Climate Change & Energy
EDO NSW has assisted community groups and individuals to challenge decisions that did not take the impacts of climate change into account, and draw attention to the deficiencies of environmental and planning laws in dealing with climate change.
Mackay Conservation Group v Commonwealth of Australia and Adani Mining
On behalf of the Mackay Conservation Group (MCG), EDO NSW successfully challenged the Federal Government’s approval of the Carmichael coal mine in central Queensland, which would be one of the largest coal mines in the world.
MCG’s claim alleged that Federal Environment Minister, Greg Hunt, failed to properly consider the impact of the Carmichael mine on the Great Barrier Reef, when he approved the project by Indian company, Adani Group, in July last year.
Given that climate change is the greatest threat to the survival of the Reef, Mackay Conservation Group says that the Minister should have considered greenhouse gas emissions arising from the burning of the coal by Adani in India, not just the emissions from mining the coal.
MCG says that under the Environment Protection and Biodiversity Conservation Act 1999, the Minister unlawfully limited his consideration of greenhouse gas emissions from the mine to those that are reportable under the under the National Greenhouse and Energy Reporting Act 2007 Act, which covers only emissions from mine operations.
However, emissions from the burning of the coal once it is exported to India will by far eclipse any emissions generated in Australia by the mining process itself.
The claim also alleged that the Minister failed to properly consider Adani’s poor environmental record in India before approving the mine. In 2013 the Indian government found Adani guilty of serious breaches of Indian environmental law, including illegally clearing mangroves and destroying tidal creeks. Indian Courts had also found in 2012 that infrastructure associated with the Adani’s port in Mundra had been built without environmental approvals. The case alleged that the Minister ignored that evidence, instead relying on an earlier statement made by Adani in 2010 that it has a good environmental record overseas.
However it was the Minister's failure to take into account the approved conservation advices for the Yakka Skink and the Ornamental Snake that resulted in the victory.
EDO NSW is grateful for the assistance of barristers Geoffrey Kennett SC, Ashley Stafford, and Chris McGrath in the preparation and running of this case.
Read our media release.
Read our blog responding to claims the win was a mere 'technical hitch'.
Read our blog about the proposed changes to the Environment Protection & Biodiversity Conservation Act in the wake of the decision.
On 15 October 2015, the Federal Minster announced the re-approval of the mine, with additional compliance conditions. Read the Minister's statement of reasons.
Anvil Hill Project Watch Association Inc v Minister for the Environment and others
EDO NSW acted for the Anvil Hill Project Watch Association Inc (AHPWA) in Federal Court proceedings, challenging a decision of the delegate of the Federal Minister for the Environment and Water Resources, that the Anvil Hill project (a proposed large open cut coal mine in the Hunter Valley) was not a 'controlled action' under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
The decision of the Minister's delegate means that the project will not have to undergo any sort of environmental assessment at the Commonwealth level because it is not, in the Commonwealth's view, likely to have a significant impact on a matter of national environmental significance. This case raises important issues about the extent to which, and the manner in which, the Commonwealth needs to consider greenhouse gas emissions arising from large mining or other industrial developments in Australia.
On September 20 2007, the Federal Court dismissed the Application and AHPWA appealed to the Full Federal Court.
In the appeal it was argued that a decision by the Minister whether an action is a controlled action under s.75(1) of the EPBC Act amounts to a jurisdictional fact; and also that it was not permissible for the Minister to take into account private ecological community classification systems when considering whether an EEC is present on site.
Justice Stone had dismissed these arguments at first instance and her Honour's judgment was upheld by the Full Court.
Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited
In 2013, EDO NSW represented the Bulga Milbrodale Progress Association in its appeal of an approval to extend to an open cut coal mine operated by Warkworth Mining Ltd (owned by Rio Tinto). The project would have extended the life of the mine for 10 more years (until 2031), allowed the extraction of an additional 18 million tonnes of coal from the mine every year, and would have brought the mine closer to Bulga village.
Controversially, the approval also allowed the open cut mining of part of a biodiversity offset that was required to be protected as a condition of the existing approval given in 2003. As well as providing habitat for threatened plants and animals, the offset area acts as a buffer between the village of Bulga and the mine. The offset area is ecologically significant, as it contains a unique and endangered ecological community, Warkworth Sands Woodland, and is home to threatened squirrel glider and speckled warbler. This Warkworth Sands Woodland is unique to the area and only 13 per cent of the original forest remains.
The Association also argued that the social impacts of the extension on Bulga residents would be unacceptable, particularly as a result of increased noise and dust. The Association also presented expert evidence about the economic impacts of the project. This was the first time that environmental economics had been presented before the court in deciding a mining project.
The Association sought refusal of the mine extension on the basis that the mining of the biodiversity offset is contrary to the public interest and ecologically sustainable development, and that the expansion will result in detrimental economic and social impacts on the Bulga community that are contrary to the principles of ecologically sustainable development.
The Land and Environment Court upheld the Association’s appeal and disapproved the project application. The Court concluded that the project would have significant and unacceptable impacts on biodiversity, as well as unacceptable noise and social impacts. The Court considered that the proposed conditions of approval were inadequate and would not allow the project to achieve satisfactory levels of impact on the environment, including the residents and community of Bulga. The Court found that these matters outweighed the substantial economic benefits and positive social impacts of the project on the region, and that the extension project should not go ahead.
Mining company appeal
Shortly after the Land and Environment Court’s disapproval of the project, Warkworth appealed to the NSW Court of Appeal, arguing that the Land and Environment Court had made legal errors in disapproving the project. The Court of Appeal unanimously dismissed Warkworth’s appeal, finding no fault with the Land and Environment Court’s decision that the economic benefits of the coal mine did not outweigh the significant impacts on Bulga residents and the destruction of rare forests containing endangered plant and animal species. The Court dismissed Warkworth’s appeal and ordered Warkworth to pay the Association’s costs.
EDO NSW is very grateful to Senior Counsel John Robson and Counsel Robert White for their advice and advocacy in the appeal, and to Counsel Robert White for his advice and advocacy in the matter at first hearing.
New application for the mine extension
In 2015, Warkworth lodged a new, but essentially the same, application for an extension to the mine. The Planning Assessment Commission held a number of public hearings into the application, which means that the community’s appeal rights to have the Land and Environment Court rehear the case have been extinguished. The PAC approved the new application in 2015.
EDO NSW continues to assist the Bulga Milbrodale Progress Association Inc in its tireless efforts to seek environmental and social justice.
We acted for the Hunter Environment Lobby in separate proceedings seeking access to documents relating to the new application.
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Minister for Mineral Resources
EDO NSW, on behlaf of Caroona Coal Action Group Inc, took proceedings in the Land and Environment Court challenging the exploration licence and coal authorisation granted to Coal Mines Australia Pty Ltd by the Minister for Mineral Resources.
In the proceedings, Caroona Coal Action Group Inc argued that the licence was invalid on three (3) grounds. The first ground was that the licence, which was transferred from the Director-General of the Department of Mineral Resources to Coal Mines Australia Pty Ltd, was not validly renewed in the past, such that there was no valid licence in place to transfer. The second ground was that the procedure, as per the Mining Act, was not followed by the Minister when the licence was transferred to Coal Mines Australia Pty Ltd, because the Minister purported to grant a new licence, rather than transfer an existing one. Finally, the Caroona Coal Action Group Inc argued that the Minister exceeded his power when granting the licence to Coal Mines Australia Pty Ltd because it was granted for a period exceeding 5 years, the maximum term for an exploration licence allowed by the Mining Act.
The Court rejected all 3 grounds. The Court found that the first ground was not established by the applicant, finding that the documentary evidence did not show that the Mining Act was not complied with when the license was renewed prior to its partial transfer to Coal Mines Australia. In relation to the second ground the Court found that the legislative requirements for a licence transfer were met. The third ground, although established, was not significant enough to render the grant of the licence void.
Caroona Coal Action Group Inc appealed the decision of his Honour Justice Preston on two grounds. Firstly, that the Minister for Mineral Resources did not satisfy himself that special circumstances existed to justify the renewal of the licence over an area larger than half of the land area as required by s 114(6) of the Mining Act 1992; Secondly, that the Minister and Coal Mines Australia were required by s 160 of the Mining Act 1992 to sign a document comprising an 'instrument of transfer', but failed to do so.
The Court of Appeal rejected both grounds of appeal. With respect to the first ground, the court concluded that Preston CJ had not made an error of law in concluding that Caroona Coal Action Group had not discharged the onus of establishing on the balance of probabilities that the Minister did not form the relevant mental state of satisfaction that special circumstances existed. With respect to the second ground, the court held that the transfer of an exploration licence under Part 7 of the Mining Act 1992 does not require a "transfer document", rather the agreement of the parties to the transfer is signified by the application made by the licence holder and the consent of the proposed transferee.
Many thanks to Bruce McClintock and Jackie Gleeson, who appeared as counsel for Caroona Coal Action Group Inc in both proceedings.
In a related judgment, Preston CJ ordered CCAG to pay the costs of both respondents (Coal Mines Australia and the Minister for Mineral Resources) including the costs of the application for costs.
In his judgment Preston CJ stressed the need for a "principled exercise of the costs discretion" and has introduced a new 3-step approach to awarding costs in public interest litigation.
In further related proceedings, Caroona Coal Action Group argued that the public interest in the principle of open justice should defeat the confidentiality orders sought by Coal Mines Australia Pty Limited to restrict public access to its Expression of Interest (EOI) in the Caroona mining exploration license. Preston CJ rejected Caroona Coal Action Group's arguments; finding that particular statements and data in the EOI were confidential. Preston CJ held that confidentiality orders should be made which would continue to restrict access to the whole EOI solely to Caroona Coal Action Group's legal advisors; a Redacted EOI be produced and filed which would allow public access to the EOI without the confidential material; and that these orders would not offend the principle of open justice.
Judgment - Order on costs
Drake-Brockman v Minister for Planning
EDO NSW commenced proceedings in the Land and Environment Court on behalf of Mathew Drake-Brockman. The proceedings challenged the validity of the approval for re-development of the Carlton United Brewery site for 1600 residential apartments, commercial offices and retail premises.
The case challenged the application of Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), which grants the Minister for Planning broad discretion to approve major projects of State significance. It was argued that the Minister failed to properly consider the principles of Ecological Sustainable Development (ESD) when approving the site. Judgment was handed down on 13 August 2007 in favour of the Minister for Planning. In her decision, Jagot J held that the Director-General had paid more than mere lip service to the principles of ESD, and had satisfactorily considered all necessary matters consistent with the requirements of the EP&A Act.
EDO NSW would like to thank Mr F Douglas and Mr J Lazarus who acted as counsel for the applicant in this matter.
Greenpeace Australia Limited v Redbank Power Company Pty Limited
EDO NSW acted for Greenpeace challenging the approval of a power station in the Hunter Valley. Despite the claims of the company, it was argued that the power station would result in a net increase of carbon dioxide emissions. The approval was further challenged on the bases that that there was no demand for the new power station and that it contradicted both Australian and international policies to reduce greenhouse gas emissions. The Court held that at present the law did not restrict the building of new power stations and the appeal was dismissed.
Hunter Environment Lobby Inc v Minister for Planning and Ulan Coal Mines Ltd
EDO NSW acted for the Hunter Environment Lobby in a merits appeal that challenged the Minister for Planning's approval of a proposed expansion Ulan coal mine’s underground mining operations and new open cut mining operation.
On 24 November 2012 the Court handed down judgment in Hunter Environment Lobby Inc v Minister for Planning  NSWLEC 221. The Court held that approval should in principle be granted to Ulan’s project, subject to further submissions from the parties in order to finalise the conditions in relation to groundwater, biodiversity offsets and the offsetting of Ulan’s scope 1 greenhouse gas (GHG) emissions.
The groundwater and biodiversity offset conditions were finalised during further proceedings in February 2012. The Court, following its decision in December that a biodiversity corridor to increase connectivity between two distinct biodiversity offset areas was appropriate, finalised the area of that corridor and commensurate conditions.
Regarding the GHG condition, Hunter Environment Lobby argued that the Ulan mine should be required to offset its scope 1 GHG emissions to the extent that they are not required to pay a carbon price for those emissions under the Clean Energy Act 2011 (Cth).
In a judgment handed down on 13 March 2012, Hunter Environment Lobby Inc v Minister for Planning (No 2)  NSWLEC 40, the Court declined to impose the GHG condition because it found that the Clean Energy Act 2011 and related legislation would cover most of the mine’s activities which result in scope 1 emissions and therefore the purpose of the condition would be met by the legislation. The Court also found that the extent to which the Clean Energy Act 2011 would not cover all of the mine’s scope 1 emissions was negligible and therefore the proposed condition was unnecessary. Finally, the Court found that there is an unsatisfactory level of uncertainty in relation to the offsets market sought to be utilised under the condition.
This was a landmark case in that the condition sought was the first of its kind to be considered by the Court. The Court’s original judgment in December, in which it expressed an intention to impose the GHG condition pending consideration of the implication of the Clean Energy legislation, sets a precedent which may prove useful in other contexts.
EDO NSW would like to acknowledge Philip Clay, SC for his advocacy in these proceedings.
On 8 May 2012, the Land and Environment Court handed down its judgment on the question of costs in the Ulan case. The Court rejected Ulan Coal Mines Ltd's application for costs incurred in relation to the GHG emissions issue, and also ordered that Ulan pay the Applicant's costs of the costs hearing. This is a strong judgment in favour of public interest litigation.
EDO NSW would like to congratulate and thank Mark Seymour, counsel, who appeared for the Hunter Environment Lobby.
Judgment - Order on costs
Illawarra Residents for Responsible Mining Inc v Gujarat NRE Coking Coal Ltd
EDO NSW represented Illawarra Residents for Responsible Mining Inc (IRRM) in Class 4 judicial review proceedings in in the Land and Environment Court of NSW. IRRM sought among other things, an order restraining Gujarat from carrying out mining at an area referred to as ‘Longwall 4' until specific approval or development consent under the Environmental Planning & Assessment Act 1979 (EP&A Act) was granted.
In April 2012, Gujarat commenced mining operations at Longwall 4. Our client is concerned that the operations being undertaken, although within the area covered by consolidated coal licence 745, are not within the area to which the original Project Approval gives approval to carry out mining operations. Furthermore, that in commencing and continuing operations at Longwall 4 without project approval under Part 3A or development consent under Part 4, Gujarat is in breach of the EP&A Act.
Subsequent to the commencement of proceedings, Gujarat made an application to the Court requiring IRRM to provide a bank guarantee for the sum of $75,000 to secure the respondent's costs in the event that proceedings were unsuccessful. On 22 November 2012, the Court handed down judgement in relation to this application. The Court made orders upholding Gujarat's motion for security for costs, but settling the sum at $40,000. The substantive proceedings were stayed pending compliance with this requirement by IRRM, with which it was unable to comply.
On 13 December 2012 the proceedings were discontinued by consent of both parties.
EDO NSW is grateful to barrister Mark Seymour for his assistance in these proceedings.
Ned Haughton v Minister for Planning and Delta Electricity
EDO NSW acted for Ned Haughton - a student and environmental activist challenging the Minister for Planning's approvals of two new coal or gas fired power stations - Bayswater B Power Station and the Mount Piper Power Station Extension.
Both proposals were declared to be 'critical infrastructure' projects under the Environmental Planning and Assessment Act 1979 (the EP&A Act), which means that the approvals could not be challenged by third party objectors without the Minister's permission.
Mr Haughton challenged the validity of the approvals on several grounds but, most significantly, on the ground that the Minister failed to consider the impact of the projects (both alone and together) on climate change. Mr Haughton argued that the Minister was required to do so as part of his duty to consider the public interest. Similarly, Mr Haughton sought to establish that the Minister failed to consider the principles of ecologically sustainable development (ESD), particularly the precautionary principle and the principle of intergenerational equity, as he was also required to do as part of his duty to consider the public interest.
Importantly, Mr Haughton also challenged the privative clause in the EP&A Act which sought to prevent judicial review of breaches of the EP&A Act in respect of critical infrastructure projects.
On this issue, Mr Haughton was successful. The Court found that the privative clause in the EP&A Act could not remove the jurisdiction of the Court and that any person can bring proceedings to address alleged breaches of the Act.
However, Mr Haughton was unsuccessful on the remaining grounds. The Court found that although the Minister is required to consider the public interest, that requirement is general in terms of what it encompasses. Therefore, the Minister was not bound to consider any specific element of the public interest such as the principles of ESD or the impacts of the development on climate change. Rather, these are issues that can be balanced with other issues relevant to the public interest, including the need to secure the supply of electricity for the State. A failure to consider any one of these issues will not invalidate the decision. The Minister was not required to refer specifically to the principles of ESD in his decision.
EDO NSW acknowledges and thanks Ms C Adamson SC, Ms S Pritchard and Ms C Burnett of Counsel for their appearance and contribution to the case.
Northern Inland Council for the Environment v Minister for Environment (Maules Creek and Boggabri Mine Cases)
EDO NSW acted for the Northern Inland Council for the Environment in challenging the Commonwealth approvals for two coal mines in the Leard State Forest near Boggabri in north-western NSW.
On December 20, 2013, the Federal Court dismissed both challenges, one for the Maules Creek mine, owned by Whitehaven Coal, the other for an expansion of the existing Boggabri Mine, owned by Idemitsu.
The projects will result in the clearing of 626 hectares of the critically endangered Box Gum Woodland and 2315ha of habitat for the endangered Swift Parrot, the endangered Regent Honeyeater, the vulnerable Greater Long-eared Bat, and the endangered climbing plant species Tylophera linearis.
The group argued that the Minister took into account matters that he was not permitted by law to take into account. It argued that the Minister had taken into account the leaking of commercially sensitive information about the projects by the NSW State Government and that information materially impacted on his decision to approve the coal mine projects.
The two approvals relied heavily on offsets to compensate for significant impacts on endangered communities and threatened species. Offsets are parcels of land, outside the project area, which are intended to compensate for the loss habitat for endangered species in the project area.
The group also argued that the Minister made a further legal error by not requiring independent verification of the offsets before the approval was granted, rendering the offset conditions imposed uncertain. It also argued that the Minister was required under the law to take into account approved conservation advices for listed threatened species and ecological communities, and he did not do so.
The Federal Court found that there was no legal error in the decision-making process. The Court found that the Federal Environment Minister’s decision was not materially impacted by the taking into account of the irrelevant material and that he had the power to approve the clearing of the Leard State Forest before biodiversity offsets have been established. The judge noted “this would undoubtedly be undesirable from the perspective of the environmental protection and preservation...” but was nevertheless permitted by the law.
EDO NSW is grateful for the assistance of barristers Sarah Pritchard SC and Craig Lenehan who acted as counsel for the Northern Inland Council for the Environment.
Peter Gray & Naomi Hodgson v Macquarie Generation
On behalf of Peter Gray and Naomi Hodgson, EDO NSW commenced civil enforcement proceedings in the Land and Environment Court against Macquarie Generation. The proceedings sought a declaration that the State-owned company has been wilfully or negligently disposing of waste at their Bayswater Power Station by emitting carbon dioxide into the atmosphere in a manner that has harmed or is likely to harm the environment in contravention of the Protection of the Environment Operations Act 1997 (NSW).
Mr Gray and Ms Hodgson also sought an injunction requiring Macquarie Generation to immediately cease disposing of waste through the emission of carbon dioxide into the atmosphere.
In carrying out its electricity generation activities, Macquarie Generation has been issued with an environment protection licence which licences the company to emit certain waste but not carbon dioxide.
Bayswater Power Station, located in the Upper Hunter Valley, has the highest carbon dioxide emissions of all power stations in NSW.
Macquarie Generation filed a motion to have the matter dismissed. Justice Pain found that the Applicants' argument that Macquarie Generation is not authorised to emit any carbon dioxide at all was unlikely to succeed and dismissed that part of their case.
However, Justice Pain did not dismiss the Applicants' secondary argument. This was that even if Macquarie Generation has an implied authority to emit some amount of carbon dioxide in generating electricity, that authority is limited to an amount which has reasonable regard and care for people and the environment. This part of the Applicants' case was permitted to proceed to trial.
In 2011 Macquarie Generation appealed to the NSW Court Appeal arguing that Justice Pain was wrong in finding that Macquarie Generation’s licence to pollute contains an implied limitation on how much carbon dioxide can be released.
The matter was heard by the Court of Appeal on 13 September 2011. Sadly, Peter Gray passed away before the hearing could take place. The Court of Appeal ordered that Ms Hodgson could continue the proceedings in her name alone.
Judgment was handed down on 22 December 2011.
The Court of Appeal held that Macquarie Generation’s licence to pollute did not contain the implied (or common law) limitation on the amount of carbon dioxide that could be released. The licence was therefore a complete defence to the argument that Macquarie Generation were wilfully or negligently disposing of waste, and they therefore found that the case had no reasonable prospects of success.
The Court also found that the licence didn’t contain a limit on how much coal could be consumed at the power station.
EDO NSW is grateful to barristers Ian Lloyd QC and Mr Ashley Stafford who appeared before the Court of Appeal on behalf of Mr Gray and Ms Hodgson, and barristers Craig Lenehan and Lisa Doust who assisted with the earlier cases.
Judgment - Costs
Judgment - Amended points of claim
Walker v Minister for Planning
EDO NSW assisted Jill Walker, a local resident, in a successful Land and Environment Court challenge to a Concept Plan approval of a development at Sandon Point.
The proposed development was for up to 285 homes and an aged care facility to be built on flood-prone coastal land.
It was argued that the Minister failed to take into consideration the recommendations and findings of a Commission of Inquiry report, and that the Minister failed to apply the principles of ecologically sustainable development (ESD) when deciding to approve the proposal.
In a detailed judgment, Justice Biscoe reviewed the principles of ESD as well as US and Australian case law on climate change. He found that the Minister for Planning had failed to consider ESD by failing to consider whether the impacts of the proposed development would be compounded by climate change; in particular, by failing to consider whether changed weather patterns would lead to an increased flood risk in connection with the proposed development in circumstances where flooding was identified as a major constraint on development of the site.
The case has important implications for how the Minister must deal with major projects under Part 3A of the Environmental Planning and Assessment Act 1979.
The Minister for Planning successfully appealed to the NSW Supreme Court, Court of Appeal. Ms Walker then sought special leave to appeal to the High Court. The application was heard in March 2009. The High Court declined to grant leave on the basis that while there were valid arguments in her favour, they did not think those arguments would succeed if the appeal was heard by the High Court.
EDO NSW is grateful to barristers Matthew Baird and Greg Young for their assistance in this matter.
Judgment - Order on costs (29 November 2007)
Amended Notice of Appeal (3 April 2008)
Judgment - Appeal (24 September 2008)
Case summary - Appeal (24 September 2008)
Application for special leave to appeal (22 October 2008)
Judgment - Appeal - Order on costs (3 December 2008)