Successful climate change challenge to open cut coal mine
The New South Wales Land and Environment Court has refused a development application by Gloucester Resources Limited (GRL) for the Rocky Hill Coal Project (Project) on grounds including climate change impacts of the mine.
The decision is significant, because it may start a trend of coal mines being successfully stopped as a result of climate change arguments.
The Project is a proposed open cut coal mine, located near the town of Gloucester. GRL applied to the Minister for Planning for development consent for the Project, seeking to extract 21 million tonnes of coking coal from the mine. The Minister, through the delegate Planning and Assessment Commission, refused the application. GRL appealed to the Land and Environment Court: Gloucester Resources Limited v Minister for Planning  NSWLEC 7.
The Land and Environment Court exercises the function of the Minister as the consent authority to determine the development application, by balancing the public interest in approving or disapproving the Project and having regard to the competing economic and other benefits and the potential negative impacts the Project would have if approved.
In performing this exercise, Justice Preston, Chief Judge of the Land and Environment Court found the Project would have significant adverse impacts on the visual amenity and rural and scenic character of the Gloucester valley, significant adverse social impacts on the community and significant impacts on the existing, approved and likely preferred uses of land in the vicinity of the Project (generally residential, agri-business, tourism and agriculture). His Honour held that, while the Project should be refused for these reasons alone, the greenhouse gas (GHG) emissions of the Project and their likely contribution to adverse impacts on the climate system, environment and people adds a further reason for refusal.
The climate change challenge to the Project was led by Gloucester Groundswell Inc, a local community action group joined to the proceedings, which led evidence from earth systems scientist Professor Will Steffan.
GRL did not contest the need to reduce anthropogenic GHG emissions, but argued that this did not prevent the approval of the Project.
In relation to the climate change arguments, his Honour found that:
As yet, no coal project in Queensland has been stopped on climate change grounds. Climate change objections to the grant of mining leases for coal have previously been raised in the Land Court of Queensland, but have not been successful.
It has been established in Queensland that:
Therefore, it remains open for the Land Court to recommend the refusal of the grant of a mining lease on the basis of climate change objections. Ultimately, the Rocky Hill Coal Project decision highlights the importance of expert evidence in the consideration of climate change impacts and any assessment of the public interest. While the Land Court of Queensland has previously made factual findings based on the expert evidence before the court that if a proposed mine did not supply the coal, another mine with potentially lower quality coal and higher GHG emissions would meet the demand, this can be contrasted with Justice Preston’s finding that GRL had not established on its evidence that this form of market substitution would occur in respect of the Project.
For more information or discussion, please contact HopgoodGanim Lawyers’ Resources and Energy team.