As many as 19 big coal and gas proposals in Australia could be forced to be assessed for potential damage to species and environments — through their impacts on climate change — if a new legal application is successful.
According to one expert, if the application reaches the courts, it may set a precedent, forcing the consideration of climate change in assessments of fossil fuel projects under Australia's federal environment laws for the first time.
The Environment Council of Central Queensland (ECCQ) has written to federal Environment Minister Tanya Plibersek, formally requesting that she reconsider how 19 coal and gas project approvals are assessed under federal environment law, and to consider the broader effects of climate change and how emissions from these projects could damage environments.
Represented by lawyers at Environment Justice Australia, the environmental group argues those 19 coal and gas projects are likely to damage 2,121 matters of national environmental significance, including the Great Barrier Reef, koalas and dugongs.
ECCQ president Christine Carlisle explained what her group was seeking.
"We're asking the minister to reconsider those assessments in the light of the enormous amount of evidence that we've given to her about the impact of climate change on matters that she's required to consider," Ms Carlisle said.
The projects subject to the legal requests include Whitehaven's Narrabri coal mine, Clive Palmer's Waratah coal mine and Woodside's North West Shelf Project Extension.
Some of the decisions — about what sort of impacts the projects were likely to have — were made by ministers or their representatives a decade or more ago.
Environment Justice Australia lawyer Hollie Kerwin, who is representing the environment group, said times had changed since earlier decisions were made.
"We're asking [the minister] to reconsider those decisions that were made some time in the past — often in periods where the government didn't properly take into account the science on climate change," Ms Kerwin said.
Damian Dwyer, the acting chief executive of the Australian Petroleum Production and Exploration Association (APPEA), said Australia's federal environment laws needed to be simplified in order to benefit both the environment and business.
And he said the industry was acting to lower its emissions.
"APPEA members take their emissions reduction responsibilities seriously, the oil and gas industry has always been committed to protecting the environment and members comply with a raft of regulations and laws to do just that already," said Mr Dwyer.
'Part of our essence'
Quandamooka man Darren Burns is the land and sea manager for the Quandamooka Yoolooburrabee Aboriginal Corporation, which has partnered with the Queensland government to conserve dugongs.
He says climate change is devastating traditional lands and waters around Minjerribah/Stradbroke Island.
"Dugongs are a part of our essence. We're saltwater people," Mr Burns said.
"Dugong numbers are very low this year, we believe, through the flooding that's occurred."
As the climate warms, the atmosphere is able to hold more water, which results in heavier rainfall. Heavy rainfall and flooding can wash sediment into the water, which smothers seagrass, the main food source for dugongs.
Mr Burns sees other changes too.
"We see that the mangroves are changing around here. As you know, the mangroves are the nurseries for the bay."
What exactly is the group asking for?
For each of the proposed projects, a decision has already been made by previous environment ministers about what threatened species, World Heritage sites and other "matters of national environmental significance" they are likely to significantly impact.
It is potential damage to those species and sites that must be assessed by the minister, or her delegate, when she considers final approval for the projects, and what conditions might be placed on any approval.
However, in each of the 19 projects, no assessment of how its activities would contribute to climate change — nor of the flow-on effects of that on thousands of other environmental matters of concern — is currently required under federal environmental law.
The letters ask for those decisions to be "reconsidered", under a rarely used mechanism in Australia's federal environment laws.
If the request was properly submitted, Ms Plibersek is now required to consult with other ministers and states, and to invite public comment on the request.
"For many, many, many of these pending coal and gas projects that are on the minister's desk, climate change and the risk of climate change driven by new extraction of fossil fuels on all of these living wonders, has never been properly taken into account," Ms Kerwin said.
To be successful, the group's request needs to contain "substantial new information" about the proposals.
To fulfil that requirement, in addition to 19 letters arguing the legal case for the reconsideration, the team attached more than 3,000 pages of documents establishing how climate change will impact those 2,121 species and places, as well as two expert scientific reviews.
The documents provide evidence that 366 threatened animal species, 1,048 threatened plant species, 17 World Heritage sites, 74 threatened ecological communities and 133 protected migratory species were likely to be impacted by climate change, as well as many more marine protected areas, RAMSAR wetlands and other matters of national environmental significance.
Among the documents the environment group says constitute new information, is mapping of the impacts of the Black Summer bushfires on environments and species protected by federal environmental law.
They conclude that it is an "inescapable" conclusion that hundreds of species will be impacted by climate change, which will be worsened by the coal and gas projects.
Possible precedent
Ms Kerwin said that, if the minister agrees with her client, then it could have implications for future coal and gas projects.
"It is possible then that, if another new gas and coal project came before her, she would also apply the same analysis and the same decision to that new [proposal]," she said.
And, if the minister doesn't agree with the arguments set out by the team, she said, it was possible — in some circumstances — to have the decision reviewed by a court.
University of Sydney climate law specialist Laura Schuijers said that, if the matter did go to court, and was found in the environment group's favour, it could set an important precedent.
"It would broaden the scope of what's required under impact assessment for projects that are considered to be contributing in a material way to climate change," she said.
Ms Carlisle said the request was being prepared last year, long before they knew who would be in government.
In a statement to the ABC, Ms Plibersek said she had received "a number" of reconsideration requests.
"I will be asking my department to carefully examine each to see if it meets the legislative requirements for a reconsideration request," she said.
