The Federal Court dismisses judicial review challenges brought by the Environment Council of Central QLD Incs in relation to the Ministerial approvals for two coal mining expansion projects in NSW

ECoCeQ v Minister for the Environment and Water (No 2) [2023] FCA 1208

Summary

The Federal Court dismissed two judicial review proceedings brought by the by the Environment Council of Central Queensland (‘ECoCeQ’) regarding the climate change effects of scope 3 coal mining emissions to Matters of National Environmental Significance under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (‘the Act’).

Facts

In July 2022, in reliance on section 78A of the Act, Environmental Justice Australia on behalf of ECoCeQ requested reconsideration of a decision by the Minster to approve two mining proposals made by Narrabri Coal and MACH Energy, for mining projects in Narrabri and Mount Pleasant, respectively. ECoCeQ argued that these decisions should be revoked due to the existence of substantial new scientific material concerning the impacts of greenhouse gas emissions from mining on Matters of National Environmental Significance that are protected under the Act.

While the Minister agreed to reconsider the decision, she ultimately decided not to revoke her previous decisions relating to Narrabri Coal and MACH Energy. In making this finding, the Minister looked at section 527E of the Act concerning indirect impacts. Section 527E of the Act states:

Section 527E

Meaning of impact

(1) For the purposes of this Act, an event or circumstance is an impact of an action taken by a person if:

(a) the event or circumstance is a direct consequence of the action; or

(b) for an event or circumstance that is an indirect consequence of the action--subject to subsection (2), the action is a substantial cause of that event or circumstance.

…

then that event or circumstance is an impact of the primary action only if:

(e) the primary action facilitates, to a major extent, the secondary action; and

(f) the secondary action is:

(i) within the contemplation of the primary person; or

(ii) a reasonably foreseeable consequence of the primary action; and

(g) the event or circumstance is:

(i) within the contemplation of the primary person; or

(ii) a reasonably foreseeable consequence of the secondary action.

The Minister found that the proposed mining projects would not be a substantial cause of physical effects of climate change for two reasons:

  • The mining projects would not cause any net increase in greenhouse gas emissions.

  • Even if there were an increase in greenhouse gas emissions, it would not be substantial.

In making these findings the Minster identified “a number of variables” that effected the likely contribution of the mining proposals towards a net increase in global greenhouse gas emissions and average temperature:

  • Emissions may be offset by the implementation of policies / regulations with other countries in which prospective buyers operate.

  • Countries where prospective buyers operate tend to have their own nationally determined contributions under the Paris Agreement.

  • Emissions will be likely subject to emissions reduction policies of consuming corporations.

  • The total global level of greenhouse gas emissions may not be affected if the proposed mining proposals do not go ahead.

  • If the proposals did not go ahead, it is reasonable to assume prospective buyers will purchase an equivalent amount of coal from other suppliers.

The Minister made clear that while she acknowledged the mining projects would indirectly contribute to climate harm, the issue came down to the question of ‘substantiality’.

Decision

In bringing its action, ECoCeQ argued 10 grounds, including that the Minister:

  • failed to protect the environment from climate harm when approving the two extensions to proposals by Whitehaven at Narrabri and MACH Energy in Mount Pleasant;

  • incorrectly engaged in counter-factual reasoning by netting off the likely emissions from total global emissions;

  • misdirected herself as to the range of future scenarios she should consider;

  • did not correctly apply the precautionary principle; and

  • made irrational findings.

With respect to the relevant counterfactual for each proposal, the Court found the Act was silent on the specific nature of the inquiry required in the circumstances, specifically that the Act neither prohibits nor requires consideration of the counterfactual should the mining proposals go ahead. Instead “the relevant impact must be the difference between the position if the action occurs and the position if it does not”.

ECoCeQ argued that the mining proposals would result in a net increase to global greenhouse gas emissions and global temperatures by 0.00024°C, which the Minister had concluded was “very small” and therefore not a substantial cause of the physical effects on climate change. The Court found the Minister’s process and application of the test to be reasonable and conducted in a manner “that reveals no error on her part in misunderstanding the substantial case requirement of s 57E”.

In addition, the Court said the Minister’s reasons were intelligible, well explained and not lacking in commonsense. The Court observed that the Act did not require the Minister to reason in a particular way, but did require her to undertake an evaluative assessment to reach the state of satisfaction required by s 78(1)(a).

Commentary

This decision by the Federal Court was the first challenge to a controlled action decision under the EPBC Act on the grounds of climate change. It highlights the need for further policy reform, specifically “for Parliament to consider whether the Minister’s powers must be exercised to explicitly consider the anthropogenic effects of climate change in the matter the applicant submits they must”.

ECoCeQ appealed to the Full Federal Court, which was heard over two days in February 2024. The appeal judgment is currently reserved.

Credit: This summary was prepared by Lucy Johnson.

Case NotesTash KhanEnvironmental and Climate Justice