Landmark court decision considers climate change impacts
 |
Professor Michael Jeffery QC |
A decision made by the NSW Land and Environment Court late last year establishing a link between coal mining and climate change is to be applauded says Head of Environmental Law at Macquarie University, Professor Michael Jeffery, QC.
Justice Nicola Pain ruled that an assessment prepared by Centennial Hunter in relation to its proposed coalmine in the Upper Hunter was invalid for failing to assess the environmental impact caused by third parties burning coal. Even though much of the coal from the mine would be burned abroad, Justice Pain held that the impact could still visit Australia in the form of climate change.
"Centennial did not assess the impact of greenhouse gas emissions from burning the coal produced, including the almost 80 per cent expected to be exported abroad," explains Jeffery. "In striking down the Department of Planning director-general's finding that the environmental assessment was adequate, the court held that it was prepared to require the assessment of greenhouse gas emissions affecting Australia, and specifically NSW, from wherever they occurred," explains Jeffery.
Justice Pain's ruling follows a line of decisions that have been made by the Land and Environment Court over the past few years. She held that when looking at impact assessment you can look at impacts not under the control of the proponent.
Ramifications of the decision
"In making this ruling Justice Pain has now effectively ensured that climate change issues must in the future be an integral part of the approvals process related to coal production," says Jeffery. "It's a far-reaching decision if you go beyond coal mines - it could be related to the whole mining sector and other greenhouse gas emitting sectors such as the steel industry, electrical generating plants etc."
There could also be significant ramifications for the major political parties according to Jeffery. "Each of the mainstream parties has a problem because of Australia's reliance on primary resources. We have one of the largest coal reserves in the world and there is a market for it in countries that are industrialising. If you were to outlaw coal production or stop allowing coal exports, unions will go berserk and thousands of jobs will be lost.
"The ALP is in a difficult situation as it has always castigated the government on its lack of action on climate change. They need to be careful on the step they take not only because of the economic ramifications of reducing coal production or stoping exports, but also the impact on some of their constituency such as the unions and the coal miners themselves."
Will the decision stand?
"It is hard to say what will happen now," says Jeffery. This decision could be:
- appealed by the company or the government
- legislated out of existence or dealt with by a higher court
- left as it is and have a more limited application because other courts won't automatically follow or expand the decision.
"The decision has been a win for environmentalists who have long held that if you are producing coal for the purpose of selling it and it's going to be burned the fact that it will bring about greenhouse gas emissions should be acknowledged," says Jeffery.
For further information contact Professor Michael Jeffery michael.jeffery@mq.edu.au