Whether a coal mine project could be declined by the government on the basis on climate change consequences and other environmental factors

CASE NAME: Gloucester Resources Limited v. Minister for Planning[1](February 8, 2019)

CORAM: Preston CJ. [The Land and Environment Court, New South Wales]

Brief Facts: On December 19, 2017, The Minister of Planning was sued by Gloucester Res. Ltd. for the refusal of the application for the Rocky Hill Coal Project (open-cut coal mine).

PARTIES TO THE SUIT:

• Applicant: Gloucester Resources Limited (hereinafter ‘GRL’)
• Respondents: Minister for Planning (first) and Groundswell Gloucester Inc- local community action group (second)

ISSUE:

• Whether a coal mine project could be declined by the government on the basis on climate change consequences and other environmental factors

Principal Laws:  Environment Protection Act, 1993 and the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries), 2009 – Mining SEPP

ARGUMENTS RAISED:

Appellants contention:

The appellants constantly focused on the economic benefits arising from the development project. The Rocky Hill project was to produce over 21 million tonnes of coal in 21 years. GRL opined that the social, environmental and economic rationales of prohibiting development projects of coal mines based on CHG emissions are weak and by doing so, the authority is hampering the growth of the steel industry. Further in support of their claims they submitted a local Effects Analysis and Economic Assessment by Deloitte Access Economics (2016) projecting the increased benefits to the NSW community and the locality. Further, they contended that the CHG emissions are justifiable as, such a project would produce the much in demand high quality ‘coking coal’ and thus, also benefit the steel industry. They also argued that these emissions will not increase the emission rate as the other mines have a lower rate of emission and that these emissions would be within the current carbon budget. Also, there is no prohibition for the setting up of new coal mines (as expressed by the defendants) in any international agreement, commonwealth as well as state laws.

Defendants Contention:

With respect to the authority to refuse, the State (consent authority) u/ s. 4.38(1) of EPA has the authority to refuse/ request modification of development application.  Additionally, u/s. 4.15 of EPA and clause 12 of Mining SEPP requires the authority to take into account the socio- enviro and economic factors. The other contentions raised by the Minister and Gloucester Grounds well against the development of the project include -  incompatibility of the mine with respected to the proposed use of adjacent land as per the Mining SEPP, noise, dust, visual and other such social impacts, negative cost-benefit analysis and abundant production of GHGs which were against the principles of ecologically sustainable development and public interest. Furthermore, as a counter to the CHG emission arguments put forth by the appellants, it was argued that the emissions to be produced by the Rocky Hill Project would be the largest emitter. They relied on various judgements such as Australian Conservation Foundation v. Latrobe City Council[2] to emphasis on the point that ‘direct and indirect CHG emissions of the Project will result in a cumulative increase in the emissions and thus, augment dangerous anthropogenic climate change’.

Decision: The appeal against the rejection of the application was dismissed.

CONCLUSION/ ANALYSIS:

The court in this case took a pro-environment approach and contributes to the ongoing climate change ligations. As per the judgement of the Court, such an exploitation of the coal resources in the valley would result in extreme pollution, disrupt community life and culture, enjoyment of guaranteed rights and result ‘distributive inequality to the current and future generations. It emphasized on the fact that irrespective of availability of a resource, it doesn’t necessarily have to capitalized on; the time and place is crucial. Further, in the absence of this project the coal requirement can be met from other existing coal mines and thus, the damage to be caused cannot be justified. This project was to also negatively impact the growing tourism of the village which accounted for a huge part of the area’s economy, which was a non-disputed fact. Most importantly the claimed benefit of the Project lingers in uncertainty, which when compared to proof of dismissive factors, favors the decision of the Minister. Also, the consent authority is to deal with each development project independently and emission reductions etc. of other mines are unrelated. There is a clear failure in its Social Impact Assessment.

Furthermore, the after-effects of setting up of this coal mine would hamper the achieving of environmental goals and sustainable development as per obligations by being party to the Climate Change Convention, Paris Agreement etc. Om Namah Shivaya