How does climate change affect our laws? Let’s discuss.
We know that the vast majority of climate scientists say that climate change is real, and that it is caused by human activity.
The earth is warming. Carbon dioxide and sea levels are rising and will continue to rise. Flooding, fire and drought will get worse, and occur more often. To prevent disaster, we need to change our lifestyles.
What do the courts have to say about climate change?
Gloucester Resources Limited v Minister for Planning
Earlier this year, the NSW Land and Environment Court delivered judgment in Gloucester Resources Limited v Minister for Planning  NSWLEC 7.
This judgment was reported around the world – the first time an Australian court has refused a development project on the basis of its climate change impact, and Australia’s obligations under the Paris Agreement.
The Applicant’s Arguments
Gloucester Resources Ltd, the Applicant, proposed building a 500-hectare open-cut coal mine in the pristine Gloucester Valley. In 2017, their development application was rejected by the NSW Planning Assessment Commission. Gloucester Resources subsequently appealed the decision in the NSW Land and Environment Court.
In their submissions, Gloucester Resources did not dispute the reality of climate change, but suggested that the climate argument was a “side show and a distraction” (at ). They gave several reasons in favour of the project’s approval:
1. Any greenhouse gas emissions from the mine could be mitigated with the use of carbon sinks. This argument was rejected, given no evidence was tendered showing Gloucester Resources planned to balance emissions with sinks.
2. Emission reductions should be focused on (or limited to) projects that make the greatest environmental difference, and cause the least economic and social harm. The Court rejected this argument. The Court noted that it was obligated to decide whether to grant consent to specific developments, and that it “would not be rational” to approve this development simply because “greater emissions reductions could be achieved from other sources at lower cost by other persons or bodies” (at ).
3. Market substitution means that comparable greenhouse gas emissions will occur, whether or not the Gloucester project is approved. If Australian coal mines do not meet demand, investment will flow to large coal mine projects in India and Indonesia. This again was rejected, because market substitution was not guaranteed to occur.
4. Finally, any emissions created are justified because the project will produce coking coal for steel production, and there are few substitutes to this critical resource. This was rejected, given that current and future demand for coking coal can be met by other existing and approved coal mines.
The Court’s View
Rejecting all of these arguments, the court concluded that the proposed mine would be “in the wrong place at the wrong time” (at ). Specifically, the mine would:
- Be incompatible with residential life and other land uses in the Gloucester Valley;
- Have a negative social impact, including noise, dust and visual impacts; and
- Increase greenhouse gas emissions at a time when “a rapid and deep decrease” in emissions is needed.
Under the Environmental Planning and Assessment Act 1979 (NSW), the court was required to consider the public interest and principles of ecologically-sustainable development. Of particular significance was the concept of “intergenerational equity”, requiring the present generation to ensure that the environment remains healthy, diverse and productive for the benefit of future generations.
Given Australia’s international obligations, public support for climate action, and the orthodox nature of the judgment (that is, applying established EPA Act principles), it is likely that this case will be influential.
Climate change impact will be a significant consideration in future Australian court decisions. Our courts are independent, impartial and evidence-based. We must believe what they say.
For more information about the proposed mine and the decision, read this article in The Guardian.
If you need advice about any proposed development which might be affected by climate change, then give Greg Martin a call on (02) 9687 9322. For all your legal solutions.