Conservation groups say Australia’s environment laws must be changed to include a climate trigger after the federal court dismissed a legal challenge against the environment minister’s decisions on two proposed coalmine expansions.
Known as the living wonders case, the legal action launched by the Environment Council of Central Queensland (ECoCeQ) alleged the minister, Tanya Plibersek, failed to protect the environment from climate harm when she decided the projects could move to the next stage of the federal assessment process.
The two mines in NSW were Whitehaven Coal’s proposed extension of its Narrabri underground coal project and MACH Energy’s planned expansion of its Mount Pleasant operations.
ECoCeQ had sought a judicial review of Plibersek’s decisions.
In a judgment delivered Wednesday afternoon, Justice Shaun McElwaine dismissed the case, finding the minister had not acted outside of her obligations.
McElwaine said whether or not the minister should explicitly consider climate change in the manner requested by the conservation group when making decisions under national environmental laws was a matter for the parliament.
ECoCeQ legal representative, Environmental Justice Australia, said unless the case was appealed against, the outcome “effectively clears the way for the minister to ignore climate change in her risk assessment of all new coal and gas projects on her desk”.
The ECoCeQ president, Christine Carlisle, said the group’s members respected the court’s decision but was “bitterly disappointed and alarmed by what this means for our living wonders”.
“I am alarmed that under our law as it currently stands, it is somehow not our environment minister’s job to protect our environment from the biggest threat – climate change from new gas and coal,” she said.
The EJA lawyer and co-chief executive, Elizabeth McKinnon, said the firm’s client was considering its legal options. “But whatever happens next, today’s decision does not change the science.”
In his judgment, McElwaine said the minister had not disputed that the extraction and burning of coal “unequivocally has contributed to climate change with severe adverse consequences for our climate”. The judgment said the minister had also accepted that climate change was affecting or would affect species, places and ecosystems protected under Australia’s national laws.
Carmel Flint, the national coordinator at the Lock the Gate Alliance, said the judgment demonstrated Australia’s environmental laws were “fundamentally broken”.
“The only genuine path forward now is to urgently legislate a climate trigger in national environment laws.”
In a statement, Plibersek said the government would work through the implications of the judgment.
She said no decision had been made yet on whether the two projects would be approved. Plibsersek said the government had policies to address climate change.
“Our strong new climate safeguard laws, developed with the Greens Party and independents, mean that coal and gas projects must comply with Australia’s commitment to net zero,” she said.
She said the government was also “approving more renewable energy than ever before”. That included an approval this week for a battery project in Victoria that would be one of the world’s largest, and another recent approval for a solar farm in Townsville that would produce enough power for about 200,000 households.
The government plans to release draft legislation to reform the Environment Protection and Biodiversity Conservation Act by the end of the year.
Despite longstanding calls for the laws to be amended to include a climate trigger, the government does not plan to introduce one, nor was it one of the recommendations of a 2020 review of the act.
The review instead recommended that proposed national environmental standards explicitly require developers to disclose the full emissions of the development and “consider the likely effectiveness of avoidance or mitigation measures on nationally protected matters under specified climate change scenarios”.
A bill introduced by the Greens to establish a climate trigger is before the Senate.
The Greens environment spokesperson, Sarah Hanson-Young, called on Plibersek to back the climate trigger bill. “My door is open for that conversation in good faith.”
