Climate change in Court
In February 2018, we represented the Wollar Progress Association in the Land and Environment Court, challenging the NSW Planning Assessment Commission (PAC) decision to allow the extension of the Wilpinjong open-cut coal mine at Wollar, near Mudgee. A substantial proportion of Wilpinjong coal would be burned at power stations within NSW. This important case will test laws designed to assess the climate change impacts of such mining, including 'downstream' emissions from the burning of coal sold to power stations.
By pursuing cases like Wilpinjong, we hold key decision-makers to account, ensuring that in such matters, careful consideration is given to the contribution that the burning of coal mined in NSW will make to Australia’s 2030 target of 26-28% reduction in greenhouse gas emissions from 2005 levels, and NSW’s target of net zero emissions by 2050.
If the case is successful on this ground, the Wilpinjong mine extension will not be able to proceed without prior consideration of the climate implications of the extension, including looking at Government commitments to reduce greenhouse gas emissions globally. This will have implications for the approval of every other coal project put forward for consideration in NSW. There are 11 coal mine proposals currently going through the approvals process in NSW (including greenfield mines) all of which would need to consider the urgent need to reduce global greenhouse gas emissions to avoid dangerous climate change.
MINING COMPANY GIVEN MERITS APPEAL RIGHTS NOT AVAILABLE TO THE PUBLIC
Last December, we were thrilled for our client Groundswell Gloucester when the NSW Planning Assessment Commission refused consent for a coal mine planned for Gloucester. The PAC found the economic benefits of the Rocky Hill open-cut coal project sought by Gloucester Resources Ltd (GRL) would be outweighed "by the detriment to the quality of life for residents near the mine site. In balancing both the benefits and adverse impacts, the commission finds that the project is not in the public interest."
Then, in February, we learnt that GRL had filed an appeal in Court. Planning Minister Anthony Roberts granted them the right to appeal, despite having consistently stripped merits appeal rights from communities who object to mining projects. This gave GRL ‘a second bite of the cherry’ not offered to the community.
Our CEO, David Morris, asked; "Why are communities consistently denied merits appeal rights for coal mine approvals, but the Government ensures that a mining proponent has them following a project refusal? It reflects a total imbalance in the system and a troubling inconsistency in the application of the law with respect to mining projects in this state. The Government's lack of communication with our client Groundswell Gloucester ... is really appalling, our client now finds itself behind the eight-ball and without an automatic right to participate in the merits review of the project."
Groundswell Gloucester chair Julie Lyford said the group had been fighting the proposal for 12 years and the decision to appeal would seriously affect the health and well-being of many locals; “While this announcement comes as no surprise, it demonstrates that Gloucester Resources and the mining sector are prepared to ride roughshod over small communities, irrespective of the wishes of the community. If Gloucester Resources thinks that Gloucester will take this lying down, then they are sorely mistaken.”
EDO NSW will represent Groundswell Gloucester in Court opposing GRL’s appeal of the NSW PAC’s finding that the mine was not in the public interest, which will be heard in the Land and Environment Court in August. Our client is seeking to present expert evidence to the Court on the climate impacts of new coal mines, arguing that no new coal mines can be approved if we are to achieve safe levels of greenhouse emissions to avoid dangerous climate change. They will also seek to put expert evidence to the Court on the devastating social impacts of mining on the community.
MERITS REVIEW RIGHTS: allowing communities access to justice
Introduced over 35 years ago as part of the forward thinking reforms that were largely successful in depoliticising environmental decision making and improving the integrity of the Planning System, merits review rights allow the community to challenge a development approval on a project’s ‘merits’, i.e, whether the environmental, social or economic impacts are acceptable and what, on the available evidence, is the correct or preferable decision.
Essentially they provide an independent forum - the Land and Environment Court (LEC) - to test evidence about the predicted impacts of a development on the environment, the community and the economy. The LEC provides an equal playing field for the community as a legitimate participant in the Planning System, allowing communities to present expert evidence about impacts, and test and challenge the level of impacts claimed by proponents and the NSW Government. The Hon. Peter Biscoe QC, former Judge of the LEC, notes that, “during the last decade ICAC has more than once recommended to the NSW government that third party merits appeal rights should be extended to improve transparency and accountability of development approval processes.”
So why have the community’s rights to access merits review been eroded? Since 2008, the Minister for Planning has had the power to refer large developments to the PAC for a public hearing before a decision about whether to approve a project is made. When a public hearing is held, the community loses its right to challenge any project approval based on its environmental merits.
Jackie French, involved in the merits appeal against the Dargues Reef gold mine: “The community's merit appeal led to wider and more stringent Conditions of Approval, benefitting not just the community and environment, but improving the safety of the Project and the long term benefit to the NSW economy. Merits review gave us a voice, a chance to have independent expert views heard, a seat at the table.”