LEGAL EXPLAINER: Living Wonders litigation

In legal terms, the Minister decided the climate harms identified in thousands of pages of evidence put before her should not change the risk assessment carried out by the previous government for the particular mines.

She decided these climate harms are not relevant under the EPBC Act to her risk assessment of three proposed mines:

• MACH Energy’s Mount Pleasant Coal Mine in the Upper Hunter Valley
• Whitehaven’s Narrabri Coal Mine in northwestern NSW
• Idemitsu Australia’s Ensham Coal Mine in Queensland’s Bowen Basin.

At the same time as these decisions were made, the Minister also proposed to approve the Labor government’s first coal mine – the new Isaac River mine in Queensland’s Bowen Basin (which was not subject to the Living Wonders legal intervention).

The Environment Protection and Biodiversity Conservation Act (EPBC Act) is the central piece of Australia’s environmental protection framework.

Among other things, the EPBC Act gives the minister a vital responsibility: the fate of nationally significant places, ecosystems, plants and wildlife.

Under the EPBC Act, the minister must safeguard animal and plant species at risk of extinction, as well as places of deep significance for First Nations people, World Heritage sites, National Parks, the Great Barrier Reef Marine Park, internationally significant wetlands and marine environments.

These places, species and ecological communities are called ‘Matters of National Environmental Significance’ under the Act.

As part of this safeguarding process, the Minister is required by the EPBC Act to make a decision about what the adverse impacts or likely adverse impacts of a particular proposal (including fossil fuel proposals) might be on any and all Matters of National Environmental Significance. Where the Minister decides that a proposal has, will or is likely to have an adverse impact, the EPBC Act requires that Matter be listed as a ‘controlling provision’ for the proposal.

When a matter of national environmental significance is set as a ‘controlling provision’, it means the likely harm to those places or species must be properly taken into account before the project can be approved.

In July last year, under a rarely used section of the EPBC Act, ECoCeQ, represented by Environmental Justice Australia, submitted 19 reconsideration requests to the minister, covering almost all new coal and gas proposals awaiting federal approval.

These requests set out the climate risk ECoCeQ argues must be identified from these fossil fuel proposals to thousands of animals, plants and places in Australia that are nationally significant living wonders.

The requests are supported by a large bank of evidence, reports from two of Australia’s leading climate scientists, and continent-wide mapping evidence showing, for the first time, the impact of the 2019-2020 climate-fuelled bushfires on hundreds of species and places under the Minister’s statutory ‘watch’.

ECoCeQ’s 19 applications for reconsideration argue the Environment Minister has an obligation to review significant information, including the government’s vast body of scientific evidence, and register the detrimental effect of the 19 fossil fuel projects on 2121 nationally significant species, places, and ecological communities because of their material contribution to climate change.

The Minister’s department has provided reasons for each of the three decisions:

• Read the Statement of reasons for Whitehaven’s Narrabri Coal Mine
• Read the Statement of reasons for MACH Energy’s Mount Pleasant Coal Mine
• Read the Statement of reasons for Idemitsu Australia’s Ensham Coal Mine

The Minister’s reasons are largely the same for all three projects. In summary, she indicates she accepts the extraction of fossil fuels contributes to climate change and accepts our client’s analysis about the devastating impact of climate change on Matters of National Environmental Significance right across the Australian environment.

However, despite this, the Minister’s reasons state she does not accept that the impacts of the particular projects will be substantial. She rejects our client’s argument that these projects meet the test for an ‘impact’ under the EPBC Act.

The Minister’s decision is underpinned by two main conclusions.

First, she determined each proposed coal mine will not cause a net increase in global Greenhouse Gas Emissions (and consequently any physical effects from climate change on Matters of National Environmental Significance) because whether this will happen is dependent on multiple variables in the coal market. She also asserts that if coal from the individual mines was not exported and burnt, those purchasing coal would do so from elsewhere. This is commonly known as a ‘market substitution’ analysis.

The second conclusion the Minister makes is even if the proposal could be established to cause an increase in global greenhouse gas emissions, any contribution from that would be ‘very small’ and it’s not possible to say it would be a substantial cause of physical effects of climate change. This kind of analysis is commonly known as the ‘drop in the ocean argument’.

Finally, the Minister’s reasons also state she took into account the precautionary principle (as our client argued she must). However, her reasons only reiterate the above reasoning that she decided the greenhouse gas emissions from the proposed mine expansion will not or are not likely to cause an ‘impact’ on protected matters for the purposes of the EPBC Act.