Conservationists will ask the high court to examine whether the environment minister, Tanya Plibersek, should have assessed the climate damage that would be caused by two large coalmine developments.
The Environment Council of Central Queensland has sought special leave in Australia’s highest court to appeal against the federal court’s dismissal of what is known as the Living Wonders case.
The council alleged Plibersek failed to protect the environment from harm caused by the climate crisis when she decided two proposed thermal coalmine expansions could move to the next stage of the assessment process.
Represented by lawyers from Environmental Justice Australia, the council argued in the federal court that Plibersek was legally required to protect the environment – including koalas and the Great Barrier Reef – from the climate harm the projects would cause.
One of the proposed developments, MACH Energy’s planned expansion of its Mount Pleasant operations in New South Wales, could become one of Australia’s biggest coalmines based on coal volume if it is approved and reaches the proposed production capacity of 21m tonnes of run-of-mine coal each year.
The other is Whitehaven Coal’s proposed extension of its Narrabri underground coal project in NSW, which would extend the life of the mine by 13 years to 2044.
Together, the projects would cause more than a billion tonnes of greenhouse gas emissions, including emissions after the coal is sold, exported and burned.
“We’re a small volunteer group. We don’t want to go to the high court, but our climate is breaking down and we feel we have no choice,” said Christine Carlisle, the president of the Environment Council of Central Queensland.
“The outcome of this high court application stands to impact all pending fossil fuel projects currently awaiting approval on the minister’s desk.”
Elizabeth McKinnon, the co-chief executive of EJA, said the council had applied to the high court because its members argued the Living Wonders case presented a question of law of significant public importance.
“If leave is granted, our client will ask the high court to clarify the Australian environment minister’s legal obligations when assessing huge coalmines for their grave risk of climate harm,” she said.
The case, if it goes ahead, would test the scope of Australia’s national environmental laws, the Environment Protection and Biodiversity Conservation Act.
When the full federal court dismissed the council’s appeal in May, its judgment pointed to the “ill-suitedness” of the current laws to assessing serious threats such as global heating and its effects on Australia’s wildlife and ecosystems.
Conservationists, scientists and independent and Greens MPs have long pointed to this as a gap in Australia’s environment laws and called for it to be addressed with a climate trigger.
The high court must first decide if it will grant special leave. If it is granted the council would then file its appeals later this year.
A spokesperson for Plibersek said because the matter was before the high court the minister was unable to comment.
MACH Energy declined to comment. Whitehaven Coal has been approached for comment.
