8 August 2024

Environment Minister Tanya Plibersek could now rapidly move to greenlight dozens of pending coal and gas projects without scrutinising their climate impacts.

The Australian High Court today declined to hear a community climate group’s epic legal bid to make the minister act on the climate damage these projects would cause.

The small community group, the Environment Council of Central Queensland (ECoCeQ), had applied for special leave to appeal to the High Court over the minister’s refusal to act on the climate impacts of plans for two large coal mine expansions, after the full Federal Court dismissed the group’s landmark Living Wonders climate cases.

Represented by lawyers from Environmental Justice Australia, ECoCeQ argued the Environment Minister was legally required to protect our unique environment – including koalas, the Australian Alps and the Great Barrier Reef – from the climate harm of two huge coal mine expansions in NSW.

Christine Carlisle, Environment Council of Central Queensland (ECoCeQ) President, says:

“For two years now, our community group has been in an epic legal battle to compel Australia’s Environment Minister do her job of protecting our environment from the climate damage of coal and gas.

“Minister Plibersek chose to stand in court beside mining companies and defend her refusal to act for our climate. But we need her to be the Environment Minister, not the Minister for Mining Companies.

“Sadly, this court decision means our Environment Minister can choose to greenlight the 38 new coal projects on her desk, without scrutinising their climate risk. But she can also choose not to.

“We say the Minister has the power under Australia’s current environment laws to properly assess the climate risk of new coal and gas projects – and she can choose to take steps to protect our environment from that harm. We urge her to do so.”

Environmental Justice Australia senior specialist lawyer Retta Berryman, says:

“Our client has shown such courage and determination – it’s no mean feat for a small, volunteer-run community group to take Australia’s environment minister and two huge fossil fuel companies all the way to the High Court.

“This loss is a setback, but as Federal Court Chief Justice Mortimer noted in her decision on court costs: ‘…the environment cannot speak for itself; someone must speak for it’.

“Public interest litigation like this is vital for a healthy democracy. Communities have the right to challenge the lawfulness of government decisions – especially when these decisions have such far-ranging impacts as fossil fuel approvals in an era of rapidly accelerating climate change.”

MEDIA BACKGROUND

This High Court outcome follows a decision of the full Federal Court in May, which confirmed the minister’s approach in her risk assessment decisions of two new coal expansions was lawful.

Mining companies Narrabri Coal Operations (a subsidiary of Whitehaven Coal) and MACH Energy joined Minister Tanya Plibersek as respondents in these cases, defending her refusal to act on the scientific evidence of climate risk.

FOSSIL FUEL APPROVALS

This High Court application again puts the spotlight on Australia’s national environment laws.

Under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act):

• Right now, there are plans for 38 new coal mines and expansions on the Minister’s desk awaiting approval.
• Australia’s current Environment Minister Tanya Plibersek has so far approved 8 new gas projects and 5 new coal mines and expansions.
• There are currently 116 new coal and gas projects in the pipeline in Australia.
• Since the EPBC Act came into force 25 years ago, Australia’s Environment Ministers have approved more than 740 new coal and gas mines and expansions, and rejected only one.

THE COAL MINES

Narrabri Underground Mine Stage 3 Extension Project: A subsidiary of Whitehaven Coal plans to extend underground mining operations at the Narrabri thermal coal mine until 2044, an additional 13 years.

• The evidence ECoCeQ presented in the Federal Court painted a devastating picture of the climate impact of the Narrabri coal mine, which would potentially fuel 259 million tonnes of greenhouse gas emissions.
• The Whitehaven subsidiary plans to extract approximately 82 million additional tonnes of coal.
• Locally, it would also destroy 500 hectares of critical habitat for endangered koalas.

Mount Pleasant Optimisation Project: MACH Energy plans to significantly expand open cut thermal coal mining in its Muswellbrook Mount Pleasant mine site in the NSW Hunter Valley, until almost 2050.

• If approved, Mount Pleasant would become the biggest coal mine in Australia, three times larger than the Adani coal mine approved by the Morrison Government.
• MACH Energy seeks to double its annual coal extraction to a total of 444 million tonnes and extend the mine’s operations until 2048.

Vision of the Mount Pleasant mine is available here.

THE LIVING WONDERS CLIMATE CASES

• Legal challenges – In July 2022, the Environment Council of Central Queensland (ECoCeQ) requested the federal Environment Minister reconsider the environmental risk assessment for 19 large coal and gas projects under Australia’s national environment laws. ECoCeQ argued the risk assessment of these coal and gas projects should recognise that their climate impact will harm close to 2,000 nationally significant species, places, and ecological communities includes iconic wildlife like koalas and turtles, as well as World and National Heritage areas like the Great Barrier Reef, the Tarkine and Kakadu.
• Environment Minister accepts the evidence but refuses to act – While the Minister accepted the evidence that these projects will have adverse effects on our climate and on very many protected species and places across our environment, she refused to act on that evidence to change the risk assessment of Whitehaven’s Narrabri coal mine expansion, MACH Energy’s Mount Pleasant Optimisation Project, and Idemitsu’s Ensham coal mine extension.
• Federal Court cases – ECoCeQ challenged the Minister decisions in the Federal Court and appealed to the Full Federal Court, arguing the Minister made key legal errors when she denied the impact of the serious and irreversible climate harm these new coal projects are likely to cause. In May 2024, the Full Federal Court dismissed the Living Wonders appeals.
• ECoCeQ has now lost its application for special leave to the High Court. ECoCeQ had asked the High Court to clarify the Australian Environment Minister’s legal obligations when assessing two coal mines for their grave risk of climate harm right across the Australian environment.

Media contact: Call or email Miki Perkins on (03) 8341 3110 or [email protected]

The Environment Council of Central Queensland is a small volunteer group acting as a voice for the environment in the region. Surround by reefs, rainforest, koalas, and a staggering number of coal mines, the group formed out of rapidly growing concern for the health and future of the local environment and the impact local developments are having on our planet’s climate.

Environmental Justice Australia is a national public interest legal organisation. For more than 30 years, EJA has used the law for safe climate, thriving nature, environmental justice and a radically better world.