Before last year’s election, Prime Minister Anthony Albanese promised to get Australia out of the climate “bad guys’ corner”, but his government has just won a major legal victory against environmentalists fighting mining expansion.
In doing so, the Federal Court set a precedent that means the federal government can ignore the risk such fossil fuel projects pose to protected plants, animals and places when deciding whether to approve them.
Federal Environment Minister Tanya Plibersek was joined in the matter by two coal companies fighting to expand and expand existing mines in New South Wales: Whitehaven Coal’s Narrabri underground project and the Mount Pleasant mine. from MACH Energy.
This legal victory means that the Albanian government now has the green light to approve or reject mining proposals.
Central Queensland Environment Council chair Christine Carlisle said while “respecting the important role of the court today” she was “bitterly disappointed and alarmed by what this means for our living wonders” .
“After today’s court ruling, Minister Plibersek may rush to approve new coal mines and gas wells,” she said.
The ABC has obtained legal documents suggesting it is likely the Labor government will now approve two mines at the heart of the case.
Court affidavits from MACH Energy and Whitehaven Coal show they had meetings with the federal Department of the Environment, during which they were led to believe they already had “draft approvals” in place .
Both miners said they believed final approvals for their proposals were “imminent,” a claim denied by a department spokesperson.
Plibersek’s office said she had not made any decisions regarding these projects and noted that any decision on them would have to be consistent with a “hard cap” on emissions agreed earlier this year.
“Our tough new climate safeguard laws, developed with the Green Party and independents, mean coal and gas projects must comply with Australia’s commitment to net zero,” he said. the spokesperson.
The “drug trafficker defense”
In the cases – nicknamed the “Climatic cases of living wonders” by plaintiffs — the Central Queensland Environment Council argued the environment minister should include an assessment of how greenhouse gases emitted by 19 mining projects would affect thousands of plants, animals and protected places in Australia.
The mines had not yet been approved, but decisions had been made about the risks involved in the approval decision.
The council asked the minister to reconsider these decisions.
In documents submitted to the court, Plibersek argued that she could ignore the projects’ emissions because they alone would have no significant impact.
His argument also argued that if these projects were shelved, other projects would then continue overseas, negating any net benefit.
The board called this legal argument the “drug trafficker’s defense.”
Plibersek also argued that the total amount of coal burned as a result of the individual projects would be “very small” and therefore would not increase global temperatures enough to impact the environment.
Justice Shaun McElwaine ruled that “it was lawfully open to the Minister to weigh and evaluate the applicant’s documents and arguments, being mindful of the potentially catastrophic effects of climate change on matters of national environmental significance.”
“Ultimately, the Claimant’s articles… raise questions for Parliament to consider whether the Minister’s powers should be exercised to explicitly take into account the anthropogenic effects of climate change in the way the Claimant argues that ‘They have to do it,’ said Judge McElwaine.
A spokesperson for Environmental Justice Australia, which represented the Central Queensland Environment Council in court, said the decisions set a worrying precedent.
“Unless appealed, today’s judgment effectively paves the way for the Minister to ignore climate change in her risk assessment of all new coal and gas projects on his desk – 25 of them,” they said.
Approvals in the spotlight
As the effects of climate change take hold and we see unprecedented numbers of deaths from heatwaves and fires, coal mining permitting will face increasing public scrutiny.
And as we move closer to the net-zero emissions deadline of 2050, the Federal Court has ruled – for now – that our existing federal environmental laws do not require consideration of emissions from proposed fossil fuel projects .
Fossil fuel projects will still face further dissection, however.
A new “hard cap” on emissions from large emitting projects in Australia means these projects will need to be reviewed by the Minister for Climate Change, to ensure they are consistent with our emissions budgets.
But will it be enough to achieve what almost everyone knows must happen one day soon: putting an end to new fossil fuel projects?
As these mines move toward approval decisions, we may soon find out.