Wednesday’s Federal Court decision in the “Living Wonders” case highlights how our federal environmental laws are wholly inadequate to address the largest global environmental threat: climate change.
The main Commonwealth environmental act, the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC) requires that all “actions” that are likely to have a significant impact on a number of so-called “matters of national environmental significance” undergo environmental assessment and require ministerial approval to go ahead. These protected matters include world heritage places, national heritage places, internationally protected wetlands and listed endangered species, amongst others.
However, there is no climate trigger: that is, projects that will cause large amounts of greenhouse gas emissions are not required to undergo environmental assessment and do not require ministerial approval because of their climate impacts.
In 2022 the Environment Council of Central Queensland, represented by Environmental Justice Australia, asked Environment Minister Tanya Plibersek to reconsider 19 approvals of coal and gas that had been granted by her predecessor. They relied on a little-used provision in the act which allows the minister to revoke and remake an earlier decision if there is “substantially new evidence” provided.
In support of their request, they prepared an impressive body of evidence that demonstrated how climate change is impacting or likely to impact protected matters under the act. They used a code-driven text-mining process to review and analyse all relevant sources of information, such as management plans and conservation advice, to identify how these places and species are vulnerable to climate change.
In May 2023, Plibersek reconfirmed the earlier decisions made, which were in relation to three coalmines: the Mount Pleasant coalmine, the Narrabri coalmine and the Ensham coalmine.
Her decision accepted “in a general sense” that the evidence presented by the Environmental Council of Central Queensland showed that climate change and its flow-on effects are affecting or will affect heritage places, ecosystems and species protected under the act, and that the combustion of coal on a global scale increases the effects of climate change.
However, she determined that the specific coalmines being considered were not a “substantial cause” of the impacts of climate change on the matters protected under the act. In particular, she determined that there was no evidence that the proposed coal mines will cause a net increase in global emissions and global average temperatures, and even if this could be demonstrated, the contribution of these proposed mines to global climate change was “very small”.
She relied on evidence that the annual emissions from the Mount Pleasant mine would only represent 0.043% of annual greenhouse gas emissions. However, as the lifetime emissions are estimated to be 876 million tonnes, almost double Australia’s annual domestic emissions of 464 million tonnes, and almost 400 times the annual emissions of small island states such as the Maldives. Moreover, it ignores how climate change is precisely a problem of “death by a thousand cuts” and the cumulative global impacts of multiple actions around the world.
Her determination that the project would not contribute to a net increase in greenhouse gas emissions relied on the “market substitution defence”, the argument that stopping any particular project won’t have a net impact on global emissions as it will be replaced by another project elsewhere in the world. This argument has been relied on by the fossil fuel industry in climate litigation in Australia and applied in several Queensland cases. It has been strongly criticised by legal academics, and its premises and factual accuracy have recently been carefully dismantled by the NSW Land and Environment Court in the 2019 in Gloucester Resources v the Minister of Planning decision, and by the Queensland Land Court in Waratah Coal v Youth Verdict, 2022.
In response, the Environmental Council of Central Queensland sought a review of the lawfulness of the minister’s decision in the Federal Court. Yesterday, Justice Shaun McElwaine held that the minister has not made any errors of law in making her decision.
There have been almost two decades of strategic climate litigation in Australia which has tried and failed to challenge EPBC act approvals on climate grounds, including a 2006 case challenging the impacts of two coalmines on the Great Barrier Reef, and in litigation against the Adani Carmichael mine in the Federal Court.
In the summary of his ruling, Justice McElwaine stated that it is up to “Parliament to consider whether the minister’s power must be exercised to explicitly consider the anthropocentric effects of climate change”.
It’s clear that our national environmental laws are not fit for purpose and need to be reformed. There have long been calls to introduce a “climate trigger” into the act. Indeed, when the act was first proposed back in 1998 by the Howard government, the ALP and Greens sought such an amendment. A bill proposed by Greens leader Adam Bandt has been tabled in Parliament, seeking to amend the EPBC act to require actions that emit between 25,000 and 100,000 tonnes of greenhouse gases to require assessment and approval.
Additionally, the “Duty of Care” bill introduced by independent Senator David Pocock would require decision-makers to consider the health and well-being of children in Australia when making certain decisions and would prohibit certain decisions about the exploration and extraction of coal, oil and natural gas if it would pose a material risk to the health and well-being of children in Australia.
Although Australia has now committed to reducing our domestic emissions by 43% by 2030, and to achieve net zero by 2050, state and federal governments continue to support the expansion of our most significant contribution to global climate change: our coal and gas exports.
Australia is already the third largest exporter of fossil fuel globally, it is one of the countries with the biggest expansion plans as well as one of the highest subsidizers of fossil fuels. According to the Australia Institute’s Coal Mine Tracker there are 29 approved and proposed coal projects that would generate over 12 million tonnes of emissions.
The recent Oil Change International Planet Wreckers report has shown that Australia is one of only 20 countries responsible for almost 90% of carbon pollution from new coal and gas fields between 2035 and 2050. Over 50% of this planned expansion comes from just five countries: the United States, Canada, Norway, the United Kingdom and Australia.
The inescapable scientific reality is that if we are to limit warming to 1.5 degrees, we must keep fossil fuels in the ground. The recent IPCC AR6 Synthesis Report made clear that the greenhouse gas emissions from existing fossil fuel mines and infrastructure would already exceed the carbon budget for limiting warming to 1.5 degrees. The International Energy Association’s modelling has shown that in order to achieve net zero by 2050, there can be no new oil or gas field approved nor any new coal mines or mine extensions.
The record-breaking global temperatures experienced last month have been described by climate scientists as “absolutely, gobsmackingly bananas”. An urgent overhaul of how our national environmental laws regulate “planet-wrecking” fossil fuel projects is long overdue.
