‘Groundbreaking’: High Court quashes coal mine expansion over climate emissions

Approval for a major coal mine expansion has been declared invalid by the High Court in a decision that will force NSW planning authorities to reckon with emissions from Australian coal burnt overseas.

Environment Minister Murray Watt said the government was still considering the 111-page judgment handed down on Wednesday, while casting doubt on whether the decision would set a national precedent.

But the federal opposition is demanding the Albanese government intervene should the NSW Labor government fail to urgently pass new laws. The Minerals Council echoed the call for new legislation, arguing that “this type of activist ‘lawfare’ conducted against approved mining projects creates uncertainty for workers, communities and those seeking to invest in NSW”.

The NSW government has been contacted for comment.

Anita Hart, a lawyer for the local environment group fighting the project, celebrated the victory, calling it “a groundbreaking decision for climate law in Australia” that would be studied closely by other countries.

The Greens’ new deputy federal leader Steph Hodgkins May said it would send a clear message to both government and business that “when Australian coal is burned overseas, the climate damage doesn’t magically disappear at the port”.

The case revolved around an open-cut coal mine at Mt Pleasant in the NSW Hunter region, a political battleground eyed by both the Coalition and One Nation.

Operator MACH Energy Australia won approval in 2022 to significantly expand the mine and extend its life by 22 years. It outlined measures to address domestic greenhouse gas emissions from the project.

But it also concluded that 98 per cent of the total emissions would be classed as “Scope Three”, a category for further use of a product, such as the burning of coal for energy after export.

The operator argued these emissions would be managed “in accordance with customer countries commitments under the Paris Agreement” and would not “contribute to Australian greenhouse gas emissions”.

Neither the NSW Department Planning and Environment or the ultimate decision maker, the Independent Planning Commission , took issue with the company’s position.

The mine operator survived one legal challenge from environmentalists known as Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc, before the tables then turned in the NSW Court of Appeal.

The High Court on Wednesday upheld the lower court’s decision , but on a different basis.

Under NSW law, the Independent Planning Commission needed to consider imposing conditions on an approval to ensure “that greenhouse gas emissions are minimised to the greatest extent practicable”.

Justice James Edelman said “members of the Commission did not address that requirement with respect to scope 3 emissions, amounting to 98 per cent of the project’s emissions, because they considered that those emissions would be accounted for in the countries to which the coal was exported”.

Edelman continued that “by focusing only upon two per cent of the project’s emissions”, the commission had failed to in its duty to consider minimisation conditions.

Justice Michelle Gordon said it was not the High Court’s role to weigh in on the merits of this requirement or to say what conditions might be imposed to minimise emissions. But Gordon found the failure to at least consider conditions was a “material” error that invalidated the expansion approval. Justice Robert Beech-Jones agreed.

Two other judges, Chief Justice Stephen Gageler and Justice Jayne Jagot, disagreed with the majority in finding that the planning commission had adequately considered emissions overseas.

They quoted the commission’s finding that “with the adoption of the Paris Agreement, almost all countries have committed to reduce global [greenhouse gas] emissions and to track their
progress in doing so”.

Environment Minister Murray Watt said the government had not had an opportunity to read the judgment in full, but its early assessment was the impact would be limited to NSW.

“It doesn’t automatically transfer to Commonwealth decisions or Commonwealth legislation,” Watt told News24 shortly after the decision was handed down.

Watt reiterated that Scope 3 emissions did not need to be considered under federal law but said other states may be impacted depending on their legislative settings.

In a joint statement released on Wednesday afternoon, Opposition Leader Angus Taylor and Nationals leader Matt Canavan described the decision as “absurd”, seeking to blame Labor for the ruling.

“The decision turns on the wording of NSW planning law. That means it can be fixed, and fixed quickly. The Coalition calls on the Minns government to act immediately to introduce legislation amending the Environmental Planning and Assessment Act.

“It must make clear that overseas emissions from Australia’s exported resources are not a consideration in project approvals,” the Coalition leaders said.

“If the NSW state government won’t act, the Albanese Labor government should legislate to fix this issue and provide certainty to workers, business and our international energy partners.”

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