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Carmichael mine jumps another legal hurdle, but litigants are making headway
The Carmichael coal mine planned for Queensland’s Galilee Basin has cleared another legal hurdle, with the state’s Supreme Court dismissing a legal challenge to the validity of the Queensland government’s decision to approve the project.
The court found in favour of the Queensland Department of Environment and Heritage Protection, ruling that its approval of Indian firm Adani’s proposal was within the rules.
The decision is another setback for environmentalists’ bid to stop the controversial project. But Adani does not yet have a green light to break ground on the project, and legal questions still remain, both about this project and about climate change litigation more generally.
The Supreme Court rulingIt is important to note that this was a judicial review proceeding – a narrow type of review in which the court is not permitted to consider whether or not the decision to approve the mine was “correct”. The court could only rule on whether correct procedures were followed, while accepting that the decision was at the government’s discretion.
Within this already narrow context, the argument on which the legal challenge hinged was even more constrained. It was brought by an environmental campaign group called Land Services of Coast and Country (LSCC), and was focused on a particular point of Queensland environmental law.
Queensland’s Environmental Protection Act 1994 requires that decisions are made in accordance with the Act’s objective, which is to deliver “ecologically sustainable developent”. LSCC argued that the government failed to do this in approving the coalmine.
The Supreme Court disagreed, finding that the government had considered all matters that it were obliged to consider. So in this respect, the Supreme Court’s decision is an endorsement of the process, but not necessarily the ultimate decision.
Is this the final hurdle overcome for Adani?
In short, no. The decision can be referred to Queensland’s Court of Appeal. There is also ongoing litigation against Adani in the Federal Court of Australia under federal environmental and native title laws. There are also some approvals yet to be obtained by Adani, including a groundwater licence.
Is this ruling a rejection of climate change arguments against the coal mine?
No. This case dealt specifically with the question of whether the Queensland government had complied with a particular aspect of the law. The Supreme Court did not (and was not able to) address the potential climate change impacts of the proposed mine.
These climate issues were addressed more fully by Queensland’s Land Court in the case of Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (2015) QLC 48.
Importantly, the Land Court in this case accepted the scientific basis for climate change, and agreed that “scope 3 emissions” (that is, the emissions produced when the coal is burned overseas) are indeed a relevant consideration in whether or not to approve the mine.
However, Adani successfully used a “market substitution” defence, arguing that if the mine is refused, coal would simply be mined elsewhere and burned regardless.
What does this case say about climate change litigation more generally?
The latest judgement was handed down amid a series of fresh attacks on the rights of environmental groups to use Australia’s environmental laws to hold companies and governments to account. Federal Environment and Energy Minister Josh Frydenberg has raised concerns about “activists … seeking to frustrate” projects with “vexatious litigation”, while Prime Minister Malcolm Turnbull has revived plans to amend federal environmental legislation so as to restrict standing to apply for judicial review – the so-called “lawfare” amendments.
In the wake of the new ruling, the head of the Queensland Resources Council has criticised the delays caused by litigation against mining projects.
This begs the question: is climate change litigation “vexatious”? A close analysis of Queensland court decisions would suggest the opposite. Climate change issues have been considered in a series of three key Queensland Land Court cases: Wandoan Mine in 2012, Alpha Coal Project in 2014, and the Carmichael Mine (Adani) in 2015.
The Alpha Coal matter has proceeded to the Supreme Court, the Court of Appeal, and leave has been sought to appeal to the High Court of Australia. Importantly, none of these cases has been dismissed as vexatious; each resulted in a lengthy judgement analysing the complex legal issues raised by the objector.
Furthermore, although objectors have not yet succeeded in stopping a mining project on the basis of climate concerns, they have nevertheless made modest strides. Most recently, President McMurdo of Queensland’s Court of Appeal found that the Land Court must consider scope 3 emissions in deciding whether a mine should be granted environmental approval. This represents significant progress, given that climate science was questioned by Queensland Courts less than ten years ago.
The only significant barrier remaining to a successful climate change case is the market substitution defence, which will be considered by the High Court if special leave is granted in the Alpha Coal matter.
Climate change litigation has also clarified other environmental and economic impacts. In the Carmichael Mine case, it was discovered that the mine site was a critical habitat for the endangered black-throated finch – evidence that was not previously available. The Land Court ordered strict conditions aimed at protecting this species. The litigation also served to clarify the significantly overstated economic benefits of the mine – particularly Adani’s estimate that it would generate more than 10,000 jobs. It was revealed in court that this figure was more likely to be 1,206 jobs in Queensland, as part of a total of 1,464 jobs in Australia.
Where to for climate change litigation?
Although the latest judgement is another setback for environmental groups, it is part of a bigger body of case law that is making real and discernible progress in ensuring that climate change is considered by decision-makers and courts.
Given that several courts have agreed on the validity of climate litigants’ arguments, it seems perverse for the federal government to try and restrict environmental groups’ right to continue raising these concerns.
Justine Bell-James has previously received funding from the Australian Research Council. She has previously assisted EDO Qld with policy advice.
Dining with Killer Whales
Renewables levy cap on consumer energy bills 'exceeded by £1bn'
Official review finds failures in Levy Control Framework and says overshoot will have to be paid for by households
Former energy ministers have contributed to an overspend of more than £1bn on renewable power subsidies that consumers will be forced to pay for, a government report has said.
The review by the Department for Business, Energy and Industrial Strategy, published on Friday, says “political unwillingness” to curb support for solar and wind power projects has contributed to the cap on green energy subsidies being breached.
Continue reading...Country Breakfast features Sat 26
What’s wrong with the word people? | Brief letters
According to the very first words in your front-page story (Chancellor to crack down on letting fees, 23 November) “millions of families” are to be offered relief from spurious letting charges. Funny, I hadn’t realised that the measure was targeted only at families – I guess this must mean that people living alone, house-sharers and childless couples will have to go on paying the fees? Can you please make an effort not to bandy about the word “families” as though it were a synonym for “people”?
Rob Sykes
Oxford
• I was leaning on a gate the other day, looking at the view, trying to figure out why November can often seem the best autumn month. Paul Evans expressed these feelings so beautifully (Country Diary, 23 November). Wonderful!
Nick Spencer
Kington, Herefordshire
Arctic warming, Trump and orange-bellied parrots – green news roundup
The week’s top environment news stories and green events. If you are not already receiving this roundup, sign up here to get the briefing delivered to your inbox
Continue reading...After the quake
Europe's science ministers to decide on ExoMars rover
The week in wildlife - in pictures
A newborn Sitatunga calf and an orange-bellied parrot are among this week’s pick of images from the natural world
Continue reading...Why melting Arctic ice can cause uncontrollable climate change – video report
Arctic scientists have reported that the speed at which the northern ice cap is melting risks triggering 19 climate tipping points, with disastrous consequences. It could also affect ecosystems elsewhere on Earth, perhaps irreversibly. The Arctic Resilience Report says it is crucial to reduce greenhouse gas emissions
Continue reading...Government commits £15m to natural flood management
Natural management is ‘vital’ as well as other flood defences says environment secretary, reports The Ends Report
The Department for Environment, Food and Rural Affairs (Defra) will spend £15m on natural flood management projects, the environment secretary has announced.
On Thursday, Andrea Leadsom confirmed to parliament that, although flood defences such as concrete barriers are “very important”, natural flood management is “vital” as well.
Is this the beginning of the end for coal?
Canada has joined a growing list of countries phasing out the most polluting fossil fuel and global demand has fallen. Is this the start of a low-carbon energy era or just a blip in coal’s dominance?
This week Canada joined the growing list of major developed countries saying they will phase out coal power.
The announcement comes against the backdrop of global demand for coal falling last year for the first time in nearly two decades, a development that could presage a new era of lower-carbon energy generation – or merely a blip in the long-term dominance of the highly polluting fuel.
Continue reading...Heathrow third runway 'may break government's climate change laws'
Airport expansion plans may breach climate change legislation if other sectors do not make big cuts to emissions, warns Committee on Climate Change
Plans to build a third runway at Heathrow may breach the Government’s own climate change legislation if other sectors do not make big cuts to emissions, an independent advisory body has warned.
The Committee on Climate Change (CCC) said it had “concerns” over how the Department for Transport (DfT) had presented its case for expanding the hub in relation to greenhouse gas emissions.
Continue reading...Government accused of 'dirty tricks' over controversial fracking report
Ministers deliberately delayed a report showing fracking could affect house prices, health and the environment until after a crucial planning decision, documents reveal
Ministers deliberately delayed a controversial fracking report it was being forced to publish until after crucial council decisions on planning permission, according to newly revealed documents.
The documents also show ministers acknowledged they were open to a charge of double standards, having granted local communities the final say over windfarm applications but overruling fracking decisions.
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Ketton Quarry, Rutland Withered stems of white bryony lash together clumps of little red globes hanging in garlands, and hedges blush with hawthorn berries
The incoming polar air mass and clear night sky produces this year’s heaviest frost. Water crystallises into bristly masses on every surface. The blazing morning sun rapidly scorches most of it away, but in the deepest still hollows of Ketton quarry the thick, white, dusting endures into the afternoon.
Related: Birds and berries: A fertile feast
Continue reading...Arctic ice melt could trigger uncontrollable climate change at global level
Scientists warn increasingly rapid melting could trigger polar ‘tipping points’ with catastrophic consequences felt as far away as the Indian Ocean
Arctic scientists have warned that the increasingly rapid melting of the ice cap risks triggering 19 “tipping points” in the region that could have catastrophic consequences around the globe.
The Arctic Resilience Report found that the effects of Arctic warming could be felt as far away as the Indian Ocean, in a stark warning that changes in the region could cause uncontrollable climate change at a global level.
Continue reading...Coal? What coal? Reef doing great, say ministers
Minister defends coal industry after call to ban new mines to save reef
Josh Frydenberg says coal ‘vitally important’ after former Great Barrier Reef official calls said its future depended on an end to mining
Josh Frydenberg has defended Australia’s coal industry as “vitally important” days after a former Great Barrier Reef authority chief called for a ban on new mines.
Speaking after a forum on the reef with state and territory ministers in Sydney on Friday, the federal environment minister said other countries would simply “fill the void” if Australia did not export coal.
Continue reading...AGL offering free solar system, or battery storage, to wind farm neighbours
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