Wallarah2 hearing - EDO NSW

Legal challenge to Wallarah 2 coal mine wraps up

An intense three-day hearing in the Land and Environment Court wrapped up on Wednesday 14 November.

EDO NSW, on behalf of the Australian Coal Alliance (ACA), argued in Court that the Planning Assessment Commission’s (PAC) decision to approve the Wallarah 2 longwall coal mine on the Central Coast was unlawful and invalid.

Barristers Craig Leggat SC and Josie Walker argued against the approval of the mine on the basis of climate change, ecologically sustainable development, impacts to water resources and flooding impacts.

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The legal team: Craig Leggat SC, Josie Walker of Counsel, Brendan Dobbie, Acting Principal Solicitor and Isaac St Clair-Burns, Solicitor of EDO NSW.

 “Our client ACA argued that the PAC’s decision was invalid on 10 specific grounds”, said David Morris, CEO of EDO NSW. "We focused on the PAC’s assessment of the mine’s downstream greenhouse gas emissions and impacts to the Central Coast water supply and likely flood-affected properties.”

The Wallarah 2 project is predicted to have impacts on 88 private properties, which will be exposed, in varying degrees, to increased risks of flooding. The mine has proposed various options to mitigate those impacts or, where that is not practicable, to make arrangements for the voluntary purchase of flood affected properties. The ACA questioned the legal validity of those conditions.

In addition to the predicted impacts from flooding and to the Central Coast water supply, Wallarah 2 will make a substantial contribution to greenhouse gas emissions – estimated to be more than 264 million tonnes of CO2 over the 28-year life of the mine. NSW law required the PAC to consider an assessment of those emissions when approving the mine. However, the ACA argued in Court that the PAC specifically disavowed consideration of downstream greenhouse gas emissions and therefore the approval was contrary to the law and also to the principles of ecologically sustainable development, which includes the principle of intergenerational equity.

“This case is by its very nature climate change litigation, which we’re seeing more and more in Australia. We argued that the law in this case wasn’t followed with respect to climate change impacts and the principle of intergenerational equity”, David Morris said.

Of additional interest, this was a paperless trial, one of the first that EDO NSW has been involved with, and it proceeded very smoothly.

A judgment is expected sometime before the end of May 2019.

Further detail on this case can be found here: www.edonsw.org.au/wallarah2_aca