Mixed responses met Chief Justice Preston of the NSW Land and Environment Court when he handed down his judgement in Gloucester Resources Ltd v Minister for Planning in February this year. Hopeful murmurs of a response to climate change from the courts despite the Government’s failure to act were crowded out of the public discourse by histrionic dogwhistling about judicial activism. Over more than 150 pages, the sprawling judgement gave many uncontroversial reasons for the rejection of a proposed mine in Rocky Hill, NSW. One justification, however, was particularly novel. The mine’s contribution to global climate change via the downstream emissions of overseas end-users of coal was a persuasive reason for its refusal. Now, after the dust has settled, the NSW Government has tabled a bill that would kill the authority of this case in the cradle and disempower the Independent Planning Commission (IPC), a planning authority that sits independently of the Department of Planning, Industry and Environment.
The case for refusal on this basis was straightforward. This mine would fly in the face of efforts to keep global temperature increases below 1.5º-2º past pre-industrial levels, as per Australia’s obligations under the Paris Agreement. What made Chief Justice Preston’s judgement controversial was that it based this refusal on the downstream emissions of third-parties (defined as Scope 3 emissions under the GHG Protocol for carbon accounting) rather than emissions directly produced by the mine. While consideration of downstream emissions is mandated by the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (“SEPP”) s 14(2), it had not been enforced as a justification for refusal before.
This justification is intuitively legitimate. The amended Environmental Impact Statement (a publically available document upon which the Department of Planning, Industry and Environment approves or rejects a development) of the project estimated the mine would produce 1,808,576 tonnes of CO2 equivalent emissions under Scopes 1 and 2 (direct emissions and emissions from purchased energy respectively), and 36,283,171 tonnes under Scope 3. The downstream emissions dwarf the emissions directly produced by the project for obvious reasons: the raison d’etre of coal is to burn. Consider this in the context of the Australian debate on climate action. Pundits like Alan Jones speciously assert that Australia’s contribution to global carbon emissions, at 1%, is so low as to invalidate any economic forbearance in the name of climate action. This figure ignores the Scope 3 emissions that we produce, and which are, in the case of the Rocky Hill mine, over twenty-times greater than the emissions from which the figure is calculated. Our laws perpetuate this dishonest miscalculation, with the National Greenhouse and Energy Reporting Act 2007 mandating the reporting of only Scope 1 and 2 emissions, without regard to Scope 3.
The reasoning in the Rocky Hill case was a lucid recognition of the true impact of our mines on climate change, and would have lead the way in state-level case law by recognising the incompatibility of our mining economy with action on the world’s most pressing existential threat. While the judgement considered the mine’s other flaws (including planning, visual and social issues) to be better reasons for refusal, the recognition of its environmental flaws as a further reason for refusal could be applied to prohibit any future mining project in NSW. In the past few months, this significance has become clear: citing Chief Justice Preston’s ruling on Scope 3 emissions in the Rocky Hill case, the IPC rejected a proposed mine in the Bylong Valley in September. In August, it gave consent for the United Wambo open-cut coal mine, on the strict condition that it prepared and complied with an export plan under which its coal would only be sold to countries that are signatories to the Paris Agreement, or an equivalent plan approved by the Department of Planning, Industry and Environment.
It may come as no surprise that the Coalition Government has seen this as an intolerable slight and is now legislating to kill the authority of the judgement in Rocky Hill. On October 24, Planning Minister Rob Stokes introduced a bill in the NSW Parliament that would amend the Environmental Planning and Assessment Act 1979 to forbid the IPC from imposing conditions “for the purpose of achieving outcomes or objectives relating to the impacts occurring outside Australia … as a result of the development”. The bill would also amend the SEPP to omit specific reference to downstream emissions in s 14(2), which underpinned Chief Justice Preston’s judgement. The combined effect of these amendments is to make it effectively impossible for courts or statutory authorities to consider the downstream emissions (and, by extension, the true environmental impact) of any project.
This bill is a bald-faced attempt to disempower the IPC now that it stands a chance at effectively stopping environmentally destructive investments. Days before the bill was announced, and only weeks after the Bylong Valley mine was rejected, Rob Stokes announced a hasty review into the IPC to be performed by the Productivity Commission, calling it “faceless”. This hasty turn is speculated by many figures (including former ICAC commissioner Anthony Whealy) to be the result of pressure from the mining industry, with no such reservations being voiced by the Government since the IPC was reconstituted in March 2018. The independent authority was tasked with “determin[ing] State significant development applications where there is significant opposition from the community” and its independence was emphasised to distinguish it from its predecessor, the Planning Assessment Commission (PAC). The ICAC had praised the PAC in its time for warding off the corruption engendered by ministerial discretion over the award of mining licenses.
The moves the Coalition have made on behalf of the mining lobby (which, coincidentally, recently fronted the ICAC over suspicions of undue influence over the Government) are as disproportionate as they are absurd. A statutory body tasked with scrutinising planning issues with regard to significant community concerns obviously cannot fulfil that task if its awareness ends at the shoreline of a country with a globally interconnected economy and population. It is now clear that the initial discourse over the Rocky Hill decision earlier in the year was plainly wrong: Chief Justice Preston’s decision was not some discretionary abuse of judicial power, but was a direct reading of the regulations provided in the SEPP. Now that the courts and authorities have begun implementing the Government’s own laws, the Government is bending over backwards to contradict itself at the behest of lobbyists.
Despite all of this, few people seem to care. Media coverage of the issue has seemed to fixate on foibles taking place around the IPC, and not the broader picture of environmental deregulation that surrounds the misguided proposals. While active and radical measures are required to mitigate the environmental disaster that looms over the 21st Century, uninspiring technicalities like s 14(2) of the SEPP can provide an important stopgap when courts and bureaucrats show themselves to be increasingly willing to eke out change from beneath the Government. Even if these technicalities cannot bring about the structural changes our world needs, they can play an important role in the interim by blocking the creation of new mines.
