species and biological diversity, protection of water quality, control of particulate emissions, mitigation of noise generated by the mine and noise and dust generated by the transportation of coal by train.
Reviewing question of whether an EIA for a coal mine, should have considered the impact to the climate of burning the coal, the judge declared, “I consider there is a sufficiently proximate link between the mining of a very substantial reserve of thermal coal in NSW . . . and the emission of GHG which contribute to climate change/global warming . . . to require assessment of that GHG contribution of the coal when burnt in an environmental assessment….”
Environmental groups challenged an amendment to the provisions of a local planning scheme that was necessary for the expansion of the Hazelwood coal mine in southeastern Australia. The petitioners claimed that the environment effects statement (EES) should have included analysis of the impacts of carbon emissions when the coal is later burned. The terms of reference for the EES stated that “[t]he Panel is not to consider matters related to greenhouse gas emissions from the Hazelwood Power Station - these issues are being addressed through a separate process. ”
The Victorian Civil and Administrative Tribunal determined the Panel should have considered concerns about climate impacts from burning the coal after they were raised under the Planning and Environment Act 1987. The Tribunal found that the Panel must “provide a reasonable opportunity to be heard to any party who wishes to make a submission in relation to the environmental impacts of greenhouse gas emissions from the Hazelwood Power Station; and [must] consider those impacts in making its recommendations and report to the planning authority. ” Id. at sec. 1.
Even though the Panel ultimately approved the amendment after considering the GHG emissions from both the mine itself and the later coal combustion, the case is still important for connecting the impacts of GHG emissions from burning coal to the activity of mining the coal.
This project has been made possible by the generous
support of the Philip Stoddard Brown and Adele Smith Brown Foundation